Gray v News Group Newspapers Ltd & Anor

Factual and Procedural Background

These actions arise from allegations of mobile telephone voicemail interception against the second Defendant, a private investigator engaged by a national Sunday newspaper, the first Defendant. Two similar actions have been brought by two well-known figures, the Plaintiff football commentator and the Plaintiff comedian, respectively. The Defendants are alleged to have intercepted and listened to the Plaintiffs' mobile phone voicemail messages during the period from February 2005 to August 2006.

The private investigator was arrested and pleaded guilty to offences relating to voicemail interception of various individuals, including members of the Royal Household and other high-profile personalities. The private investigator was sentenced to imprisonment in early 2007. Subsequent investigations by the police revealed documentation suggesting the Plaintiffs may have been targets, though no direct evidence of unlawful interception was initially disclosed.

The Plaintiffs issued proceedings alleging interception, conspiracy, misuse of confidential and private information, breach of equitable duty of confidence, invasion of privacy, and sought injunctions and damages. The Defendants denied the allegations, with the private investigator invoking the privilege against self-incrimination (PSI), while the Plaintiffs argued that this privilege should not apply under section 72 of the Senior Courts Act 1981.

Applications before the court concern three substantive issues: (i) whether interim declarations should be made that the private investigator is prevented from relying on the PSI under section 72; (ii) whether the Plaintiffs should be permitted to amend their Particulars of Claim to allege interception of voicemail messages containing "commercial information"; and (iii) whether the private investigator should be required to provide further information under Part 18 CPR regarding interception activities involving persons other than the Plaintiffs.

The court has considered statutory provisions, relevant case law, witness statements from the Plaintiffs describing the nature of the voicemail messages alleged to have been intercepted, and the procedural history including disclosure and applications for amendment of pleadings.

Legal Issues Presented

1. Whether the court should make interim declarations that the private investigator is prevented from relying upon the privilege against self-incrimination in respect of the claims by virtue of section 72 of the Senior Courts Act 1981.
2. Whether the Plaintiffs should be permitted to amend their Particulars of Claim to allege that the private investigator intercepted voicemail messages specifically comprising or including "commercial information".
3. Whether the private investigator should be required to provide further information under Part 18 CPR relating to alleged voicemail interception activities involving persons other than the Plaintiffs.

Arguments of the Parties

Plaintiffs' Arguments

• The term "commercial information" in the statutory definition of "intellectual property" should be understood as "protectable technical or commercial information" that can be subject to an action for breach of confidence.
• The Plaintiffs' voicemail messages contained confidential commercial information with real commercial value, including advance knowledge of football news and business negotiations relevant to their professional roles.
• The interception of such information falls within the scope of section 72, thereby abrogating the private investigator's right to invoke the privilege against self-incrimination.
• The amendments to pleadings clarifying the inclusion of commercial information are necessary and supported by evidence, and the private investigator should be required to answer Requests for Further Information (RFIs) relevant to the conspiracy allegations.

Defendants' Arguments

• The definition of "commercial information" in section 72(5) should be narrowly construed to include only commercial information that is itself a species of intellectual property, such as information with a creative element or innovative design.
• Most confidential information is not property or intellectual property, and breach of confidence is an equitable principle rather than a property right.
• There is no evidence that the Plaintiffs' voicemail messages were intercepted, or that any intercepted information was misused or threatened to be misused.
• The amendments to pleadings are unnecessary and speculative, and the RFIs seeking information about other victims or instructions are irrelevant and not reasonably necessary for the preparation of the Plaintiffs' cases.
• The private investigator objects to answering many RFIs on grounds of relevance, admissibility, and because the information sought relates to other criminal activities not connected to these proceedings.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by considering the proper construction of section 72 of the Senior Courts Act 1981, which removes the privilege against self-incrimination in certain civil proceedings relating to intellectual property infringement. The court accepted that such a derogation from a fundamental right must be strictly construed but also purposively interpreted in light of the statute's history and purpose, which was to address problems arising from copyright infringement cases.

The court analyzed the competing interpretations of "commercial information" within the statutory definition of "intellectual property." The Plaintiffs argued for a broad meaning encompassing protectable commercial information capable of being the subject of breach of confidence claims, supported by case law and multiple statutory definitions. The Defendants urged a narrow construction, limiting "commercial information" to forms of intellectual property akin to patents or copyrights.

After detailed examination of relevant authorities, including the House of Lords and Court of Appeal decisions on confidentiality and intellectual property, the court rejected the narrow ejusdem generis limitation urged by the Defendants. It held that "technical or commercial information" in section 72(5) should be read as any such information that can be protected by an action, notably breach of confidence, even if it is not traditionally regarded as intellectual property.

Turning to the facts, the court found that the Plaintiffs' witness statements and disclosed evidence sufficiently demonstrated that their voicemail messages likely contained confidential commercial information with real commercial value. The court acknowledged difficulties in identifying specific intercepted messages due to the covert nature of the alleged interceptions and incomplete disclosures by the Defendants but found the evidence and inferences strong enough to proceed.

Consequently, the court held that section 72 applied, and the private investigator could not rely on the privilege against self-incrimination in these proceedings. The court ordered the striking out of parts of the private investigator's defence relying on the privilege and permitted amendments to the pleadings to clarify claims regarding commercial information, subject to refinement of pleadings to exclude inappropriate material from witness statements.

Regarding Requests for Further Information, the court found that requests concerning instructions for interceptions, forwarding of intercepted information, methods of obtaining access credentials, and identification of other targets were relevant and necessary to the Plaintiffs' conspiracy claims. The court rejected objections based on relevance, admissibility, and fishing expeditions, ordering the private investigator to provide answers to most RFIs, except those seeking subjective comparisons of victim lists.

Holding and Implications

The court's final decision is as follows:

• Interim declarations were made that the private investigator is not excused by the privilege against self-incrimination from answering questions or complying with orders under section 72(1) of the Senior Courts Act 1981.
• The court struck out those parts of the private investigator's defence relying on the privilege and granted permission to re-serve defences with those parts deleted and any necessary consequential amendments.
• The court ordered the private investigator to provide answers to the majority of Requests for Further Information relating to his voicemail interception activities, excluding certain requests deemed fishing expeditions.
• The Plaintiffs were granted permission to amend their Particulars of Claim to expressly allege interception of voicemail messages containing protectable commercial information, subject to procedural refinements.

The implications of this decision are that the private investigator's invocation of the privilege against self-incrimination is curtailed in civil proceedings involving alleged infringement of rights in confidential commercial information. This facilitates fuller disclosure and examination of evidence in such cases, supporting the Plaintiffs' claims. The decision does not establish new precedent beyond the interpretation of section 72 in this context but clarifies its application to voicemail interception claims involving commercial information.