Approved Redacted Judgment
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Neutral Citation Number: [2015] EWHC 1482 (Ch) Case No: See page 2 IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION Royal Courts of Justice Rolls Building, 7 Rolls Buildings London EC4A 1NL Date: 21/05/2015 Before : MR JUSTICE MANN - - - - - - - - - - - - - - - - - - - - - Between : Shobna Gulati & ors Claimant - and - MGN Limited Defendant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr David Sherborne and Mr Jeremy Reed (instructed by Atkins Thomson as lead solicitors) for the Claimants Mr Matthew Nicklin QC and Ms Alexandra Marzec (instructed by RPC LLP) for the Defendant Hearing dates: 2nd-6th March, 9th-13th March, 19th March , and 24th-25th March 2015 - - - - - - - - - - - - - - - - - - - - - APPROVED REDACTED JUDGMENT IMPORTANT NOTE – THE UNREDACTED JUDGMENT ON WHICH THIS IS BASED IS SUBJECT TO REPORTING RESTRICTIONS UNDER AN ORDER OF MR JUSTICE MANN DATED 21ST MAY 2015. THIS JUDGMENT IS A PUBLICLY AVAILABLE VERSION OF THAT UNREDACTED JUDGMENT PUBLICATION OF THIS FORM OF JUDGMENT DOES NOT OF ITSELF INFRINGE THOSE REPORTING RESTRICTIONS MR JUSTICE MANN Gulati and others v MGN Approved Judgment - redacted Case Nos: Alcorn – HC14E07267 Ashworth – HC14 F03184 Frost – HC14F03189 Gascoigne – HC14F03143 Gulati – HC – 2012 000102 Roche – HC14F01927 Taggart – HC14B01234 Yentob – HC14B01645 Table of Contents I – INTRODUCTORY Introduction Paragraph: 1 What phone hacking is 6 The general nature of the claims 12 The openings 17 Admissions and apologies 19 Witnesses 30 II – THE GENERAL FACTUAL BACKGROUND The general hacking background to all the claims in these 35 actions The oral evidence of practices at the Mirror group 40 Telephone data 73 Invoices from private investigators 79 MR JUSTICE MANN Gulati and others v MGN Approved Judgment - redacted PAYGM vouchers 82 III – THE APPROACH TO THE EVIDENCE AND GENERAL FINDINGS Drawing inferences where the evidence has been lost or destroyed by one party - Armory v Delamirie 85 Inferences from a failure to call witnesses 97 Findings of fact in relation to phone hacking - generally 98 Alleged shortcomings in the defendant's disclosure 99 IV – THE LAW AND THE CORRECT APPROACH TO DAMAGES The basis of a damages claim 108 One award per claimant or several? 146 Simmons v Castle - whether 10% should be added to the 160 damages Quantum in privacy claims 167 Comparison with Vento 185 Other areas relied on for guidance and conclusions 200 Aggravated damages - principles and generally 203 Mitigation of damages by the defendant 216 V – THE CLAIMS IN THIS ACTION – GENERALLY The individual claims 217 VI – THE INDIVIDUAL CLAIMS – THE DETAIL Mr Yentob 234 Lauren Alcorn 253 Robert Ashworth 293 MR JUSTICE MANN Gulati and others v MGN Approved Judgment - redacted Lucy Taggart 365 Shobna Gulati 436 Mr Shane Roche 481 Paul Gascoigne 538 Sadie Frost 600 Compensation generally 702 The "disclosure" relief 704 MR JUSTICE MANN Gulati and others v MGN Approved Judgment - redacted Mr Justice Mann : I - INTRODUCTORY Introduction 1. This is a claim based fundamentally on infringements of privacy rights. The defendant is the proprietor of three newspapers - the Daily Mirror, the Sunday Mirror and The People. The claimants are persons in the public eye such as actors, sportsmen, or people with an association with such people. In one case (Mr Yentob) he held important posts in the BBC. In all cases the infringements of privacy rights were founded in what has become known as phone hacking, though there are also claims that confidential or private information was also obtained in other ways (principally from private investigators). In all cases except Mr Yentob’s there is also a claim that infringements of privacy rights led to the publication of articles in the various newspapers just described, which articles were themselves said to be an invasion of privacy rights and which would not have been published but for the earlier invasions which provided material for them. 2. In the events which have happened these proceedings are now, in essence, an assessment of damages, since liability is in all cases conceded save that it is not conceded that a handful of articles were published as a result of phone hacking. The present 8 cases are brought before the court as part of managed litigation, in which a large number of similar claims have been brought. Other claims have been, or are to be, taken up to but not including disclosure but then stayed pending the outcome of these proceedings. Several prior cases have been settled. The professed aim of this trial is to ascertain the damages payable so that the damages can be fixed in these cases and some guidance given as to the damages payable in other cases. 3. Although this trial is described as a trial to fix quantum, there is an important sense in which liability still remains to be determined. Although the defendant has admitted that there were illicit hacking activities conducted against all the claimants in these cases, and it is admitted that most of the articles were their product, the extent of those activities is not admitted. This is not a trial in which the only hacking activities that matter are those which resulted in published articles. The claims are also based on hacking which did not result in articles (of which, on any footing, there was a substantial amount). It is necessary to reach conclusions on the level and intensity of that hacking in order to determine that aspect of the claims. The defendant’s concessions on liability do not enable one to make that assessment. 4. As well as a difference between the parties as to the level of hacking that went on, what underlies the difference between the parties on quantum is a fundamental disagreement as to what it is that compensation can and should be paid for. The defendant says that what the claimants are entitled to is damages for distress, and nothing more. That is said to provide a lower limit to the sums properly claimable and is also said to justify the methodology of computation adopted by the defendant, which is very different to the claimants’. It is not necessary to identify those MR JUSTICE MANN Gulati and others v MGN Approved Judgment - redacted differences at this point in the judgment but their stark effect can be seen from comparing the range of damages which the defendant’s analysis would allow with the figures claimed by the claimants before any element of aggravation is added. The defendants’ figures range from c£10,000 (Mr Yentob) to c£40,000 (Mr Gascoigne). The claimants’ lowest figure claimed for damages is Miss Alcorn, whose claim is valued at £168,000, and the highest is Miss Frost’s, which is £529,000. The claimants also claim an additional element of 100% of their respective damages by way of aggravated damages. The parties are therefore a very long way apart. 5. The claimants in this case were all represented by Mr Sherborne and Mr Reed. The defendant was represented by Mr Nicklin QC and Miss Marzec. What phone hacking is 6. Although the colloquial expression “phone hacking” has for some time been used to describe the activities which lie at the heart of this case, (and I shall continue to use it) a more accurate description would be “mobile voice-message interception”. It does not involve listening in to actual two-way phone conversations. It works in the following way. 7. A mobile telephone account comes with a voicemail box in which the account holder can receive, and listen to, voice messages left by callers when he or she does not answer the phone. The messages can be retrieved from the phone itself, or by ringing in from an outside line. The mailbox can be protected from an unauthorised person ringing and listening to voicemail messages by a PIN code. At the time of the events covered by this action some of the mobile phone companies had default PIN codes, and many users did not bother to change them (if indeed they knew that they existed). Other users changed the PIN codes but used codes that were predictable - perhaps consecutive numbers, or years of their birth or of others close to them. An unauthorised person who knew or could guess those PIN codes could use them to access another’s voicemail account. 8. There were two ways in which an unauthorised person could access another’s voicemail box. The trick is to get through to the voicemail system, and not the owner of the phone in person. If the owner answered the phone the hacker would not be in the voicemail system. So, unless one knows that the owner will not pick up (so that the call goes through to voicemail after a number of unanswered rings) one has to ring when one knows the phone line is in use so that the call goes through to voicemail. The first hacking technique produces this effect. It involves the use of two phones simultaneously. The technique was described by Mr Evans, one of the witnesses. The first phone was used to ring the telephone number of the victim. He would count to three and then use the second phone to dial the same number. Because a call was already being made the second phone was likely to go to the caller’s voicemail box. Phone 1 was immediately disconnected, usually without MR JUSTICE MANN Gulati and others v MGN Approved Judgment - redacted actually ringing the receiving phone so as to alert the owner of the phone, so the owner would often not know that an attempt had been made to ring his or her phone. At that point the unauthorised caller could concentrate on the second phone, and the voicemail box. Once the voicemail system had responded the hacker could behave like the owner, and press keys which allowed the entry of a PIN, which in turn allowed access to the messages that had been left there.