(Estimated reading time: 6 minutes 12 seconds)
One could be forgiven thinking that phone-hacking has been in the news for decades and that the Mirror Group and the News Group must have very deep pockets and very understanding shareholders. They have of course only themselves to blame in their shameless pursuit of profit and pandering to the public thirst for celebrity factoids and gossip.
If soldiers suffer from battle fatigue, doctors from physician fatigue, I wonder if lawyers suffer from litigation fatigue?
In April last year Mr. Justice Fancourt (the managing judge for this litigation) heard six summary judgment / strike out applications issued by MGN Limited (“MGN”) relating to breach of privacy claims filed against it.
- The applications were made against the backdrop of a third trial of a large batch of similar phone hacking claims against MGN listed for hearing in May 2023.
- The hope and expectation was for these to be the test cases on the back of which the long running and group managed phone hacking litigation could finally be brought to an end.
- The main thrust of the applications were that the phone hacking activities of Mirror Group journalists had been known about and had been in the public domain for a very considerable period of time and that the claims were now statute-barred.
The argument ran that any existing claimant or indeed potential new claimant who relies on articles published about them and their personal lives between 2000 and 2009 knew or must have had reason to suspect within the primary limitation of period of six years of the date of publication that the information published about them had been obtained by unlawful means; they should have therefore brought their claims within that period and should not now, a considerable number of years later outside the primary limitation period, be permitted to pursue their claims.
There is ample evidence to support this argument and MGN went to lengths to describe the numerous articles about, investigations into and persons who had been the victims of the phone hacking activities of errant MGN journalists. Phone hacking seemed to be consistently in the news from the early 2000s onwards culminating in the widely publicised Leveson Inquiry of 2011/2012 and various criminal proceedings against MGN journalists.
Phone hacking claims ensued which were highly publicised.
The claimants’ main defence to the contention that their claims are time-barred is that of “concealment”. The relevant facts to their causes of action were deliberately concealed by MGN and they could not have with reasonable diligence discovered the concealment. This was the so called “s32” argument, referring to s32 of the Limitation Act 1980 which delays the start of the six year limitation period where there has been a deliberate concealment by the defendant of the relevant facts upon which to found the cause of action. There is a qualification to this provision and that is the time is only frozen until the claimant discovered the concealment or could with reasonable diligence have done so.
It was MGN’s contention that private information about claimants actually published could not by definition have been “concealed”. The stakes were very high indeed, as MGN’s defence of limitation would prevail unless the claimants could prove that s.31(1)(b) of the Limitation Act 1980 (deliberate concealment by MGN of the facts relevant to the claimant’s claim) applied and deferred the commencement of the six year limitation period.
Judgment
Judgment was handed down on 27 May 2022 (Various Claimants v MGN Ltd [2022] EWHC 1222 (Ch)). In short, the summary judgment applications were dismissed; however, the “publication claims” were struck out. Mr. Justice Fancourt’s analysis was that there were two different and distinct causes of action pleaded under the umbrella term “misuse of private information”, these were:
- publication by MGN of the articles containing the private information garnered from the unlawful activities of the Mirror journalists and other private investigators engaged on its behalf; and
- the underlying unlawful information gathering (“UIG”) activities of the Mirror journalists.
Strike out of the publication claims
In relation to the former, Fancourt J asked the question:
“…whether each claimant knew the essential facts required to plead a cause of action based on publication of information in respect of which they had a legitimate expectation of privacy.” [para 100].
“The answer is that they clearly did. There was no concealment of what was published”, “… the fact of publication without consent was all that was needed to be pleaded for that cause of action.” [para 101].
None of the claimants were:
“…unaware of the publication of intrusive and private information…”[para 102].
It was therefore appropriate to strike out or grant summary judgment in respect of the pleaded cause of action relying on publication of identified articles [para 105].
The UIG claim remains
As regards the latter (the UIG claim), MGN’s summary judgment applications were dismissed. Fancourt J accepted the claimants’ position that they suspected the information had come from sources close to them, such as from family and friends and not as a result of the unlawful activities of MGN.
The “trigger” for them thinking otherwise, was as a result of conversations they had had with their associates who had brought actions against MGN and the subsequent advice they (the claimants) had received from their lawyers.
“Reasonable diligence”
Could the claimants with “reasonable diligence” have discovered the concealment?
Mr. Justice Fancourt was clear on this, there was: “deliberate deception by MGN”[para 14]; and (referring to the previous judgments of Mann J and Arden LJ) MGN had gone to considerable lengths to try and conceal the fact that UIG had taken place by falsely attributing the source of information as from a “friend” or “pal”. Had a claimant made enquiry of MGN at the relevant time as to the source of such information they would not have been told the truth [para 130].
“It was not just that the UIG was covert but that there had been a successful attempt by MGN to deceive the claimants…about the source of the private information.” [para 143]
Warning
Mr. Justice Fancourt did however fire a warning shot across the claimants’ bows and that is that each of their individual states of knowledge or suspicion as to these unlawful phone-hacking activities will be tested at trial.
There is therefore a risk that if a judge finds on the balance of probabilities that a particular claimant did in fact have sufficient knowledge of the relevant facts to plead their case of UIG much earlier than they did, their claim could be found time-barred.
Permission to Appeal
MGN applied to the Court of Appeal for permission to appeal Fancourt J’s decision but it was refused (11 August 2022).
Conclusion
The net result is that MGN were partially successful in that they achieved the strike out of the “publication claims”. This may sound in damages at the trial (should it reach that stage). However, the claimants’ underlying UIG claim remains.
The claimants will be keen to emphasise the causal link between the information obtained by the unlawful information gathering of MGN and the subsequent publication of that information and the damage caused as a result.
As Fancourt J stated [para 16] of further judgment (Various Claimants v MGN Ltd [2022] EWHC 1394 (Ch)): “The publication of the articles was (on the facts pleaded) tortious even if the claimants are barred from bringing a claim in respect of it.”
The trial is scheduled to start in about May 2023.
If you would like more information on our ATE insurance and disbursement funding products for media litigation, or to discuss a case, please contact us on 01483 577877 or send an email to matthew.pascall@temple-legal.co.uk
