Various Claimants v News Group Newspapers Ltd & Ors

Factual and Procedural Background

This application concerns an order requiring the Metropolitan Police Service ("MPS") to disclose information related to phone hacking activities allegedly conducted by journalists employed by the first defendant newspaper ("NGN"). Numerous individuals who believe they have been victims of such hacking have brought or may bring claims, leading to managed litigation to ensure efficient handling.

The covert nature of the hacking meant victims often lacked knowledge of the extent or existence of the wrongdoing, with primary evidence residing in the hands of the MPS following police investigations. The MPS has, over time and following a prior settlement in a related case brought by a former Labour minister ("Lord Prescott"), informed apparent victims of their status to some extent but has withheld full documentary evidence.

An earlier disclosure regime was established pursuant to an order, with consent from claimants and NGN and no opposition from the MPS, to facilitate provision of information from the MPS to claimants without repetitive applications. This regime related to "Operation Weeting" material and operated effectively, resulting in a high rate of settlements.

A new investigative phase ("Operation Pinetree") has arisen, involving different journalists and evidence, necessitating a new disclosure order with terms agreed by the MPS but opposed by NGN, who challenge the court's jurisdiction and the appropriateness of the order.

Legal Issues Presented

1. Whether the court has jurisdiction to make an order compelling the MPS to disclose information to potential claimants not yet parties to litigation, particularly under the Norwich Pharmacal jurisdiction.
2. Whether the MPS is sufficiently "mixed up" or involved in the wrongdoing to be subject to Norwich Pharmacal relief.
3. The proper scope and application of case management powers under CPR 3.1(2)(m) and CPR 31.17 concerning third party disclosure.
4. The exercise of judicial discretion regarding the proportionality and necessity of the disclosure order sought.

Arguments of the Parties

Appellants' (Claimants') Arguments

• Part 1 disclosure is justified under Norwich Pharmacal principles and CPR 31.17 (third party disclosure) for existing claimants.
• Part 2 disclosure, relating to individuals not yet parties, is sought under Norwich Pharmacal jurisdiction and case management powers, informed by inherent jurisdiction.
• Case management powers should allow the court to dispense with originating processes and streamline disclosure to multiple claimants.
• The MPS is sufficiently involved in the wrongdoing, not as a wrongdoer but as a party possessing essential information, thus not a mere witness.
• The disclosure is necessary for claimants to assess and pursue their claims effectively, given their lack of knowledge of the wrongdoing and evidence.

Appellee's (NGN's) Arguments

• NGN disputes the court's jurisdiction to make the order, asserting no power exists to compel disclosure from the MPS in these circumstances.
• CPR 31.17 does not apply to non-parties and formal evidential requirements are unmet.
• Norwich Pharmacal relief is inappropriate because the MPS was not involved in or facilitated the wrongdoing; it is merely a witness holding information.
• Case management powers cannot create a new jurisdiction for third party disclosure beyond existing limits.
• The disclosure is unnecessary as victims can plead claims and obtain evidence through conventional means, including subpoenas at trial and disclosure from NGN.
• Disclosure at this stage is costly and inefficient; it would be better for victims to proceed with litigation and receive disclosure as needed.
• Concerns about confidentiality, costs of disclosure, and potential floodgates issues were raised.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Norwich Pharmacal Co Ltd v Customs and Excise Commissioners [1974] AC 133	Established the Norwich Pharmacal jurisdiction allowing disclosure orders against third parties involved in wrongdoing to facilitate identification of wrongdoers.	Used as the foundational authority to assess the scope of disclosure against the MPS, focusing on whether the MPS is more than a mere witness.
Ashworth Hospital Authority v MGN Ltd [2002] 1 WLR 2033	Clarified that involvement or participation in wrongdoing, even if innocent, suffices for Norwich Pharmacal relief; emphasized the threshold nature of involvement.	Interpreted to support some flexibility in the degree of involvement required, including "involvement" as a lesser degree than facilitation or participation.
Ricci v Chow [1987] 1 WLR 1658	Confirmed that Norwich Pharmacal jurisdiction does not extend to mere witnesses who have not facilitated wrongdoing.	Reinforced the principle that mere possession of information without facilitation or involvement is insufficient for relief.
R (Mohamed) v Secretary of State for Foreign & Commonwealth Affairs (No 1) [2009] 1 WLR 2579	Confirmed that involvement by facilitation, even if innocent, suffices for Norwich Pharmacal relief; emphasized the need to distinguish mere witnesses.	Supported the proposition that facilitation is the appropriate test but allowed for flexibility in assessing involvement.
Rugby Football Union v Consolidated Information Services Ltd [2012] 1 WLR 3333	Emphasized flexibility and discretion in granting Norwich Pharmacal relief; highlighted that any form of redress suffices to justify disclosure.	Reinforced the court's discretion and the need to weigh all relevant factors in deciding whether to grant relief.
Axa Equity & Law Life Assurance Society v National Westminster Bank plc [1998] CLC 1177	Discussed the meaning of being "mixed up" in wrongdoing as a threshold for Norwich Pharmacal relief.	Clarified that involvement sufficient to distinguish from a mere bystander is necessary but does not require liability.
Mitsui & Co Ltd v Nexen Petroleum UK Ltd [2005] EWHC 625 (Ch)	Applied Norwich Pharmacal principles to disclosure of information necessary to determine whether to sue for breach of contract.	Referenced for the requirement of facilitation or involvement in wrongdoing to justify disclosure.
Nolan v Walsh [2011] EWHC 535 (Comm)	Considered residual inherent jurisdiction for third party disclosure.	The court expressed skepticism about any residual jurisdiction outside Norwich Pharmacal principles.
R (on the application of Omar) v Secretary of State for Foreign & Commonwealth Affairs [2013] 3 All ER 95	Discussed flexibility in Norwich Pharmacal principles and involvement short of facilitation.	Supported the view that facilitation is not always required, but some involvement is necessary to move beyond mere witness status.

Court's Reasoning and Analysis

The court began by examining whether the MPS could be subject to a Norwich Pharmacal order. The traditional test requires that the respondent be "mixed up" in the wrongdoing, typically by participation or facilitation, to distinguish them from a mere witness. The MPS was not involved in or facilitated the phone hacking; it acted in its public duty to investigate and hold information.

However, the court recognized that the MPS's role in investigating, holding material, informing victims of their status, and agreeing not to oppose disclosure orders indicates a degree of involvement beyond that of a mere witness. This combination of factors justified treating the MPS as more than a bystander and susceptible to Norwich Pharmacal relief.

The court rejected the argument that case management powers under CPR 3.1(2)(m) or CPR 31.17 create new jurisdiction for third party disclosure beyond existing limits, emphasizing that such powers cannot override jurisdictional constraints.

The court acknowledged the need for flexibility in the Norwich Pharmacal jurisdiction, citing recent authorities emphasizing discretion and the evolving scope of involvement sufficient to justify disclosure.

Regarding discretion, the court found the disclosure proportionate and necessary given claimants' inability to plead or assess claims without the information. The MPS’s non-opposition further supported the exercise of discretion in favor of disclosure. The court dismissed NGN's floodgates and cost concerns, noting the court’s ability to control the scope and that the MPS did not raise such objections.

The court also considered the procedural mechanism, concluding that originating processes could be dispensed with given the existing proceedings and the MPS's consent to the order’s terms. This approach promotes efficient case management by avoiding repetitive individual applications.

Finally, the court noted the unresolved issue of costs for the MPS in complying with disclosure requests, requiring further provision to address payment.

Holding and Implications

The court's final decision is to GRANT THE ORDER sought, subject to agreement on the costs arrangement for the MPS’s disclosure efforts.

The order permits disclosure of specified categories of information held by the MPS to claimants and potential claimants under a managed regime, facilitating earlier and more informed litigation or settlement of phone hacking claims.

No new jurisdictional precedent was established; rather, the court applied and elaborated existing Norwich Pharmacal principles, emphasizing flexibility in the concept of involvement sufficient to justify disclosure. The decision directly affects the parties by enabling streamlined disclosure but does not broadly alter the legal landscape beyond this context.