The High Court dismissed the privacy and phone-hacking claims in Baroness Lawrence & Ors v Associated Newspapers, concluding that the claimants had failed to establish that the articles and instances relied upon were the result of unlawful information gathering (‘UIG’).
The Facts
The claimants, including Baroness Lawrence of Clarendon OBE, Elizabeth Hurley, Sir Elton John CH CBE, David Furnish, Sir Simon Hughes, Prince Harry, the Duke of Sussex, and Sadie Frost Law, brought claims for misuse of private information and/or breach of confidence arising from alleged UIG practices.
The alleged methods of information gathering included the use of private investigators, “blagging” (the acquisition of information through deception), phone hacking and corrupt payments. Associated Newspapers denied these allegations and, in addition, contended that the claims were brought outside the applicable limitation period.
The Issues
A significant issue at trial concerned an application by the claimants under CPR 31.17 for third-party disclosure from the Commissioner of Police of the Metropolis. The documents sought had been generated during a Metropolitan Police operation in 2007 and were said to record information provided by a journalist to the police regarding the source of information used in a Daily Mail article.
Whilst the Metropolitan Police Service did not oppose the application, Associated Newspapers did. The judge refused the application, concluding that the documents did not satisfy either the relevance threshold or the necessity threshold under CPR 31.17. The material principally concerned the journalist’s credibility or “credit”, rather than providing evidence capable of establishing the underlying allegations.
Held
The decision confirms that a claimant seeking third-party disclosure must establish that the documents sought are likely to support their case or adversely affect another party’s case, and that disclosure is necessary for the fair disposal of the proceedings or to save costs. Even where these requirements are satisfied, the court retains a discretion as to whether disclosure should be ordered, and an applicant must demonstrate that disclosure from a third party represents an appropriate exercise of that discretion.
The judgment also demonstrates the limitations of propensity evidence. The claimants failed to produce sufficient evidence indicating that specific individuals engaged in UIG. Whilst the court recognised that the age and nature of the allegations meant that aspects of the claimants’ case would necessarily involve inference, it held that suspicion alone was insufficient to establish UIG.
The court concluded that the claimants had failed to establish their pleaded allegations. It rejected the attempt to establish liability through broad inference where a legitimate and realistic lawful source pathway remained available, or where the article-specific evidence did not demonstrate that the relevant information must have been obtained unlawfully.
The court further emphasised the importance of parties being bound by their pleaded cases. The claimants could not, at trial, replace a pleaded allegation with a different and, in some instances, more serious allegation of UIG. Consequently, the claims failed on their merits.
Associated Newspapers also advanced a limitation defence. The claims were subject to a limitation period, and the claimants relied on the exception relating to deliberate concealment. Associated Newspapers argued that time should run from the point at which the relevant facts were discovered, or could have been discovered through reasonable diligence.
As the court dismissed the claims on their merits, it was unnecessary to determine the limitation defence in relation to most of the claims. However, the court held that the specific claims brought by Sir Simon Hughes and Sadie Frost Law concerning the Miskiw/Anderson emails were time-barred in any event. The court also rejected allegations that three senior Associated Newspapers executives had lied to the Leveson Inquiry.
Comment
The judgment underlines the evidential burden facing claimants in historic UIG litigation: generalised evidence of industry practice or propensity will not suffice, and each pleaded article or instance must be supported by evidence capable of excluding a realistic lawful source. It also serves as a reminder of the strict approach taken to third-party disclosure under CPR 31.17 and to the limitation period for privacy claims.
How can we help?
Taylor Hampton has acted in some of the leading phone hacking and privacy cases in England and Wales, including Gulati v MGN. If you believe your private information has been unlawfully obtained or misused, please contact us on 0207 427 5970 or at enquiries@taylorhampton.co.uk.
Disclaimer: This article provides general guidance only and does not constitute legal advice. Legislation, civil procedure rules, and case law can change. Always seek professional legal advice tailored to your specific situation before acting.