A number of cases involving high-profile individuals relating to telephone hacking and other invasions of privacy have been ongoing for some time. These individuals, which include Prince Harry, Sir Elton John, Baroness Lawrence of Clarendon OBE, and Elizabeth Hurley amongst others, are currently pursuing litigation against Associated Newspapers Ltd, which is the publisher of the Daily Mail, The Mail on Sunday and MailOnline.
The claims are summarised in the Press Summary of the judgment of the outcome of a recent hearing as follows:
“The Claimants allege that Associated has, in the past, obtained their private and/or confidential information using techniques such as interception of voicemail messages, listening into live telephone calls, obtaining of information by deception, and the use of private investigators (“Unlawful Information Gathering”). Once obtained, the Claimants allege that Associated has used this information to publish articles in its newspapers and online. Further details of the Claimants claims are set out in [5]-[7]. The Claimants seek remedies for misuse of private information, including damages and an injunction. Associated denies the allegations. At this early stage, the Court is not adjudicating on the truth of any of the allegations that have been made by the Claimants ([17]).”
Associated issued an application for strike out and summary judgment in respect of the entirety of the Claimants’ claims on two grounds:
- That the Claimants have brought their claims too late and accordingly are out of time to proceed in accordance with the Limitation Act 1980 (1980 Act), which only provides a six-year period to pursue a claim such as this (Limitation Application); and
- That the Claimants relied upon documents from the Leveson Enquiry that were subject to an order restricting the use of those documents for a collateral purpose (Restriction Order Application).
The Judge handed down judgment in respect of the above-referred applications on 10 November 2023. Mr Justice Nicklin found that the Limitation Application failed on the basis that:
- There was a real prospect that the Claimants would succeed in an argument pursuant to section 32 of the 1980 Act, which provides a delay in the limitation period starting where a Defendant has deliberately concealed facts necessary for the Claimants to properly formulate a case; and
- Accordingly, it was appropriate for the Limitation argument to be determined following the hearing of full evidence at trial.
The Judge however agreed with the Restriction Order Application and set out the following options for the Claimants to consider:
- The Claimants could consider seeking a variation to the Final Restriction Order made in the Leveson Enquiry;
- The Claimants could discontinue the offending parts of their Particulars of Claim; or
- Associated could give voluntary disclosure of the offending documents at this early stage.
Comment
Given that Associated issued the application seeking strike out, option 3 is unlikely to be appealing to it. Notwithstanding this position, given that the documents appear relevant to the issues in the case and the case is permitted to proceed to trial, it is likely that at some point in the case, Associated would be required to disclose the offending documents to the Claimants in any event. With this in mind, the third option does appear to be the most sensible option in terms of reducing costs, albeit the Judge properly determined that he could not order that at the recent hearing as there was no application before him for such a purpose.
The case will now proceed and it will no doubt become apparent fairly quickly which of the options Mr Justice Nicklin set out is pursued by the Claimants.
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