Full case report
Phillips v (1) News Group Newspapers Ltd (2) Glenn Mulcaire; Coogan v (1) News Group Newspapers Ltd (2) Glenn Mulcaire
Reference  EWCA Civ 48
Court Court of Appeal
Judge Lord Judge, LCJ, Lord Neuberger MR, Maurice Kay LJ, VP
Date of Judgment 1 Feb 2012
Protection from self incrimination – s. 72 Senior Courts Act 1981 – meaning of ‘intellectual property’ – compatibility of s. 72 Senior Courts Act 1981 with Art 6 ECHR
In the context of two claims relating to mobile telephone interception the question arose as to whether Glen Mulcaire (D2), the private investigator employed at one time by News Group Newspapers Ltd to work on its former News of the World title, could rely on his common law right to privilege from self-incrimination (‘PSI’) in order to negate the obligation to provide information requested from him by the claimants.
The issue arose similarly in each claim. In Phillips C had applied for an order that D2 provide a sworn affidavit identifying: a) the individuals who had instructed him directly or indirectly to intercept her voice messages and the voice messages of others working for Max Clifford (Ms Phillips’ then boss); b) the nature of the interception he was instructed to carry out; and c) similar facts about the interception of voice messages of another employee of Mr Clifford. D2 objected on the ground that it would tend to incriminate him, because intercepting voice messages is an offence under s1(1) of the Regulation of Investigatory Powers Act.
C contended that, inter alia, s72 Senior Courts Act 1981 (s. 72) applied to this action, which provides that PSI cannot be relied on in, broadly speaking, intellectual property disputes.
The issue came before Mann J who held that whilst D2 was prima facie able to rely on PSI, s72 applied, and so he was prevented from doing so.
In Coogan C made similar information requests to D2 in his Particulars of Claim, which again he refused to accede to for the same reasons he gave in Phillips. Vos J handed down a judgment on the matter in Coogan also holding that s72 was applicable, thereby depriving D2 of a defence of PSI.
(1) Was the information obtained by D2 properly classed as ‘intellectual property’ such that it fell within the ambit of s72?
(2) If it was properly classed as ‘intellectual property’ for the purposes of that section:
(a) If D2 were required to provide the information he was ordered to, would s72 be inapplicable in any event given that he would be at risk of being prosecuted for an offence which is not a ‘related offence’ under s72(3)?
(b) Should the Court make a declaration of incompatibility on the ground that s72 is inconsistent with Art 6 ECHR?
(3) In respect of Coogan:
(a) Was Vos J wrong to strike out the passages in D2’s Defence that pleaded PSI to justify his refusal to deny or admit certain allegations?
(b) Should additional safeguards be imposed over and above those provided in s72(3) imposing restrictions on what information D2 is required to provide?
(1) s72 was applicable in both cases and had the effect of depriving D2 from relying on PSI as a defence because the information intercepted from the voicemail messages falls within the definition of ‘intellectual property’ as contained in s72(5). The term ‘technical or commercial information’ within the definition of intellectual property meant “information which is commercial in character, rather than the fact that is has value”, and s72 covered both confidential and non-confidential commercial information (the latter by virtue of the words ‘or other intellectual property’ that were included in s72(5)).
Provided that there was evidence establishing that a significant amount of confidential information was ordinarily included in the voice messages, s72 could be invoked. Where a defendant has intercepted voicemail messages there must be a strong presumption that at least some of the information contained in the messages was confidential.
Given the nature of the messages likely to have been received on both Ms Phillips’ and Mr Coogan’s mobile telephones their claims therefore constituted ‘proceedings for infringement of rights pertaining to’ confidential information within s72(2)(a).
(2)(a) Where a person intercepts voicemail messages on the instructions of another those instructions can be said to be part of the interception itself, and therefore requiring D2 to provide information as to the identities of those third parties did not fall foul of the ‘related proceedings’ condition in s72(3). By ordering that D2 provide that information it therefore was not trespassing outside the confines of s72.
(2)(b) A finding that s72 was incompatible with Art 6 ECHR was not supported by Strasbourg jurisprudence. In any event, any argument to this effect was merely speculative at this stage; D2’s Art 6 ECHR rights would only become relevant if the information obtained was actually used in criminal proceedings against him.
(3)(a) Vos J did not err in striking out the parts of D2’s Defence. It would be perfectly possible for D2 to apply for a stay or adjournment without pleading PSI as a reason for a sparse defence, instead justifying the reason in a supporting witness statement or affidavit.
(3)(b) The Court should only impose additional safeguards where there was good reason for doing so, and here that was not the case. In addition, various judicial dicta deprecating PSI did not encourage any judicial extension of safeguards in respect of s72.
A useful decision of the CA grappling with the existence and scope of PSI at common law, as curtailed by various statutory exemptions, including s72. Whilst Lord Neuberger MR, who gave the only reasoned judgment, expressed a clear view that PSI has “had its day”, he explicitly acknowledged that “PSI remains part of the common law, and …it is for the legislature, not the judiciary, to remove it, or to cut it down.”
Payne Hicks Beach for Muclaire; Schillings (Coogan); Taylor Hampton (Phillips)
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 22nd Edition of Clerk & Lindsell on Torts, published by Sweet & Maxwell. Further info here.