Full case report
Various Claimants v News Group Newspapers Ltd
Reference  EWHC 2119 (Ch)
Court High Court, Chancery Division
Judge Mann J
Date of Judgment 12 Jul 2013
Phone Hacking – disclosure – Norwich Pharmacal order
The Claimants (Cs) were those who believed they had been the subject of phone hacking by News Group Newspapers (D1) and Glenn Mulcaire (D2). The hearing was of an application by the Cs against the Commissioner of Police for the Metropolis (R) for disclosure of information relating to phone hacking by journalists acting for D1.
The main evidence of hacking lay with the Metropolitan Police Service (MPS), and they had, in line with an agreed declaration made by the Administrative Court in an earlier part of the litigation, informed victims that it appeared to have taken place and given them some information about it.
Following Operation Weeting, an earlier MPS investigation into phone hacking at D1, an agreed regime was put in place to permit the provision of information by the MPS to claimants. This was intended to yield information without repetitive applications for disclosure, and was consented to by the Cs and Ds, and not opposed by the MPS. Redacted information was provided to potential claimants which enabled them to litigate or enter a private arbitration scheme set up by D1.
Operation Pinetree was a new phase in the investigation, involving different facts to Operation Weeting, and a new order for a similar disclosure regime was proposed. The MPS was neutral, but D1 did not agree to it, arguing that there was no jurisdiction to make the order, and it should not be made in the circumstances.
The proposed disclosure mechanism fell into two parts. The first required the disclosure of three specific categories of documents, to be disclosed for lawyers acting for existing and potential Pinetree claimants. The second provided for disclosure of other material falling into specified categories.
The Cs relied on the court’s case management powers under CPR 3.1(2)(m), its power to order disclosure against a person not a party to the proceedings under CPR 31.17, and the Norwich Pharmacal jurisdiction. Norwich Pharmacal became the main focus of the application, and the J’s decision. The Ds argued that the MPS’s lack of involvement in the original wrongdoing prevented the Norwich Pharmacal jurisdiction from being exercised.
Could the disclosure sought from the MPS be justified by invoking the Norwich Pharmacal jurisdiction?
Making a Norwich Pharmacal order in favour of apparent individual victims in relation to the information sought:
Given the nature of the parties, the information sought and the litigation itself, the material that the MPS was prepared to make available was appropriately sought under a Norwich Pharmacal order. It went to the existence and extent of the wrong, and its proof, and it was not available elsewhere.
An analysis of the authorities showed that they contrast situations where a respondent was a mere witness with those where they are not a mere witness. While this second class of person is generally referred to in terms of participation/ facilitation, it was relevant to consider whether there are other facts short of participation/ facilitation which prevent a person being a mere witness. This analysis was consistent with the authorities.
The MPS did not merely witness the offending act and thereby acquire the relevant information. It had a duty to acquire information, and it then provided information which, as a mere witness, it would not have had to volunteer. It informed victims of their status, and of the existence of more information, and agreed it would not resist a formal claim for the information. The combination of these factors meant it was not a mere witness.
In discretionary terms it was right to make the order in favour of the individual apparent victims.
The principle in the original Norwich Pharmacal decision, that relief is available where the person against whom the order is sought is mixed up in the tortious acts of others so as to facilitate their wrong-doing, is ostensibly relatively limited in application. This decision appears to broaden its scope, given that the involvement of the MPS in the wrongdoing alleged occurred long afterwards, and cannot realistically be said to have facilitated it.
However, the J here referred to the need for flexibility recognised in the authorities, and the fact that in some instances they focus on involvement that falls short of facilitation while still being more than merely witnessing wrongdoing. He also acknowledged that the issue here had not arisen in the existing cases. The decision makes clear that successful Norwich Pharmacal applications can be brought in new and unusual factual scenarios.
Atkins Thomson for the Cs; Linklaters LLP for the Ds
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