Various v (1) News Group Newspapers & (2) Mulcaire  EWHC 397 (Ch)
Case date: 27/02/2012
Court: High Court
Area/s of law: Other
Barrister/s: David Glen
Guardian News & Media Limited, the publisher of the Guardian newspaper, applied for access to four documents on the court file in the ‘phone hacking’ litigation under CPR Part 5.4C(2) & (6). The documents sought were:
The generic Particulars of Claim compiled as a composite document for the anticipated trial of various claims in the voicemail interception litigation;
The Notice to Admit Facts (served by the Claimants on the Defendants);
The First Defendant’s response to the Notice to Admit (‘the Admissions’);
A Generic List of Issues.
The Second Defendant, Glenn Mulcaire, argued that reporting of parts of the first 3 documents would create a substantial risk of prejudice to any future criminal proceedings which might be brought against him (at the time of the application he had been arrested and bailed pending further inquiries). He had originally applied for an order under s.4(2) Contempt of Court Act 1981 postponing the reporting of the trial of initial tranche of claims in the voicemail interception civil litigation. When those claims were settled shortly before the anticipated commencement of the trial, Mr Mulcaire argued that the same principles meant that the various documents should only be released to the Guardian in a substantially redacted form.
Vos J ordered that The Guardian should be provided with copies of all four documents with a limited number of redactions made to the Generic Particulars of Claim and Generic Admissions. The specific names of journalists and executives would also be replaced by ciphers.
The parties had previously agreed that the Generic List of Issues could be provided to the Guardian in unredacted form.
The Generic Particulars of Claim were Statements of Case within the meaning of CPR 2.3(1). The fact that they had been created as a post ad hoc document, compiled after disclosure rather than at the outset of proceedings, did not alter the quality of the document. Vos J noted that the commentary in the White Book emphasised that under r.5.4C(1), a non-party … may obtain ‘a wider range of pleading… than previously (being documents that may well continue to evolve as the issues are refined up to the time of the trial’
. As such, a non-party had a prima facie entitlement to access such a document under CPR 5.4C(1) irrespective of the reasons which lay behind that application (unless they were improper) and subject to any order to restrict access under CPR 5.4C(4).
Although it was true that the Notice to Admit and the consequential Admissions sought to define and confine the issues (and so had precisely the same objective and purpose as a pleading), Vos J held they were not Statements of Case within the express and exhaustive classes of documents articulated by CPR 2.3(1). Therefore CPR 5.4C(2) applied and there was no automatic entitlement to obtain copies of these documents. While a court would lean in favour of allowing access to documents read out in court, or read by the judge as part of the decision making process, it would exercise its discretion after considering all the circumstances, including the reasons for which the documents are sought, the extent to which they are truly necessary to understand and report upon the proceedings and the competing rights of other parties.
The most important factor in deciding whether to allow access to both classes of documents in this case was the potential prejudice to any future criminal proceedings brought against Mr Mulcaire. Accordingly the court had to consider many of the same factors that would fall to be considered under an application to impose reporting restrictions pursuant to s4(2) Contempt of Court Act 1981.
Vos J held there not a substantial risk of prejudice for the following reasons:
(a) There was already a substantial amount of material in the public domain about Mr Mulcaire’s activities and he had become notorious as the main person alleged to have undertaken voicemail interception. It was true that he might be charged imminently with a conspiracy to undertake unlawful phone interception, and that the passages in the 3 documents might give the public more details of the allegations (including as to his alleged modus operandi). However, the relevant passages fell far short of providing a detailed blueprint for phone hacking and the public could not be expected to appreciate the technical legal significance of allegations pertaining to an alleged conspiracy to use illegal methods. A jury at any future trial would also be expected to exclude material in the public domain from their considerations.
(b) Even if the Guardian published all or much of the detail which Mr Mulcaire contended was prejudicial, it was unlikely that there would be a criminal trial for many months, by which time the specific allegations would have faded in the public’s awareness. In reality, all that people would likely retain is what they already knew – i.e. that Mr Mulcaire was the man at the centre of the phone hacking scandal.
(c) The Notice to Admit was just a series of allegations against the Defendants and could only properly be reported as such.
(d) The Generic Admissions were made by News Group Newspapers and not by Mr Muclaire. They had not admitted that Mr Mulcaire only engaged in unlawful activities and much of the material admitted was unlikely to connect directly with any specific charges brought.
(e) Although the level of detail about the specific methods Mr Mulcaire allegedly employed in phone hacking might prejudice the future administration of justice, these specific paragraphs could be redacted.
(f) Although there was some force in the argument that the court should err on the side of caution on the basis that the application could best be assessed when the details of any charges laid against Mr Mulcaire were known, the Guardian had a right to have its application determined on the present facts.
Vos J doubted whether the Guardian required the documents to understand and report previous proceedings in the litigation. That fact did not, however, mean that the Guardian’s application was doomed to fail, any more than it made its motivation an improper one. The litigation had been conducted in a glare of publicity ever since it began and had justifiably attracted widespread public interest and attention. It had wider consequences beyond the narrow ramifications of the damages claims themselves. The principles of open justice were therefore particularly acute in this case:
‘There is a distinct and crucial public interest in scrutinising the decision-making process in this case, and in knowing the facts on which the decisions are being made. This remains as true now as it was before the last of the first wave of cases settled. The fact that the trial of the generic issues did not start this morning, as had been planned, makes little or no difference in my judgment. The 3 documents will still occupy a central place in the cases that are still to be tried. All that has happened is that the trial has been delayed somewhat. There remains a real and vital public interest in the dissemination of accurate information about the course these proceedings are taking, the settlements that have been entered into, and both the allegations that are made by the Claimants against the Defendants, and the admissions made by the Defendants.’
David Glen acted on behalf of Guardian News and Media Limited.