In the Media


PUBLISHED March 21, 2012

Pre-trial or post-judgment relief - Disclosure of documents - Orders being made in phone-hacking case limiting disclosure of court documents

Various Claimants v News Group Newspapers Ltd and another: ChD (Mr Justice Vos): 27 February 2012

The claimants, who were various persons who suspected that their phones had been 'hacked' by the first defendant newspaper and the second defendant private investigator, issued claims, or were going to issue claims, against the defendants in which allegations of breach of confidence and/or misuse of private information arising out of such interceptions of phone voice messages were made or would be made.

On 18 April 2011, the court made an order restricting the inspection of documents on the court file (see [7] of the judgment). The intention of the order was to 'hold the ring' while the parties negotiated and agreed an appropriate confidentiality regime. On 20 May 2011, a similar order was made again restricting access to the court file (see [8] of the judgment). On 19 January 2012, following criminal proceedings in which the second defendant pleaded guilty to, and was sentenced for the offence of, conspiracy to intercept communications contrary to section 1(1) of the Criminal Justice Act 1977, a pre-trial review (PTR) was held at which a number of statements in open court were read concerning individual settlements between some of the claimants and the defendants.

During the PTR there was a contested disclosure application in which it was decided that certain computers held by the first defendant should be searched and disclosed. In the course of that hearing three documents were referred to in open court, and two short passages from each of the notice to admit and the responses were cited in the judgment of the court. The passages cited referred to the first defendant's knowledge about its wrongdoing and how it was sought to be concealed by senior employees by putting out public statements they knew to be false.

Guardian News and Media Ltd, the applicant, issued an application for an order under Civil Procedure Rules 5.4C(2) and/or (6) and/or the inherent jurisdiction of the court that it be permitted to obtain copies of certain documents referred to in open court at the PTR (see [1] of the judgment). The relevant documents were a statement of case described as the 'generic statement of case', the notice to admit served by the claimants on the first defendant and the first defendant's document setting out its response to the notice to admit described as 'generic admissions'.

CPR 5.4C(1) provided to the effect that the general rule was that a person who was not a party to a case could obtain a statement of case from the court records. CPR 5.4C(2) provided that a non-party, with the court's permission would obtain from the records a copy of any document file. Statement of case was defined in CPR 2.3. The second defendant opposed the application, however, if the applicant was to see the documents, it was contended that they were to be seen only in their redacted form.

The issues that arose in the case were, inter alia: (i) whether the relevant documents were 'statements of case'; (ii) if so how should the court exercise its discretion to allow inspection of the documents; (iii) whether the documents should be redacted and if so how. Consideration was given to the notes to CPR 4.5C. The court ruled: (1) Notes at part 5.4C.3 gave a clear indication of what was meant by CPR 5.4, by stating that: 'The result is that, under rule 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' (see [55] of the judgment).

In the instant case, the generic particulars of claim were a statement of case within CPR 2.3(1), and the notes, and that, therefore, a non-party was prima facie entitled to a copy of it under CPR 5.4C(1), subject to an order being made to restrict or prevent such access under part 5.4C(4) (see [56] of the judgment). The application had to be dealt with as an application under CPR 5.4C(4)(c) to obtain unredacted copies of the notice to admit and the response under part 5.4C(2) (see [59] of the judgment).

(2) Although there was a presumption that the press should be entitled to see any statement of case in its unredacted form, it did not mean that a court did not have to properly consider a contention that press reporting of parts of the relevant statement of case might create a substantial risk that the course of justice in the criminal proceedings would be seriously impeded or prejudiced. That was an important factor to be considered under part 5.4C(4). The outcome of any application would turn on the strength of that factor. The factors to be taken into account on such an application were therefore, much the same as would have to be considered upon an application under section 4(2) of the Contempt of Court Act.

The position under CPR 5.4C(2) was not exactly the same as that under CPR 5.4C(1). That was because the burden of proof was reversed. Although a court would favour allowing disclosure of documents that had been read out in open court or documents that have been read by the judge in the course of the decision-making process, it would also take into account other factors as well, such as the jeopardising of a criminal trial (see [60]-[62], [65], [66] of the judgment).

In the instant case, applying established law, the applicant was to be provided with the unredacted copies of the relevant documents subject to certain specific paragraphs (see [87] of the judgment).

Jeremy Reed (instructed by Lee & Thompson) for the claimants; Michael Silverleaf QC, Anthony Hudson and Guy Vassall-Adams (instructed by Olswang) for the first defendant; Gavin Millar QC and Alexandra Marzec (instructed by Payne Hicks Beach) for the second defendant; Jason Beer QC for the Metropolitan Police Service; David Glen for the applicant; Andrew Edis QC for the Crown Prosecution Service.