The Data Brief

A monthly data protection bulletin from the barristers at 5 Essex Chambers

Nicklin J refuses Mail newspapers summary judgment / strike out of ‘phone hacking’ privacy claims on the basis of limitation

28 November 2023

Claims for Misuse of Private Information

In October 2022, seven Claimants who are all notable public figures issued claims for misuse of private information against Associated Newspapers which publishes The Daily Mail, The Mail on Sunday and MailOnline. They alleged that the Defendant obtained their confidential information using techniques such as interception of voicemail messages, listening into live telephone calls, obtaining information by deception, and the use of private investigators, and that it used this information to publish articles. Each Claimant seeks damages and an injunction.

Application for Strike Out / Summary Judgment

Prior to filing a Defence or even an Acknowledgement of Service, the Defendant applied for strike out and/or summary judgment on the grounds that (1) the acts complained of were barred by limitation since they occurred more than 6 years before the issue of proceedings and (1) the Claimants had breached a Restriction Order imposed by the Leveson Inquiry by using ledgers recording payments to private investigators or other external providers of information (“the Ledgers”).

Decision on Limitation

Nicklin J held that each Claimant had a real prospect of overcoming a limitation defence through s32 Limitation Act 1980, that is, of demonstrating concealment by the Defendant that was not and could not with reasonable diligence have been discovered before October 2016. While the Judge considered that the Claimants could have assembled some of the facts on which they now rely before October 2016 – for example, Associated’s extensive use of private investigators as revealed by reports published in 2006 – he determined that this overlooks the reality of what confronted them and applies a large dose of hindsight or reverse engineering. Only once the evidence of private investigators became available much later did it permit a reappraisal by the Claimants and their advisors of the value of earlier pieces of evidence which, if analysed in isolation, would have been of limited (or no) probative value. The Claimants had a real prospect of demonstrating that prior to learning of the evidence provided by the private investigators, each of them did not have a viable or worthwhile claim.

Even if there were sufficient evidence to embark on the exercise (which the Judge held there was not) it would not be appropriate on a summary judgment application to make findings of fact on disputed evidence as to whether (and if so at what point) each Claimant did suspect (or should have suspected) that Unlawful Information Gathering was practised at Associated and that each Claimant had a reasonable belief (not simply a suspicion) that s/he had been the victim of a particular wrong. In anything but a plain and obvious case, where a knockout blow can be delivered, resolution of factual issues necessary to resolve whether a defendant can defeat a claim on the grounds of limitation will require the court to ascertain the relevant facts. This was to be done at trial, not on a summary judgment application.

The Claimants did however accept at the hearing that they could not maintain a free-standing cause of action for misuse of private information based on publication of the articles which revealed the private information: any such claim is time barred and was not concealed from any of the Claimants. The Claims for misuse of private information based on the obtaining of the information were materially different.

Decision on Restriction Orders

On 13 July 2011, responding to public concern about phone hacking, the Leveson Inquiry was set up under the Inquiries Act 2005. Core Participants (CPs) to the Inquiry (including one of the Claimants to the present action) gave confidentiality undertakings regarding material disclosed by the Inquiry. Restriction Orders (ROs) pursuant to s19 of the Inquiries Act 2005 were made including a Final Restriction Order preventing the disclosure or publication of, amongst other things, material withheld by the Inquiry.

In the second limb of its application for strike out and/or summary judgement, the Defendant contended that parts of the Particulars of Claim were based on information contained in the Ledgers, which were covered by the CP undertakings and/or the ROs and should be struck out. The Claimants responded that the Ledgers were not covered by any effective RO or alternatively that they had come into the public domain as a result of publication of them by an online publisher.

Nicklin J found that the Ledgers never came into the public domain: they remained part of the repository of documents the Inquiry held but had not published and so were covered for the duration of the Inquiry by the CP undertaking. Thereafter, a final RO restricted from disclosure or publication material withheld from the public which included the Ledgers. There was a powerful analogy with the restrictions on collateral use of documents disclosed in legal proceedings because the underlying policy considerations protecting ROs made under the Inquiries Act 2005 were similar. Publication online of information from the Ledgers did not make a difference. The Court would not permit the use in litigation of documents provided or obtained in breach of a RO without the relevant RO being varied or revoked pursuant to s20 of the Inquiries Act 2005, in order to uphold and promote the Rule of Law. The Claimants were given the opportunity to seek variation of the relevant RO.

This decision – running to some 335 paragraphs – demonstrates the complexities of limitation in privacy claims. It is also a staunch defence of the power of Restriction Orders in the name of protecting the Rule of Law.

Further reading: Baroness Lawrence & Ors v Associated Newspapers [2023] EWHC 2789

The Data Brief

A monthly data protection bulletin from the barristers at 5 Essex Chambers

The Data Brief is edited by Francesca Whitelaw KC, Aaron Moss and John Goss, barristers at 5 Essex Chambers, with contributions from the whole information law, data protection and AI Team.

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