Brazier v News Group Newspapers Ltd [2015] EWHC 125 (Ch)

[2015] EWHC 125 (Ch)Case Nos: HC14A00447 & HC14A00460
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Rolls Building, 7 Rolls Buildings, Fetter Lane, London EC4A 1NLDate 27/01/2015
Before
MR JUSTICE MANN
Between
Jeff BrazierClaimantNews Group Newspapers LimitedDefendantJohn LeslieClaimantNews Group Newspapers LimitedDefendant
Mr David Sherborne (instructed by Atkins Thomson Solicitors) for Mr BrazierMr Augustus Ullstein (instructed by Taylor Hampton Solicitors) for Mr LeslieMr Antony White QC, Mr Anthony Hudson and Mr Ben Silverstone (instructed by Linklaters LLP) for DefendantHearing Hearing dates: 21 st and 22 nd October 2014
JudgmentMr Justice Mann :Introduction
[1]These are two applications brought by the defendant ("NGN") for summary judgment and/or striking out of the claims. NGN published the “News of the World” newspaper until its closure. Each of the claimants in these two cases has brought a claim against NGN claiming wrongful interception of voicemail messages left on mobile phones (for which the phrase "phone hacking" has been widely adopted). It is in fact the second such claim brought by each of them and in his second claim Mr Leslie has added other claims based on the wrongful acquisition of information by corrupt means. A settlement was reached in their first claims. NGN seeks summary judgment against each of the claimants in these actions on the grounds that the terms of the previous settlement bar the present claims so far as phone hacking is concerned, because the present claims fall within the settled claims. An alternative striking out a claim is brought on the same basis. Furthermore, in the case of Mr Leslie NGN seeks to strike out one of the corruption claims which it says is plainly statute-barred.[2]I shall take Mr Brazier's claim first. The legal points on the phone hacking element are the same in each case, although the facts are, to a degree, different in that the pleaded cases are not equivalent.[3]In these applications Mr Antony White QC led for NGN; Mr Augustus Ullstein QC appeared for Mr Leslie, and Mr David Sherborne appeared for Mr Brazier.

The Brazier case - the basic facts

[4]Mr Brazier was of interest to the tabloids because of his relationship with Ms Jade Goody. On 15th February 2012 he started an action against NGN. It complained in large measure about the activities of a Mr Mulcaire. Mr Mulcaire was an investigator who carried out phone hacking services for NGN. Mr Brazier had been made aware by the Metropolitan Police Service ("MPS") during the course of their “Operation Weeting” that they had discovered evidence that Mr Mulcaire and NGN had been carrying out phone hacking activities in relation to his phone. His allegation in the proceedings was that the defendant and Mr Mulcaire had from time to time hacked his mobile phone. As a result, the News of the World was able to publish various stories about him which it could not otherwise have published. He claimed that that, and other activities of the newspaper, were improperly intrusive. He claimed damages and injunctive relief. Much of his Particulars of Claim in that case involved an assertion that Mr Mulcaire was involved in the phone hacking and dealt with News of the World journalists to give them assistance in the hacking exercise. I shall have to consider in detail in due course how much of his pleaded case involved the activities of Mr Mulcaire as opposed to the more independent activities (independent of Mr Mulcaire, that is) of the News of the World journalists.[5]Mr Brazier, like Mr Leslie, brought his case within the managed claims which were brought against NGN in their dozens. (In some of the other claims Mr Mulcaire was sued as a second defendant, which explains his appearance in the title of some of the pleadings identified below, but nothing in these applications turns on this distinction.) The litigation was managed first by Vos J and then by me. All the claims within the relevant part of the managed litigation proceeded by way of what were called "generic" Particulars of Claim followed by "claimant-specific" Particulars of Claim. The generic Particulars were applicable to every case and they set out a considerable amount of background common to each case. In particular they alleged publication of stories about the various claimants, and pleaded a number of matters which, it was said, indicated the general scope of the phone hacking exercise that occurred in the period in question, without necessarily linking to specific activities directed at the particular claimant. They also provided a pleading framework into which the claimant's specific allegations could be fitted by means of a subsequent claimant-specific set of Particulars. I shall have to return in due course to a lot of the detail of those pleadings in both the Brazier and Leslie cases.[6]During the course of Mr Brazier’s litigation the generic Particulars of Claim were amended, as were his claimant-specific Particulars. The generic Particulars were amended (or more precisely re-amended) on 11th October 2012. Amended claimant-specific Particulars of Claim were served on 8th November 2012. There were debates about disclosure, and some claimant-specific disclosure was given, but the full disclosure process (which in practice meant disclosure by NGN, because Mr Brazier would have little disclosure to give) had not taken place by December 2012. Nor by that time had NGN served an amended Defence to Mr Brazier’s most recent amended claimant-specific Particulars of Claim.[7]In that month Mr Brazier settled his claim. A Tomlin order was drawn which recited that the parties had "agreed the terms set out in the attached Confidential Schedule A" and contained undertakings by NGN not to repeat its conduct. It was ordered by consent that the parties should have permission to read a statement in open court in an agreed form, and, in the normal way, all further proceedings in the claim were stayed except for the purpose of carrying the terms of the Schedule into effect. Costs were provided for.[8]The all-important words in the Confidential Schedule were as follows:
"The Parties have agreed terms in full and final settlement of the Claimant's claim in proceedings HC12C00607 [the number of the action commenced by Mr Brazier] (the "
Claim") as follows:" There then followed a provision requiring NGN to pay a sum of money within fourteen days and providing for the confidentiality of that sum.[9]The information that the MPS had first provided to Mr Brazier came from their investigations which they carried out under the codename Operation Weeting, focused more on Mr Mulcaire’s activities and getting into NGN through that route. Those activities are said to centre around the News desk of the News of the World. Subsequently the MPS opened a second investigation which it named Operation Pinetree. This investigation did not focus on the activities of Mr Mulcaire. It focused on the activities of various journalists. Again, it seems that the MPS discovered evidence that Mr Brazier had been further hacked, and they so informed him. Based on that, Mr Brazier joined other litigants in suing NGN, this time (as far as he was concerned) for the second time. As with his first proceedings, his pleadings consisted of a generic Particulars of Claim and a claimant-specific Particulars of Claim.[10]That second set of proceedings is the set with which I am now concerned. Being faced with a second set of proceedings, NGN took the view that on its true construction the settlement agreement reached within the first proceedings covered the complaints made in these, the second, proceedings. It took that point through the medium of the present application for summary judgment and/or striking out. At the heart of NGN's case in this application is its averment that the settlement agreement compromised the hacking claims which are the subject of this second action as well as those in the first.

The issues in the application, in outline

[11]It will help in understanding the significance of some of the detail that I have still got to set out if I indicate at this stage the general stances of the parties on the present application. More elaboration will come later.[12]The stance of NGN is that the short set of words which I have set out above compromise all phone hacking activity claims. The compromise is in relation to the “Claimant’s claim in [the] proceedings”. It is said that if one looks at the pleadings in order to compare the two claims, the first (compromised) pleadings were widely enough drawn to catch all phone hacking activities carried on by NGN and/or they were intended to do so. The second claim is more narrowly drawn, apparently focused on the activities of the Features desk (or Features department - I shall use both terms in this judgment, but they mean the same thing), but it is nonetheless within the nature and scope of the claims which were the subject of the first action when properly read. That being the case, the claims made in the second proceedings have been compromised. If Mr Brazier had waited to get disclosure before settling he would have seen there was more hacking than he had pleaded, and he deliberately chose to settle, knowing that he did not know everything.[13]The stance of Mr Brazier is that the two sets of proceedings are about distinct sets of phone hacking and the latter is not encompassed within the former. At the time of the commencement of the running of the first action the claim was essentially about the activities of the News desk of the News of the World. Mr Mulcaire was a private investigator who provided journalists on the News desk with techniques and phone numbers so that they could conduct hacking. The full scale of that activity was not known to Mr Brazier and would only come out on disclosure and a trial (if then) but that is what Mr Brazier thought the objectionable activities were. The second set of proceedings is about something different. It is about activities conducted by the Features desk of the newspaper, which was set up so that it was an internal rival to the News desk. The activities of the Features desk did not involve Mr Mulcaire. They centred around the activities of a journalist known as Dan Evans, who was recruited in January 2005 to work on the Features desk and to exploit phone hacking techniques which he brought with him from his previous employment at the Mirror group. At the time of the compromise Mr Brazier had no knowledge of the Features desk hacking (which started later than the News desk/Mulcaire-related hacking). Accordingly, it is said that the compromise extended only to the Mulcaire-related activities carried out at, or for the benefit of, the News desk and did not extend to the activities carried out at, or for the benefit of, the Features desk. It is the latter that are sued on in the second proceedings, so those proceedings are not covered by the compromise agreement.[14]It will be helpful to understand at this stage that the concept of the difference between the News desk and the Features desk is not articulated in the first proceedings. That distinction is drawn in, and as a result of, the second proceedings. The concept of separate “News desk” hacking is one that has been deployed by the claimant to distinguish and draw a line between the activities carried on there from activities carried on for and at the Features desk. As will be seen when I consider the pleadings in the two cases, the hacking described there is described more by reference to an Arrangement (with a capital A) between NGN and Mr Mulcaire, which was in fact made for the benefit of the News desk, and one of the questions that arises in this application is the extent to which the activities described in the first action are in fact so confined.

The Brazier facts - the pleadings

[15]The first Brazier claim was commenced with a claim form issued on 15th February 2012 claiming relief in general terms. Part of the relief claimed was for damages: “in relation to the surveillance and targeting of the Claimant from 2002 to 2006 and the obtaining and use of the Claimant's confidential information from the Claimant's mobile telephone provider and the accessing, listening to, recording of and use of mobile telephone messages left for and by the Claimant between 2002 and 2006." The dates are significant to the case of NGN, because they cover a period relevant to both sets of hacking, though not all of the later period.[16]Mr Brazier pleaded his case by reference to generic Particulars of Claim of which all claimants took advantage. Those generic Particulars contained two principal elements. As foreshadowed above, the first was some facts common to all cases and which contained some general background and some material facts necessary to, and common to, all claims. The second element was paragraphs which imported cross-references of matters to be pleaded in claimant-specific Particulars of Claim such as the identity of the claimant in question, any acts particular to the particular claimant, and his/her damages claim. Thus paragraph 1 provided for the identity of a particular claimant and paragraph 23 provided for the identification of any acts particularly relied on by a specific claimant. At the date of the commencement of Mr Brazier's claim the generic particulars were those which had been served on 11th January 2012. Those generic particulars were subsequently amended and re-amended. I do not need to set out all the versions. A considerable number of the paragraphs in that later document are relevant to the present application and for ease of exposition, and because its terms are equally significant to the compromise of the Leslie claim, I set out all the terms in Appendix 1 to this judgment. It is neither necessary nor appropriate to set out the confidential schedules which, among other things, provide the identity of certain individuals otherwise known only by letters.[17]Before turning to the detail of the generic Particulars of Claim it is necessary to refer to some factual admissions. The first form of the generic Particulars of Claim was preceded by a Notice to Admit Facts and an Admission of Facts, which, in part, informed the generic Particulars. The Notice invited the following:(i) Paragraph 1 requests an admission that in about October 1998 Mr Mulcaire first entered into an arrangement with the News of the World under the terms of which he agreed to obtain, on request, information about targeted individuals, by unlawful means including, in particular, by intercepting mobile phone voicemail messages. The arrangement referred to is thereafter referred to as "the Arrangement", as a defined term of art. The concept of the “Arrangement” as being one between Mr Mulcaire and NGN becomes important to the claimant’s case on this application, and it is frequently repeated in the case documents.(ii) Paragraph 4 describes the "purpose of the Arrangement between the Second Defendant and the First Defendant" as being the obtaining of information by unlawful means.(iii) There is a request for admissions as to the payment of certain sums of money to Mr Mulcaire and his associated companies.(iv) Paragraph 9 requests an admission that Mr Mulcaire and his associates obtained mobile phone numbers by improper means, and subsequent requests also refer to the activities of Mr Mulcaire.[18]Thus far the Notice links the matters referred to with Mr Mulcaire, and they do not involve others. In the jargon of the application hearing, the requests are "Mulcaire-centric". However, paragraph 16 is said by Mr White QC, who represented NGN, to widen the requests to include the activities of other journalists in seeking an admission as follows:
"16. That the Second Defendant and/or his associates also assisted News of the World journalists in the obtaining of information by unlawful means by providing them with mobile telephone numbers, direct dial numbers, PIN numbers and other information in order to enable the journalists themselves to intercept voicemail messages."
[19]Paragraph 18 refers to other journalists and seeks an admission:
"That the journalists who intercepted voicemail messages using information provided by the Second Defendant and his associates included… Journalist… E, and others identified in the Confidential Schedule."
Journalist E can now be identified as Mr Dan Evans, referred to above. The terms of this request, and the subsequent admission, is said to demonstrate that the phone hacking relied on went beyond Mr Mulcaire and extended to the activities of Mr Evans.[20]Paragraph 28 seeks an admission:
"That, in addition to the employees already identified, the employees…listed in the Confidential Schedule were aware of or involved in the Arrangement between the First Defendant and the Second Defendant."
Those journalists included Mr Evans.[21]The Admission of Facts came on 13th December 2011, and therefore pre-dated the generic Particulars of Claim. Amongst the admissions were the following:
"1(a). In or about 2001 the Second Defendant entered into an arrangement with the First Defendant in respect of the News of the World ("the Arrangement") under the terms of which the Second Defendant agreed to obtain, on request, information about specific individuals and third parties connected to them, such as their family and/or friends and/or colleagues. 4. The purpose of the Arrangement (as defined in paragraph 1(a) above) was the obtaining of information by the Second Defendant concerning individuals…"
[22]Paragraph 5 admits payment to various Mulcaire companies. Paragraphs 7 to 17 make a number of admissions as to acts performed, all of which are identified as acts of Mr Mulcaire, or acts flowing from his activities. Paragraph 18 refers to other journalists:
"[Various individuals] and Journalist… E [i.e. Mr Evans]… intercepted voicemail messages using information provided by the Second Defendant."
Again, this is relied on by NGN in the present application as demonstrating an averment of activities of Mr Evans.[23]Paragraph 28 admits that the employees listed in the confidential schedule were aware of or involved in the Arrangement (as defined); again, those journalists included Mr Evans.[24]The terms of the Re-Amended generic Particulars of Claim are set out in Appendix 1, so it is not necessary for me to repeat those paragraphs verbatim at this point. It is sufficient for the time being that I draw attention to the following paragraphs.[25]Paragraph 12 and following identify the connection between NGN and Mr Mulcaire and described the operation of "the Arrangement". As in the Admission of Facts, the Arrangement is one between NGN on the one hand and Mr Mulcaire or his entities on the other. The paragraphs, both in their original and amended forms, seem to be heavily Mulcaire-centric – see, for example, paragraphs 12, 13 and, 16. The central position of Mr Mulcaire in this pleading is also apparent from the conspiracy allegation in paragraph 18. "The Arrangement" is one which is in terms an agreement with Mr Mulcaire and his entities. Even though paragraph 20 refers to the activities of other journalists, it is pleaded that they were acting on information provided by Mr Mulcaire. Paragraph 21.5 also moves a little way away from Mr Mulcaire in that it describes the activities of other journalists so far as it describes Mr Mulcaire teaching other journalists how to hack phones. Apart from that, however, the main thrust of the relevant facts which could be pleaded at the time centres around the activities of Mr Mulcaire. However, the pleading does reserve the right to rely on other phone hacking as might become apparent on disclosure – see paragraph 21B(iii)(b) - which was relied on by Mr Sherborne, who appeared for Mr Brazier, as demonstrating a potential widening beyond the activities of Mr Mulcaire.[26]Paragraph 22.9 refers to various occasions on which specific journalists asked Mr Mulcaire to carry out hacking activities.[27]The heading above paragraph 23 is said to be of some significance. It relates the unlawful acts to "the Arrangement".[28]That is the version of the generic Particulars of Claim which was in existence at the time of the compromise agreement. The version of the claimant-specific Particulars of Claim which was current at that time was an amended version served on 8th December 2012. It is reproduced at Appendix 2 to this judgment. Its original form can be seen through the amendments.[29]It expresses itself as being "supplemental to the Re-Amended Generic Particulars of Claim". The following points should be noted for the present:(i) Paragraph 6 pleads a concern about security from 2002 to 2006. This covers both the period of Mr Mulcaire's activities and those of Mr Evans, so far as separate.(ii) Paragraph 23 has the same heading as that appearing above paragraph 23 of the generic Particulars, and paragraph 23 itself refers to Mr Mulcaire and "the Arrangement". It is Mulcaire-centric.(iii) Paragraph 24 is littered with references to Mr Mulcaire and the "Arrangement" though there is another reference to Mr Evans and his Palm Pilot. It contains what are described are the best particulars that can be given pending disclosure and the provision of further information. It is therefore not the last word on the details of the claim.(iv) Paragraph 27 complains that certain identified articles were published as a result of the misuse of confidential information. (iv) Paragraph 37 refers to damages in general terms, but anticipates a more developed case after the full nature and extent of the wrongdoing has been ascertained in accordance with paragraph 40.(v) Paragraph 40, added by amendment, seeks an enquiry as to the full extent of the wrongdoing committed by NGN, and the new paragraph 40.4 seems to rely on both information obtained by Mr Mulcaire "pursuant to the Arrangement", and information obtained by other journalists, creating the suggestion of a distinction between those two.(vi) Paragraph 4 of the prayer refers to the "Arrangement" in subparagraph (a) and to Mr Mulcaire in subparagraph (d), with a reference to a wider class of journalists in subparagraph (e).[30]NGN served a Defence to the claimant-specific Particulars on 21st September 2012. It consists largely of non-admissions and does not take the present debate any further. There was also an amended defence to the re-amended Generic Particulars of Claim, dated 2nd November 2012, but again it does not take the present debate any farther.

Brazier - disclosure and the compromise

[31]Disclosure forms an important part of the background to the compromise in this case. Disclosure in this managed litigation takes place in two stages. First, there is early disclosure, before the claim is pleaded out properly, and in which NGN did some searches against search terms provided by a claimant. Fuller standard disclosure comes later. In the present case Mr Brazier’s solicitors asked for early electronic disclosure in a letter dated 28th March 2012. They sought disclosure against various specific words, and against what was obviously thought to be Mr Brazier’s mobile phone number. However, the solicitors’ request got the number wrong by one digit. The result was that when that number was searched against NGN’s outgoing phone call records there was a nil return in respect of that particular search. Some of the phone hacking activity was likely to be reflected in those records, if one searched against the right number. The evidence on this application stated that had the search been against the right number it would have disclosed 4 telephone calls made from the main “hub” telephones of NGN. Other searches were carried out against the documents of a number of custodians, including Mr Dan Evans. They were also applied to the documents of a Mr Stenson, who was on the Features desk, not the News desk. The fruits of such searches, such as they were, were known to Mr Brazier when he settled the action. A letter from Linklaters (solicitors to NGN) dated 1st May 2012 stated that NGN understood from information provided to individuals by the MPS that there might be other records not currently available to NGN but which might exist. They were investigating that position.[32]The next relevant event was the “Without prejudice save as to costs” offer which resulted in the compromise. It was contained in a letter dated 3rd December 2012. The letter professed a concern on the part of NGN that the costs were getting disproportionate and stated NGN's view that it would rather pay compensation directly to the claimants than see further money spent on legal fees. The letter went on:
"Based upon the information currently available and using generous criteria as to liability and quantum, NGN has evaluated the maximum sum which it considers your client could hope to recover at trial. A Part 36 offer in excess of this amount will be made to your client on expiry of the… offer contained herein ("the revised Part 36 offer"). The revised Part 36 offer will be in the sum of £20,500. In an attempt, however, to avoid further significant costs being incurred unnecessarily, NGN is willing to make an alternative, and enhanced offer of settlement now but which is capable of acceptance for a short period only.… Accordingly, NGN offers to settle your client's claim by a payment in the sum of £40,000 within two weeks of acceptance of this offer. The terms on which this offer is made are set out in the enclosed Tomlin Order, signed on behalf of our client. If your client wishes to accept NGN's offer then they should do so by returning a copy of the enclosed Tomlin Order signed on behalf of your client, by 4 pm on Monday, 24 December 2012. NGN is also willing, if requested, to provide your client with a private letter of apology and/or agreed statement in open court (the terms of which are to be agreed). Acceptance of this offer will be in full and final settlement of all your client's claims against NGN."
[33]The enclosed Tomlin Order was, for material purposes, the same as the final form which is the subject of this application.[34]4 days later, on 7 December 2012, Linklaters wrote to the solicitors acting in a parallel compensation scheme. It was copied to the lead solicitors acting for the claimants in the managed litigation. It dealt with certain specific questions that the former solicitors had raised about NGN's call data. It provided information about NGN's internal exchange and various technical questions about numbers and landlines. Section 2 of the letter set out "Sources and span of call data", setting out various sources held by NGN which were made available to investigating accountants. Section 3 was headed "Call data searched for purposes of any disclosure". It explained the scope from time to time of the records searched by the accountants. It goes on:
"3.2 As PwC have only recently received the further Vodafone landline data identified in paragraph 2.3.4 above, it has not been searched for the purposes of any disclosure. PwC are in the process of conducting these supplementary searches. 3.3 We have instructed PwC to prioritise the standard disclosure searches in relation to the representative claims in the Scheme. Any further Vodafone call data for representative claims will be provided together with standard disclosure. In relation to the new Vodafone mobile data we note that in some cases we are unable to determine whether a record in the billing system relates to a voice call or another type of billable activity, such as a text message. For the sake of completeness, we intend to disclose all of the data responsive to the mobile telephone numbers put forward by the applicants, although we cannot be certain what facts can be concluded from the data."
[35]I have set out those paragraphs of that letter because they are relied on by NGN in this application as demonstrating that the claimant knew that there was going to be some further disclosure, and that that disclosure could assist in broadening his claim, yet he chose to settle without obtaining it. At this stage in the narrative I confine myself to observing that that rather overstates the effect of that letter. The main purpose of that letter was to provide some technical information about phones, landlines and material available, and its remark about standard disclosure was merely relating to the limited additional data pool which had become available. It was not indicating that a whole new raft of data had become available to search (which is of the essence of Mr White's submissions), that the accountants have searched such data and that it would be disclosed as part of standard disclosure, in the sense of alerting the claimants to something potentially important. The remark was a more general remark than that.[36]As is now known, Mr Brazier signed up to the compromise and the order of 14th December 2012. As part of the final order it was agreed that a statement in agreed form would be read in open court. That statement is said to be relevant, and the material parts of it read: “3. [Counsel for the claimant] … The Defendant employed Glenn Mulcaire, a private investigator, to carry out various investigative activities, including blagging information from mobile phone companies and other sources and the wrongful interception of voicemail messages. 4. The Claimant was targeted by the Defendant and Glenn Mulcaire from about 2002 onwards because of interest in him and his on/off relationship with Jade Goody… 6. In late 2011, the Claimant was contacted by Operation Weeting. After considerable investigations, the Claimant has found out that a number of his private details were included in Glenn Mulcaire’s notes and that Glenn Mulcaire had set up a "Project Name" on both him and Ms Goody. The Claimant has also discovered that his private details were in the address book of a journalist at the News of the World ... 7. On 15 February 2012, the Claimant issued proceedings against NGN Limited for misuse of private information and breach of confidence. On 3 July 2012, the Claimant served Claimant Specific Particulars of Claim… 9. I am here today to announce that the Defendant has accepted liability and has agreed to pay substantial damages to the Claimant plus his legal costs… 11. [Statement by counsel for NGN] The Defendant is here today through me to offer its sincere apologies to the Claimant for the damage, as well as the distress, caused to him by the blagging and publication of his confidential information.… 12. [Further statement on behalf of the claimant]. In the light of the order which has been made and this statement, the Claimant considers that he is fully vindicated."

Brazier - the second action

[37]The current proceedings were commenced on 31st January 2014. On the facts they were brought as a result of disclosures made by the MPS to Mr Brazier of material they had discovered during the course of Operation Pinetree, the operation which was investigating phone hacking at NGN going beyond the activities of Mr Mulcaire. One of their main sources of information was Mr Dan Evans, who made extensive admissions of phone hacking by journalists on the Features desk, which (it is said) were nothing to do with the activities on the News desk which led to the Mulcaire-related claims.[38]The claim form makes claims in respect of the misuse of private information by listening to private information on the mobile phone network “by the Features Department of the News of the World”. As in the previous litigation there were generic Particulars of Claim which set out matters of general application, which were to be supplemented by claimant-specific Particulars of Claim. Because these are not the “proceedings” referred to in the Tomlin Order it is not necessary to set this pleading out in such extensive detail. The relevant parts are as follows:[39]The opening paragraphs identify the defendant and assert the claimant’s right to privacy for his/her confidential information and phone messages. Paragraph 11 has a heading “The Defendant’s unlawful information gathering arrangements: General” and that paragraph itself pleads: “11. At all relevant times, the Defendant operated a series of arrangements for the unlawful gathering of private and confidential information relating to individuals with a view to the preparation and publication of stories in the News of the World and/or the Sun".[40]Paragraph 12 emphasises the nature of the wrongs and paragraph 14 pleads:
"14. These arrangements were separately entered into by the News of the World News Department ("the News Department") and the News of the World Features Department ("the Features Department") which, as a matter of editorial policy, competed with each other for stories. The best particulars that the Claimant can presently give of the arrangements which entered into [sic] by the Defendant prior to disclosure and/or the provision of Further Information are set out below."
[41]Paragraph 15 is headed "Unlawful information gathering arrangements by the News Department" and it pleads an arrangement with Mr Mulcaire (including a cross-reference to the re-amended generic Particulars of Claim in the previous action) and arrangements with others, including individual journalists. Paragraph 16 is headed "Unlawful information gathering arrangements by the Features Department" and it pleads those arrangements as including an arrangement with two particular identified companies, an arrangement with a particular investigator (anonymised) for the provision of personal information, an agreement with a Derek Webb and an arrangement thereafter pleaded for the interception of voicemail messages by or on behalf of journalists employed within the Features Department.[42]Paragraph 17 describes "The Features phone hacking arrangement". In essence it describes the employment of Mr Dan Evans from January 2005, and it pleads that he was employed for the specific purpose of bringing with him phone hacking skills acquired while he was employed in the Mirror Group. It goes on to plead that from January 2005 to about 2010 Mr Evans unlawfully intercepted voicemail messages pursuant to the Features Phone Hacking Arrangement. This included keeping a target list on his palm pilot (a small hand held device). The methodology of Mr Evans is then pleaded at some length, including the use of "double tapping" and the use of a large number of mobile phones each of which was used for only a short period of time. "Double tapping" involves ringing a victim's mobile phone on one phone so that the victim’s phone line is "busy" and while it is busy ringing the same phone with another handset, which second call then diverts to the voicemail system, in order to be able to access the system. The paragraph also refers to “the TDI arrangement”, which is an arrangement reached by the Features desk with a company of that name for the supply of personal information. Paragraphs 44 and following make serious allegations of a policy of concealment carried out by journalists and executives at NGN, including the publication of mendacious public statements.[43]Although the pleading has referred to unlawful information gathering by the News Department, the rest of the pleading goes on to make claims only in respect of the activities of the Features Department (and an associated arrangement which is not pleaded as part of the News Department arrangement).[44]Mr Brazier's claim form was issued on 31 January 2014 and claims damages "for misuse of private information and/or the obtaining of the use of the Claimant's private information by the Features Department of the News of the World”. It is therefore plainly confining itself to hacking by the Features desk and not extending it to activities of the News desk.[45]His claimant-specific Particulars of Claim carefully plead and rely on the Features desk arrangement and the TDI arrangement. It is plain that they seek to rely on the activities of the Features desk, centring on the activities of Dan Evans to whom frequent reference is made. Mr Brazier pleads that three specified articles were written as a result of the wrongful use of information. None of them are articles relied on in the first proceedings. He also relies on an alleged deliberate concealment of the activities, both in support of his claim that information was obtained and misused and in support of a claim for aggravated damages.[46]No claimant-specific Defence has been served in this action.

Brazier - this application

[47]This application was launched by NGN on 12th June 2014. It seeks the striking out of the claim form and the claimant-specific Particulars of Claim because they disclose no reasonable grounds for bringing the claim, or in the alternative summary judgment in favour of NGN because the claim has no real prospect of succeeding and there is no other compelling reason for allowing the case to be disposed of at a trial. The basis of both applications is that the claim has been compromised in the manner referred to above, so that there is no claim that can properly be brought.[48]The application is supported by a witness statement of a partner in Linklaters, Ms Christa Band. It describes the two sets of proceedings, by reference to their pleadings, and describes the compromise documents. It is averred that the claim that Mr Brazier has brought in these proceedings has been compromised and that he has been “well compensated” for the wrongs done to him by NGN.[49]In his evidence in answer, Mr Thomson (Mr Brazier’s solicitor) relies on the fact that the new claim is brought as a result of new evidence not available at the time of the compromise. That evidence emerged from disclosure made by the MPS of material which arose in the course of its Operation Pinetree. The evidence was said to be:(i) Call data showing calls from both Mr Evans’ mobile and the News of the World hub phone.(ii) An entry in Mr Evans' Palm Pilot.(iii) an email sent to Mr Evans by another journalist on 5 January 2005. It contained a "first draft" of what appeared later, and what appeared later in the email must have been some telephone numbers. The only part that has been disclosed to Mr Brazier is his own name and telephone number. This is said to be part of the initiation of Mr Evans' role at NGN, which he had just joined.(iv) Interview notes of an interview that Mr Evans gave to the police in the course of 2012. These are important notes which opened up facts about hacking which were not known.(v) The prosecution witness statements of Mr Evans disclosed to Mr Brazier. These related to evidence that he gave at a recent trial of certain individuals in connection with phone hacking. Again, that statement contained information about the extent of phone hacking at NGN which had not previously been known.(vi) Exhibits to prosecution statements, including NGN receipts for additional mobile phones used by Mr Evans in his hacking activities.[50]Mr Thomson goes on to say that the only part of that evidence that was known about during the original claim was that there was an entry in the palm pilot of Mr Evans, though at that time Mr Evans was asserting that the information had been obtained legitimately. Accordingly, Mr Brazier's new claim related solely to the activities of the Features desk from January 2005 onwards. There were two police operations, with two separate and distinct disclosure regimes, two sets of generic pleadings and two classes of claims. One had to bear in mind that in the phone hacking litigation generally, claimants were at a disadvantage because they had to piece together their cases from small amounts of evidence, while the defendant had the benefit of having a fuller picture available to it. Two sets of journalists targeting the same individuals and competing separately for stories (which Mr Thomson says is what occurred in this case) is quite different from one overall group of journalists working together and sharing information. Mr Brazier had no idea about what Mr Thomson describes as a separate conspiracy at the time he entered into his settlement. The evidence that he had obtained via Operation Weeting related to 2002 – 2004 only, and he therefore sued only on articles from that period. Mr Thompson submits that it is clear from the generic Particulars of Claim in the first action that what was being sued on was Mr Mulcaire's unlawful activity and the inferences that could be drawn from the admissions and disclosure that had been made or provided (the disclosure at that time related only to Operation Weeting matters).[51]Mr Thomson acknowledges that early disclosure was sought on the basis of the wrong telephone number. He anticipates reliance on that by NGN by saying that even if the right number had been searched against, all that would have been obtained was data from the hub phones. Mr Brazier would not have known about matching calls from Mr Evans' mobile phone which established double-tapping. Accordingly, even with only disclosure, he would still have been none the wiser about what Mr Thomson describes as "this further, an entirely separate, conspiracy." NGN did not disclose Dan Evans' call data, the email of 5 January 2005 or mobile phone receipts which would have demonstrated a further bout of hacking. He says that if NGN really considered that the Pinetree arrangement was part of the first claim then it should have disclosed information relating to it, but did not do so.[52]Mr Brazier supported his application with a short witness statement which, in essence, says that he did not know about the activities of Mr Evans, as those activities now appear, until March 2013 when he was contacted by the police. Had he known that there were different, and apparently extensive, further hacking activities directed at him at the time that he entered into the compromise of the first action, he would not in fact have entered into that compromise.[53]Ms Band met this case in a further witness statement which took issue with the claim that the 6 items of evidence were material for these purposes. In relation to each of those she said:(i) The four calls shown as having been made to Mr Brazier's phone from the hub would have been disclosed in the early disclosure in the first action had Mr Brazier provided the correct telephone number. The additional call of which Mr Brazier did not know was one from Mr Evans' mobile phone, and that would have become apparent from standard disclosure in the first action had he waited for that and not settled when he did.(ii) So far as the palm pilot entries are concerned, that was a piece of evidence which was available to Mr Brazier at the time of the settlement.(iii) The 5 January 2005 email would have been relevant to Mr Brazier's original claim. It was not disclosed to him because it was not, at the relevant time, a document within NGN's possession or control. It existed only in hard copy form which was seized by the police from somewhere other than NGN's premises.(iv) So far as the interview notes were concerned, they were not provided to anyone until September 2013.(v) The same applied to the witness statements of Mr Evans.(vi) The only part of the exhibits to the witness statements that are relevant are receipts for mobile telephones which Mr Evans said he used to intercept voicemail. They would have been potentially relevant to Mr Brazier's original claim, but would not have been disclosable on claimant-specific disclosure because they did not reflect the fact or extent of voicemail of any particular individual. Further, they would not have been disclosable on generic disclosure because admissions made by NGN as to the scope of hacking meant that disclosure of those documents was no longer necessary.[54]In the circumstances Ms Band says that the six items of evidence relied on by Mr Thomson were simply further documents which would have supported Mr Brazier's original claim. If he had not settled then he would in due course have obtained those from NGN on standard disclosure which was due to take place (by arrangement) on 23rd December 2012. Mr Brazier must have appreciated that the MPS investigations and the prosecution of former employees of NGN (which were generally known, particularly in phone hacking litigation circles) might in due course produce further evidence in relation to his claims.[55]She goes on to make some remarks about the scope of the original claim, and points out that the searches conducted in relation to early disclosure were not limited to the activities of Mr Mulcaire or NGN employees working with him. Searches were carried out across documents which included those of fifty-two custodians, which in turn included Mr Evans, the author of the January 2005 email and others from the Features desk. The existence of two differently named police investigations was an irrelevance, as was the fact that hacking may have been carried out on two unconnected desks at NGN. What Mr Brazier did was to compromise the claims that he had against NGN, and that is that.[56]Mr Evans has himself provided a short witness statement for this application. He says that he had never heard of Mr Mulcaire until the latter was arrested in 2006. The Features desk and the News desk were rival departments within NGN. His hacking activities for the Features desk were a completely separate operation.[57]Mr Thomson served a further witness statement which sought to distinguish between the two police operations and what he said were two different conspiracies. I do not need to set out any of its details.

The applicable principles

[58]The applicable principles in this application were not seriously in dispute. It was accepted that if there was a compromise which extended to the claims made in the second action then the second action could not be maintained. Although I was shown it, it is unnecessary to set out authority for that proposition. In the present case the compromise provision was contractual, and it is necessary to construe the contract - it is not a case in which the contract is embodied in a court order (the schedule to a Tomlin order does not amount to an order for these purposes), so principles of res judicata are not involved. Accordingly the question of the extent of the compromise requires one to construe the short provision in the Tomlin order which I have already set out in order to determine what claims it was that Mr Brazier was settling in accepting his money, the undertakings given, the apology and the statement in open court. The normal processes of, and principles underlying, the technique of construing contracts were capable of applying to this case, though Mr Sherborne said that the circumstances were such that it was difficult to apply them, or some of them.[59]The relevant words which fall to be construed are “the Claimant's claim in proceedings HC12C00607”. That is a more narrowly focused wording that often arises in the cases in which the court has had to consider the extent of a compromise. Mr White drew my attention to what was said by Mummery LJ in Dattani v Trio Supermarkets Ltd [1998] ICR 872, a case in which the Court of Appeal was called upon to consider whether a compromise of industrial tribunal proceedings also compromised a claim for unpaid wages. It was a case in which a settlement was recorded in a document emanating from the tribunal, but the wording did not make it clear what was being settled other than that it was “this case”. At page 884F-H Mummery LJ said:
“It is possible to compromise a claim which is not actually made in the proceedings compromised. That submission has its attractions, especially in the context of the policy of the law, invoked by Mr Stallebrass, to uphold compromises in the interests of promoting settlements and achieving finality in disputes. Parties who enter into a compromise often wish to put an end to all their disputes, not just some of them.”
[60]Mr White laid particular emphasis on the last sentence of that citation. It is, of course, accurate, but it does not help much in the present case. The present case is not really one in which an obviously separate claim is disputedly compromised. It is more one in which one has to identify what the “claim” in the compromise, and the proceedings, really was.[61]One point that featured largely in the submissions before me was the considerations that applied when a claimant was ignorant of a particular claim, a situation which Mr Sherborne said existed in the present case. One authority that became heavily relied on by Mr Sherborne, as much by way of comparison on the facts as by way of demonstrating relevant principles, was BCCI v Ali [2002] 2 WLR 735. That was a case in which a settlement of claims took place in ignorance of the existence of other claims which might be made. Mr Sherborne relied on certain parts of it with some enthusiasm.[62]The relevant facts of that case were that the claimant compromised a redundancy claim in terms which were said to amount to an acceptance of the sum proffered in full and final settlement of all claims of whatever nature that exist or might exist against the employer. In due course employees brought actions which established that an employee might have a claim based on "stigma", and it was ruled by the House of Lords that such a claim was sustainable in principle. Until then it was not known or understood that such a claim could exist. In the Ali case the claimant sought to advance such a claim in a second set of proceedings and the question arose as to whether the terms of the previous redundancy claim compromise were such as to amount to a settlement of the stigma claim as well. A majority of the House of Lords held that on its true construction there was no compromise of the stigma claim, notwithstanding the general wording of the compromise agreement.[63]That case concerned a general form of release, unlike the present case which turns on wording which is more specific in its terms (it compromises the “claim” in the first “proceedings”). Nonetheless, Mr Sherborne pointed to what their Lordships said about the circumstances in which a party would be taken to be compromising a claim of which he was ignorant. It is plain from what was said in that case that a party can compromise, and can be taken as compromising, a claim of which he is ignorant: “9. A party may, at any rate in a compromise agreement supported by valuable consideration, agree to release claims or rights of which he is unaware and of which he could not be aware, even claims which could not on the facts known to the parties have been imagined, if appropriate language is used to make plain that that is his intention. This proposition was asserted by Lord Keeper Henley in Salkeld v Vernon (1758) 1 Eden 64, in a passage quoted in paragraph 11 below. It was endorsed by the High Court of Australia in Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 …” (per Lord Bingham)[64]However, the court may be slow to find such an intention in a compromise agreement, because Lord Bingham went on:
“10. But a long and in my view salutary line of authority shows that, in the absence of clear language, the court will be very slow to infer that a party intended to surrender rights and claims of which he was unaware and could not have been aware.”
Lord Bingham went on to cite that line of authority, and summarised it at paragraph 17:
“Some of the cases, I think, contain statements more dogmatic and unqualified than would now be acceptable, and in some of them questions of construction and relief were treated almost indistinguishably. But I think these authorities justify the proposition advanced in paragraph 10 above and provide not a rule of law but a cautionary principle which should inform the approach of the court to the construction of an instrument such as this. I accept, as my noble and learned friend, Lord Hoffmann, forcefully points out, that authorities must be read in the context of their peculiar facts. But the judges I have quoted expressed themselves in terms more general than was necessary for decision of the instant case, and I share their reluctance to infer that a party intended to give up something which neither he, nor the other party, knew or could know that he had.”
[65]Lord Browne-Wilkinson agreed with that speech.[66]Lord Nicholls expressed himself a little differently. He did not adopt the “slow to infer” approach of Lords Bingham and Browne-Wilkinson. He pointed out that the case was dealing with a “general release” (paragraph 22), and said that there was no special rule applying to such an instrument:
“26. Further, there is no room today for the application of any special “rules” of interpretation in the case of general releases. There is no room for any special rules because there is now no occasion for them. A general release is a term in a contract. The meaning to be given to the words used in a contract is the meaning which ought reasonably to be ascribed to those words having due regard to the purpose of the contract and the circumstances in which the contract was made. This general principle is as much applicable to a general release as to any other contractual term. Why ever should it not be?”
His emphasis was more on what the contract and its circumstances revealed about the intention of the parties. “27…. The wording of a general release and the context in which it was given commonly make plain that the parties intended that the release should not be confined to known claims. On the contrary, part of the object was that the release should extend to any claims which might later come to light. The parties wanted to achieve finality. When, therefore, a claim whose existence was not appreciated does come to light, on the face of the general words of the release and consistently with the purpose for which the release was given the release is applicable. The mere fact that the parties were unaware of the particular claim is not a reason for excluding it from the scope of the release. The risk that further claims might later emerge was a risk the person giving the release took upon himself. It was against this very risk that the release was intended to protect the person in whose favour the release was made. For instance, a mutual general release on a settlement of final partnership accounts might well preclude an erstwhile partner from bringing a claim if it subsequently came to light that inadvertently his share of profits had been understated in the agreed accounts.”[67]His next paragraph demonstrated some caution, but emphasised that the important consideration was the true construction of the contract in its circumstances. “28. This approach, however, should not be pressed too far. It does not mean that, once the possibility of further claims has been foreseen, a newly emergent claim will always be regarded as caught by a general release, whatever the circumstances in which it arises and whatever its subject matter may be. However widely drawn the language, the circumstances in which the release was given may suggest, and frequently they do suggest, that the parties intended, or, more precisely, the parties are reasonably to be taken to have intended, that the release should apply only to claims, known or unknown, relating to a particular subject matter. The court has to consider, therefore, what was the type of claims at which the release was directed. For instance, depending on the circumstances, a mutual general release on a settlement of final partnership accounts might properly be interpreted as confined to claims arising in connection with the partnership business. It could not reasonably be taken to preclude a claim if it later came to light that encroaching tree roots from one partner's property had undermined the foundations of his neighbouring partner's house. Echoing judicial language used in the past, that would be regarded as outside the “contemplation” of the parties at the time the release was entered into, not because it was an unknown claim, but because it related to a subject matter which was not “under consideration”.”[68]He decided the point in favour of the claimant because the compromise of a claim which neither party can have known about (because it was not known to exist in law at the time) could not be taken to have been in the contemplation of the parties:
“To my mind there is something inherently unattractive in treating these parties as having intended to include within the release a claim which, as a matter of law, did not then exist and whose existence could not then have been foreseen. This employee signed an informal release when he lost his job, in return for an additional month's pay. The ambit of the release should be kept within reasonable bounds. Mr Naeem cannot reasonably be regarded as having taken upon himself the risk of a subsequent retrospective change in the law. A claim arising out of such a change cannot be regarded as having been within the contemplation of the parties.”
[69]Lord Hoffmann applied what he considered to be normal principles of construction, without any apparent starting point for or against the effect of a general release, and reached a different conclusion from the rest of their Lordships. Lord Clyde also applied normal principles of construction without any apparent pre-disposition as to how general releases should be construed, and came to the conclusion that on the facts it was unlikely that the parties intended claims not related to the termination of the employment (see paragraph 85). The absence of knowledge of the possibility of making a stigma claim was important to his reasoning. “86. But the claim which Mr Naeem [the plaintiff] now seeks to present for stigma damages is a far more remote possibility than a claim for personal injuries on the ground of negligence. The stigma claim is one which neither party could have contemplated even as a possibility as the law stood at the time when the agreement was made. At that time it would not be known whether or not the employee would have any difficulty at all in finding alternative employment. The bank's conduct had not yet achieved the notoriety which could create the stigma. But even if those facts had been even suspected as a possibility the prospect of any liability falling on the bank to a former employee is something which must have been far beyond the reasonable contemplation of the parties. Even without formulating any definition of the precise scope of the agreement, it seems to me that if the parties had intended to cut out a claim of whose existence they could have no knowledge they would have expressed that intention in words more precise than the generalities which they in fact used. In so far as Mr Naeem may also seek to present a claim in tort for fraudulent misrepresentation inducing him to start the employment in the first place or to continue in it thereafter, while the legal basis for such a claim may not be particularly novel, the idea of such a claim at the time when the parties made the agreement at the termination of the employment seems to me correspondingly remote from what the parties might reasonably be taken in the circumstances to have contemplated.”[70]Mr Sherborne submitted that the effect of all this is that very strong language must be used in order for a release to cover claims or causes of action which were not known about at the time of the compromise. I think that this over-states the matter. What all their Lordships were doing was construing the release in question in that case in the light of the circumstances. In order to ascertain what was being released they looked to all the circumstances, and the context of the release itself. While Lords Bingham and Browne-Wilkinson indicated that the courts would be slow to construe a document as releasing a claim which was not known to exist, as a general proposition, the remainder of their lordships did not adopt that formulation. They looked more to the particular circumstances of the case. This reflects the fact that at the end of the day each case will turn on the wording of the release clause and the circumstances in which it was entered into. What Lords Bingham and Browne-Wilkinson were doing was indicating a need for particular caution in ascertaining the intentions of the parties in relation to unknown claims. There is no principle that parties cannot be taken to have settled unknown claims (as acknowledged by Lord Nicholls), nor indeed any presumption.[71]In applying what was said in Ali one also has to be aware of the difference between the types of agreement in that case and this. In that case there was a general form of release, capable of applying, as a matter of language, to unknown claims which only emerged in the future. The compromise agreement in the present case is more particular in its wording. The concept of unknown claims in the sense of completely different claims is likely to be of lesser importance because it is not so easy to see how they can arise in relation to a “claim in proceedings” as that concept appears to be used in the Tomlin order in this case.

Brazier - the true construction and effect of the compromise agreement

[72]I therefore turn to apply the normal principles of construction to the relevant wording in this case, placed in its context. It will be useful to identify the relevant elements of that context.[73]Since the matters compromised are identified in terms of claims made in a specified set of proceedings the principal context is the claim made in those proceedings and the proceedings themselves. I have set out details of the claim form and the pleadings above. The notice to admit and the admissions are of significance, and it is right to say that they are largely Mulcaire-centric, but the pleadings are more significant.[74]The following significant points emerge from the claim form and generic Particulars of Claim:(a) The claim form is general in its terms. There is a time-frame for the claim (2002 to 2006), but apart from that it makes general claims in relation to phone hacking and associated activities.(b) The most recent form of the generic Particulars of Claim is highly Mulcaire-centric in its allegations. It centres around “the Arrangement”, which is one made between the newspaper and Mr Mulcaire, and even an amendment to paragraph 12 (which describes the Arrangement) refers to Mr Mulcaire doing the hacking and passing the fruits to journalists. There are frequent references to his activities and to activities carried out under the Arrangement.(c) However, the pleading is not entirely confined to the activities of Mr Mulcaire, and paragraph 13 refers to journalists continuing to intercept voicemail messages after the end of the Arrangement in 2006. Paragraph 14A, introduced by amendment, includes a reference to what is known as “double tapping”, which was a technique used by Mr Evans.(d) Paragraph 20 introduces hacking by journalists other than Mr Mulcaire. The amendment to paragraph 21.5 also steps away from him to more generalised activities carried on by journalists.(e) Paragraph 21B is particularly important. It shows that the claimant alleged that the information available was but the tip of the iceberg, and the first sub-paragraph (iii) demonstrates that the activities of all journalists were relied on. At two points in the paragraph (immediately before sub-paragraph (i) and in the first sub-paragraph (iii)) the claimant indicates that the claim will be broadened after disclosure and/or the provision of further information.[75]The following significant points emerge from the claimant-specific Particulars of Claim:(a) This document has to be read with the generic Particulars, because its function is to fill in the blanks (as it were) left for it by the generic Particulars. Accordingly, it is not surprising that it turns to a very significant extent on the Arrangement (see e.g. paragraph 23).(b) Paragraph 24 provides more particulars on the footing that they are the best that can be provided pending disclosure and/or further information, but the opening words of paragraph 24 are properly cross-referenced to the Arrangement as a matter of linguistics, and not to a general wider batch of unlawful acts. It therefore looks at first sight as though the entirety of this paragraph is Mulcaire-centric, but a closer inspection of the paragraph demonstrates that that is not quite so. Paragraph 24.2 refers to “other journalists” and paragraph 24.4 introduces a reference to Mr Evans (whose activities lie at the heart of this second claim), albeit linked back to Mr Mulcaire. Again, paragraph 24.5 potentially widens the claim beyond the Arrangement, both in its reference to “the defendant and/or Mr Mulcaire” and by its express cross-reference to paragraph 21B of the generic Particulars which (as pointed out above) pleads the iceberg effect.(c) Paragraph 37 contains a generalised claim which is said to be unquantifiable until the full nature and extent of wrongs has been ascertained in accordance with paragraph 40. Paragraph 40 requires full disclosure of all wrongdoing, and paragraph 40.4 refers to information obtained by Mr Mulcaire and the journalists. It seems to acknowledge that the claim is made in respect of some non-Mulcaire activities, and while it might be said that it is still consistent with activities under the Arrangement, its real thrust is wider than that.(d) The prayer is both Mulcaire-centric (paragraph (4)(a) and (d)), and wider than that (paragraph 4(e)).[76]A study of those documents, and the preceding notices to admit and admissions, shows what the claim is really all about, or in the words of Lord Nicholls what the “subject matter … under consideration” was. This was an action in which the claimant was in effect claiming in respect of all phone hacking. It majors on Mr Mulcaire’s activities, because that is mainly what Mr Brazier knew about, but the claim documents explicitly indicate that the claim may be wider than that and Mr Brazier was making a claim for all phone hacking carried on by the newspaper and its journalists and directed at Mr Brazier. Mr Mulcaire’s activities, with a few other tentacles which are not obviously Mulcaire-related, are expressly said to be the best details that Mr Brazier can give for the time being, but the claim is plainly not confined to those activities. If disclosure had thrown up, say, 10 specific incidents of apparent phone-hacking against Mr Brazier by various journalists associated with various parts of the newspaper, then those would have been matters which he would expect and intend to bring within his claim - that is the sort of thing he hoped to find. Furthermore, short of that, and irrespective of particular evidence the generic Particulars of Claim invite an inference of widespread phone-hacking in the light of the destruction or absence of records. Such an inference would be used at trial by Mr Brazier to invite a finding of likely further hacking.[77]All this therefore points towards the claim brought in the proceedings as being one in respect of all phone-hacking activities directed against Mr Brazier. It is not a claim merely in respect of Mr Mulcaire’s activities. Mr Mulcaire’s activities, and therefore the News desk’s activities, were the main activities which had been revealed to Mr Brazier, but his claim was not about just those activities. It was about more than that. He expected to get relief in respect of whatever level of activity the court found by the end of the trial, as a result of disclosure, witness evidence and inference. It is true that the claim form in the first action refers to a period ending in 2006, but that is merely another feature of the limitation on knowledge at that time. Mr Brazier’s claim would have included any later instances of phone hacking had they come to light at the trial, so this is no reason to limit the “claim made in [the] proceedings” in the manner suggested by Mr Sherborne.[78]That is the “claim” in the proceedings both in real terms and for the purposes of the compromise clause in the Tomlin order. One can test the matter in this way. Suppose that what had been discovered after the compromise was not a new set of activities flowing out of the Feature desk, but 2 or 3 other instances of hacking flowing variously from other parts of the newspaper, but in an unmarshalled sort of way. Would those have been within the compromise even though Mr Brazier did not know about them? The answer to that seems clearly to be Yes. If discovered by the time of a trial they would be taken within the trial, and would be the sort of thing that the “pending disclosure and/or further information” provision in the pleadings was designed to cater for.[79]Does it make any difference that what has been discovered is a whole area of activity, definable by reference to a separate set of journalists and the Features desk as opposed to the News desk? In my view it does not. The only difference is a potential matter of scale and internal organisation. What is said to have been discovered is a different set of journalists hacking away to a potentially greater extent, who happen to have been separately organised. But it is still part of the pattern of phone hacking in respect of which Mr Brazier brought his original action. It would fall within the activities of other journalists which are referred to from time to time in the pleadings, and would fall within the inquiries which paragraph 40 of the claimant-specific Particulars of Claim sought. They are part of the claim made by the proceedings. True it is that the resulting articles might not have been pleaded in the first claim at the time of the compromise (the articles in the second claim are different), but any articles which result from this other hacking would be brought within the first proceedings in conjunction with the hacking activities themselves.[80]Mr Sherborne sought to make much of the difference between the News desk and its activities, and the Features desk and its activities. He submitted that they should be treated as separate conspiracies (though he did not go so far as to say that that is what the cause of action was). He also sought to pray in aid the fact that the MPS seem to have treated the two sets of activities differently, because Operation Weeting (investigating Mr Mulcaire and his activities) was discrete from Operation Pinetree (the Features desk investigation). In my view those may be distinctions which have some significance in some realities, but they do not change what the first action (the claim in those proceedings) was all about. It was about the News of the World hacking Mr Brazier’s phone. At the time he could give only some particulars, and they were mainly (but not exclusively) centred around the activities of the News desk, but that was not because he was confining his claim to the News desk’s activities - it is because those were the only particulars he could give at the time.[81]Mr Sherborne also sought to rely on the fact that each of the phone hacking incidents that took place within the Features desk’s activities was a separate cause of action. His submission was that those claims were not “determined or even considered in the original action”. Therefore they should not treated as being compromised.[82]His submission is correct insofar as it identifies each incident as a separate cause of action, and it is equally correct that they were not determined in the first action (because there was no determination at all). Nor were they “considered” by a court. But those are not relevant verbs for these purposes. They were in my view capable of forming part of the subject-matter of the first action insofar as they were part of the global activities which the first action sought to address. They were not particularised, because Mr Brazier did not know about them, but they fall within the wider claims which Mr Brazier sought to make based on disclosure, further information and an inquiry as to what precisely went on. He might not have established such a claim had he had a trial before Mr Evans’ revelations, but that is not the point. That might have been relevant to an estoppel defence after a judgment, but it does not mean that they were incapable of being “claims” in the proceedings, for the purposes of the compromise.[83]In those circumstances the all-important context of the formal documents embodying the claim point to the “claim in the proceedings” as being all phone-hacking activity directed at Mr Brazier. In reaching this conclusion I have borne in mind the statement in open court. This is a Mulcaire-centric document, but that is of much less significance than the terms of the pleadings.[84]However, it now becomes necessary to consider whether, despite that, Mr Brazier’s ignorance about the Features desk activities means that the words of the compromise should be construed in such a way as to exclude them from the compromise. It is here that (logically) Mr Sherborne’s reliance on that ignorance, and his submissions on Ali, come in.[85]It is logically necessary to distinguish between two different levels at which that ignorance may operate. The first is whether it (or indeed the actual existence of two apparently separate but parallel operations) operates to limit the extent of what the first proceedings were really all about. I have already in effect dealt with this. The first proceedings were about all phone-hacking activities, whether actually identified in the first proceedings or not. The second level (and the more significant one for these purposes) is whether the existence of the parallel activities (which are assumed to exist for the purposes of these summary judgment and striking out applications), and Mr Brazier’s ignorance of them (which is again assumed to exist) means that the parties, and in particular Mr Brazier, should be taken to be not compromising that claim in the Tomlin order – whether it points to the intention of the parties is not compromising these “unknown” claims, as in Ali.[86]One difference between Ali and the present case is that (on the assumed facts) at least one of the parties in this case knew that there was, or might be, what Mr Sherborne would describe as the further claims based on the Features desk activities. In Ali neither side knew of the further claim. Mr Sherborne says that this makes the present case an even stronger one than Ali so far as limiting the extent of the compromise is concerned, particularly because of the (alleged) fact that Mr Brazier’s ignorance was because the News of the World deliberately covered up the wrongdoing. He asks rhetorically how Mr Brazier could compromise a cause of action of which he did not know. At the time of the compromise Mr Brazier had no idea about what Mr Sherborne called the Pinetree conspiracy. In those circumstances the caution referred to in paragraph 10 of Lord Bingham’s speech in Ali means that the parties should not be taken as compromising this further substantial limb of the claim.[87]In my view Mr Sherborne’s analysis fails to reflect the reality of what was happening at the time of the compromise. While Mr Brazier did not know of the parallel operation being conducted at the Features desk, it is not true to say that he was totally ignorant of the existence of further claims going beyond Mr Mulcaire’s activities. He positively averred that there were additional activities, and according to the generic Particulars of Claim he was going to invite the court to infer that they were substantial. It would not matter to his case where those claims were conducted. So he believed he had further claims. What he did not know was their scope. He hoped that that would become more apparent as the action progressed, and his pleading anticipated an extension of the claims as those circumstances unfolded. He did not know the detail of the wider activities, but there is no doubt he believed they were there somewhere. He knew (and pleaded) that there was more than currently met the eye, and based his claim accordingly. While he did not know that the wider activities were, or included, the Pinetree conspiracy, that is merely ignorance of the mechanism and the detail.[88]Accordingly, when Mr Brazier settled his case he settled a case in which he did not know the full extent of his claim, but unlike the claimant in Ali he was aware of his ignorance. In other words, he knew in general terms what it was that he did not know in detail. It was a “known unknown”. What is more, he knew that a stage was coming shortly when he might become better informed, because disclosure was to take place within the foreseeable future (it is true but irrelevant that the newspaper was seeking to put it off for some weeks as a result of the late service of amended Particulars of Claim) and the newspaper’s solicitors had, to a degree, flagged up the fact that some additional data would be available. When he received the offer from the defendant newspaper he had a choice. He could have declined it and pressed on and become better informed about his claim. Alternatively, he could take a view on what he knew, and what he thought was likely to happen, and decide whether the offer adequately reflected that assessment and the risks involved in the litigation exercise. He decided to do the latter. His known ignorance must be taken to have been factored into the calculation.[89]In his skeleton argument Mr Sherborne relied on the pleaded acts of concealment on the part of the defendant, and submitted that they affected the view that should be taken of the compromise. It is obviously a relevant factor, but in the present case it does not require a different construction to be given to the words of the compromise, or a different intention to be inferred as between the parties, because, even assuming the concealment to have existed, Mr Brazier knew, and pleaded, that there had been concealment. Of course, he did not know the extent of the concealment, but he knew there had been some, and therefore must be taken to have been compromising claims which might otherwise have been based on the concealed material.[90]The case is therefore not one in which the releasor was completely ignorant of a further cause of action, as in Ali. He was aware of further causes of action, and did not know how many, but, crucially, was aware that he did not know how many. A decision to settle in those circumstances, taking some sort of view on the probabilities and deciding whether it is worth going on in the action, is entirely rational and nothing like the situation in Ali and the cases referred to there where there is an unappreciated ignorance of another cause of action. The latter situation might drive the court to the view that the parties cannot have intended to settle that of which they were ignorant, but there is no justification for forming that view in the former.[91]Accordingly Mr Brazier’s ignorance of the Pinetree conspiracy does not affect the construction of the words of the settlement so as to lead to the view that the Features desk conspiracy was not intended to be settled. The words are appropriate to settle it and the context does not upset what the words would seem to provide. Subject to the next point, I would find that the compromise agreement embodied in the Tomlin order prevents bringing the second action based on further evidence of phone hacking.

Brazier - the effect of the defendant’s knowledge of and suppression of information

[92]This is a point which was only articulated as such in oral submissions made at the hearing, and then only late in Mr Sherborne’s submissions and apparently only as a result of my request that submissions be made on Ali.[93]I have already dealt with Ali in relation to the construction point. However, a further point was referred to in Ali which Mr Sherborne sought to invoke at the hearing. In Ali their Lordships referred to a situation in which a party compromises matters in general terms in ignorance of another claim which has, unknown to him, been concealed from him. Various expressions were used in Ali to deal with that situation. Thus Lord Nicholls said, under the heading “Sharp practice”:
“32. Thus far I have been considering the case where both parties were unaware of a claim which subsequently came to light. Materially different is the case where the party to whom the release was given knew that the other party had or might have a claim and knew also that the other party was ignorant of this. In some circumstances seeking and taking a general release in such a case, without disclosing the existence of the claim or possible claim, could be unacceptable sharp practice. When this is so, the law would be defective if it did not provide a remedy.”
He went on to point out that that was not the case before him, and that the route of the remedy would have to be debated and decided on a different occasion.[94]Lord Hoffman acknowledged a similar basis of challenge:
“70. In principle, therefore, I agree with what I consider Sir Richard Scott V-C [2000] ICR 1410, 1421 to have meant in the passage in paragraph 30 of his judgment which I have quoted (ante, paragraph 11), and with Chadwick LJ, that a person cannot be allowed to rely upon a release in general terms if he knew that the other party had a claim and knew that the other party was not aware that he had a claim. I do not propose any wider principle: there is obviously room in the dealings of the market for legitimately taking advantage of the known ignorance of the other party. But, both on principle and authority, I think that a release of rights is a situation in which the court should not allow a party to do so. On the other hand, if the context shows that the parties intended a general release for good consideration of rights unknown to both of them, I can see nothing unfair in such a transaction. 71 It follows that in my opinion the principle that a party to a general release cannot take advantage of a suggestio falsi or suppressio veri, in other words, of what would ordinarily be regarded as sharp practice, is sufficient to deal with any unfairness which may be caused by such releases. There is no need to try to fill a gap by giving them an artificial construction.”
[95]Lord Clyde expressly declined to say anything about that sort of situation - see paragraph 87.[96]This sort of point did not figure in any of the evidence which formed the basis of the summary judgment application. While there was reference to ignorance on the part of Mr Brazier and concealment on the part of the defendant, the point was not taken there. Nor was it clearly taken in Mr Sherborne’s principal skeleton argument. It only emerged as a point taken by Mr Sherborne in a note prepared immediately before the hearing, when it was somewhat mixed up with construction points until the very last sentence of the document. He then took it towards the end of his oral submissions.[97]Mr White objected to the point being made to arise in this way, and in my view with good reason. While it was the defendant’s choice to bring the applications in the way in which it did, in a manner which does not produce pleadings to isolate issues, nonetheless a sharp practice point like this should be flagged in some way in the documents so that the person accused knows that it is coming and can consider it. It is not at all satisfactory for the point to arise at the last minute in a supplemental skeleton argument in a manner which could lead to a complaint that the other party had been somewhat bounced by it. I would not allow the point to be taken.[98]In any event there is an answer to it. First, those of their Lordships who dealt with the point were referring to general releases, not a specific release requiring particular construction such as we have in the present cases. Second, as Mr Sherborne himself pointed out more than once, Mr Brazier alleged knowledge of the wrongdoing, and of active concealment of it, in the actual compromised proceedings. There is a whole section devoted to it in the Re-amended generic Particulars of Claim (see paragraphs 34ff). Some of those paragraphs were removed by amendment when exemplary damages were abandoned, but the removed paragraphs are part of the concealment picture known to and/or alleged by Mr Brazier. This is therefore not a case of a claimant knowing nothing of a claim, and knowing nothing of a concealment of it, and requiring equitable relief from the consequences of what would otherwise be a compromise. This is a case of a claimant knowing he had a claim, being uncertain of the extent of the claim, believing (and averring) that there had been concealment (which assumes knowledge of the claim on the part of the defendant) and nonetheless compromising the claims. While the concealment alleged can itself be branded as sharp practice (or worse) it was not sharp practice in relation to the compromise because the claimant was not ignorant of the concealment. In effect, it was all part of the compromise.[99]Accordingly this additional point does not assist Mr Brazier’s case.

Conclusion on Brazier

[100]I therefore conclude, in relation to Brazier, that he is bound by the compromise and that the compromise bars the bringing of this second action.

The Leslie case

[101]The Leslie case follows a similar pattern, and involves a similar compromise which is said to have had a similar effect. The first point taken in relation to Leslie is the same - it is said that the compromise bars the second action. There is also a limitation point which is taken.

Leslie - the first action and its compromise

[102]Mr Leslie was a television presenter, most famously known for his appearances on Blue Peter and This Morning. In the first action he complains about hacking in relation to one identified mobile phone number. A claim form was issued on 14th September 2012 in a different form from Mr Brazier’s. It promises Particulars of Claim “to follow” and in short terms claims an injunction restraining the accessing of voicemail messages and the misuse of confidential information in general terms, and damages for misuse of confidential information. It also claims delivery up, again in general terms, of all documents concerning him and his mobile telephone numbers (in the plural). However, paragraph 4 is a little more specific. It seeks information as to the identity of each employee of the defendant who participated in “the Arrangement”, and all the claimant’s information obtained pursuant to “the Arrangement”. In between it seeks the identity of employees who obtained and used the “Claimant’s information” and all information obtained using mobile telephone numbers and the like of the claimant. Although it does not say that the generic Particulars of Claim were served with it, it only makes sense if served against that background.[103]This action also had the preceding notice to admit and admissions of fact as its background, and relied on the generic Particulars of Claim whether or not they were served with the claim form. By the time of the compromise those generic Particulars were in the same re-amended form as that set out in the appendix to this judgment in connection with the Brazier case.[104]The claimant specific details were shorter than in Mr Brazier’s case. They appear in Appendix 3 to this judgment without its confidential schedules. Attention is drawn to the following points:(i) Paragraph 5(a) refers to just one mobile phone.(ii) Paragraph 23 cross-refers to the Arrangement (albeit without a capital A).(iii) The remainder of the allegations in paragraph 23 are closely tied to the Arrangement and the activities of Mr Mulcaire.(iv) Paragraph 36 complains that damages cannot be particularised until the full nature and extent of wrongful acts have been ascertained (as with Mr Brazier) and paragraph 39 (again in the same way) seeks relief which would expose the full extent of the wrongdoing.(v) The prayer is not explicitly linked to the Arrangement or Mr Mulcaire.[105]This action was compromised by a Tomlin order, like Mr Brazier’s. On 30th November 2012 Linklaters, on behalf of NGN, wrote in similar terms to a letter written to Mr Brazier. It indicated there would be a Part 36 offer of £5,500. However, at that stage NGN was prepared to offer, and did offer, a significantly greater sum within 14 days of acceptance of the offer, and it was open for acceptance until 4pm on 21st December. A Tomlin order was proposed, and a statement in open court offered. Mr Ullstein particularly relied on the third paragraph of that letter which read: “Based upon the information currently available and using a generous criteria as to liability and quantum, NGN has evaluated the maximum sum which it considers your client could hope to recover at trial. A Part 36 offer in excess of this amount will be made to your client on expiry of the ... offer contained herein ... The Part 36 offer will be in the sum of £5,500."[106]The offer was accepted on the last day for acceptance and Mr Leslie’s solicitors said that he would require a statement in open court and a private letter of apology.[107]The relevant Tomlin order was made in January 2013. Like Mr Brazier’s, it contained undertakings not to misuse information or to access voicemail messages, a stay (in the normal way) and permission to read a statement in open court on terms to be agreed. Costs were also provided for. The Schedule opened with the words:
“The Parties have agreed terms in full and final settlement of the Claimant’s claim in proceedings HC12A03643 (the “Claim”) as follows:”
[108]Paragraph 1 of the Schedule provides for the payment of the sum proposed in the letter; paragraph 2 provides for confidentiality in relation to “The terms on which the Parties have agreed settlement of the Claimant’s claim”; and paragraph 3 sets out the terms of the private letter of apology which apologises for the fact that the newspaper has “invaded your privacy”. The terms of a statement in open court were agreed, and in due course it was read out. Paragraph 3 of that statement described the first defendant as the publisher of the News of the World and Mr Mulcaire as a private investigator who worked for the newspaper and who carried out various unlawful activities including blagging information and the unlawful interception of voicemail messages. Paragraph 5 read: “5. The Claimant was deeply angry and upset to discover that, owing to the deliberate destruction of documents by The News of the World, he will never find out the true extent to which his privacy was invaded. Whilst he has received evidence of misuse of private and confidential information from what remains of the First Defendant's records, he does not know, and will never know, the full extent of the Defendant’s activities."[109]After the first defendant publicly apologised, Mr Leslie's counsel read:
"9. In the light of the undertaking not to repeat and the payment of substantial damages to the Claimant by the First Defendant and the public apology given to him today, the Claimant considers that he has been fully vindicated and is happy to let the matter rest."

Leslie - the second action

[110]The second action (the action before me) was commenced by Mr Leslie in a claim form issued on 31st January 2014. It makes general claims for injunctions to restrain the wrongful obtaining of private information, damages for misuse of confidential information and other relief not limited to any particular internal arrangements within the News of the World. Paragraph 5 seeks the provision under oath of information about the newspaper’s activities in the same terms as the corresponding paragraph in the first action.[111]Particulars of Claim were served on 5th June 2014. They plead hacking in relation to the original phone number and an additional one. They go on to plead that NGN operated “a series of arrangements” for the unlawful gathering of private and confidential information and refer in terms to News desk arrangements (including but not limited to the arrangement with Mr Mulcaire) and various arrangements entered into by or through the Features desk. The Features desk activities are then pleaded at some length. Paragraph 24 pleads that call data made available by the MPS represent only a small proportion of the activities of Mr Evans at the Features desk, and paragraph 25 pleads that 4000 interceptions, and probably more, were attempted each year between 2004 and 2008 (based on deductions, projections and what Mr Evans has said). Paragraphs 29 to 32 plead the targeting of Mr Leslie (including an instruction given to Mr Mulcaire), and the hacking of his phones on numerous occasions. It also pleads the making of an improper payment to police officers in December 2002 and July 2008, and payment for stolen photographs in August 2004. This last claim is said, in this application, to be statute-barred.[112]Paragraphs 33 and 34 plead the publication of articles about Mr Leslie, and claim that their publication was both a misuse of information which was wrongly acquired (including acquisition as a result of phone hacking) and as standalone infringements of his right to privacy. The articles were all published in the period from 2002 to 2005 apart from one in June 2008. Concealment and destruction of evidence is alleged in paragraphs 39 to 42, and remedies are sought in the final section.

Leslie - the present application

[113]The present application is not an application to strike out the whole action. It is an application to strike out most, but not all of the paragraphs of the Particulars of Claim, or alternatively summary judgment in relation to the matters pleaded in those paragraphs. It is unnecessary to set out the paragraphs that are impeached. It is sufficient to identify them as the paragraphs which complain about unlawful phone hacking, and two sub-paragraphs which make a claim in respect of photographs said to have been stolen and to have been sold to the newspaper by one Jason Blayde in August 2004. The former set of paragraphs are attacked on the footing that the claim has been compromised in Mr Leslie’s Tomlin order. The latter is attacked on the footing that it is plainly statute-barred (6 years have elapsed) and therefore unsustainable. If those paragraphs are struck out there will be some limited surviving claims surrounding the making of illegal payments to a police offer in exchange for information which led to articles being published about Mr Leslie.[114]The application is supported by a witness statement of Ms Band of Linklaters which describes the claims made in each of the proceedings, describes the settlement and states that NGN maintains that the phone hacking claims and the claim relating to the sale of the photographs are bound to fail. Mr Leslie provided a witness statement in answer. In paragraph 3 he set out a paragraph from the letter of offer to which I have referred above which said:
"Based upon the information currently available and using generous criteria as to liability and quantum, NGN has evaluated the maximum sum which it considers your client could hope to recover at trial." [Emphasis added by Mr Leslie]
"[115]His witness statement went on: 4. Thus, the fundamental basis upon which the offer was made – and accepted by me – was that it was based upon the information available at the 30th November 2012. Certainly I understood and construed the offer as being made upon the basis of what I knew from the evidence then available to me. I would not have accepted the offer had I considered that the Defendant was intending to include in it any evidence which might subsequently become available as to the nature and extent of their wrongdoing. 5. Furthermore, I believed that the wording of the Confidential Schedule was such that it only covered the claims which I had made, and been able to particularise, in those proceedings."[116]His evidence goes on to refer to the evidence which was subsequently made available to him as a result of Operation Pinetree and comments in general terms about the individual paragraphs in Ms Band's witness statement. He refers in particular to the concealment by the defendant of information. He ends by saying that it is not true to suggest that he had been compensated for the wrongs done to him.[117]This evidence makes it look as though Mr Leslie is relying on some sort of misrepresentation made in the letter of offer. This would not be a plausible claim, and the submissions of Mr Ullstein did not take the point. It is apparent from Mr Leslie's own pleadings that he believed there had been concealment and he did not know the full extent of the phone hacking, and his statement in open court repeats that and makes it a further complaint. It ends by accepting that he was vindicated and that he was prepared to let the matter rest. Furthermore, it is not plausible that a litigant in the position of Mr Leslie would rely on a statement such as that emphasised above made in a letter of offer. It is therefore unnecessary to dwell further on that point.

Leslie - the arguments

[118]The submissions of Mr White in this case in relation to the phone hacking allegations were similar to those made in relation to the Brazier case. He drew attention to the extent to which the original claim, whilst containing various allegations about the Arrangement with Mr Mulcaire, nonetheless proceeded from a widely expressed claim form and, particularly via the Re-amended generic Particulars of Claim, brought in activities other than those of the News desk. He draws attention to similar allegations about general phone hacking, publication of articles and the damage to the career of Mr Leslie. In the circumstances it is said that the second action covers the same ground as the first action, albeit more particularised.[119]So far as the limitation point in relation to the stolen photographs is concerned, Mr White submits that a 6 year period applies (the action being one founded on tort) and that no grounds exist for extending that period. The point is sufficiently clear for it to be taken on a strike-out or summary judgment application – see Ronex Properties Ltd v John Laing Ltd [1983] 1 QB 398.[120]Mr Ullstein disputed the equation between the second and first proceedings. He drew particular attention to the fact that the second proceedings concerned a second mobile telephone whose hacking was not complained of in the first action. He drew attention to the fact that the claimant did not know all the matters which are now pleaded in the second action and there had been no attempt to challenge that evidential position. He submitted that the first proceedings related only to the activities of Mr Mulcaire and they did not relate to the activities of the Features Department acting independently of Mr Mulcaire. His skeleton argument drew attention to the emphasised words in the letter of offer and, while not treating them as a representation, he submitted that the words of the Tomlin order could not be construed as encompassing matters which were not based on the information currently available. Had the parties wished to make that wider settlement they would have used a different form of wording such as the familiar "full and final settlement of all and any claims" variety.[121]He took a particular point which he said arose out of Heaton and ors v AXA Equity & Law Life Assurance [2002] 2 AC 329. He said that Mr Leslie was not being compensated for the full measure of the wrongs which he had suffered at the hands of NGN. The size of the second claim makes it apparent that it cannot have been within the claim that was compromised by the Tomlin order in the first action. Mr Leslie received only £15,000 in that compromise. The court was entitled to stand back and view that as being inadequate compensation for the extent of the wrongs pleaded in the second action, and if it came to the conclusion that it was then that would be an important consideration in deciding the scope of the compromise and whether an objective observer would say that Mr Leslie had settled all phone hacking claims. On the facts of this case what was compromised were the matters set out in paragraph 24(a) to (e) of Mr Leslie's claimant-specific Particulars of Claim together with some other bits and pieces which do not matter for these purposes.[122]Mr Ullstein specifically disclaimed any reliance on the sharp practice or unconscionability point which Mr Sherborne had latterly sought to rely on.[123]In relation to limitation, the only point made by Mr Ullstein was that limitation was a defence which had to be pleaded. He did not take any other point on the application of the usual limitation rules. In particular, he did not dispute that a 6 year period would be applicable, and did not suggest that any statutory extension of that period might apply.

Leslie - conclusions on the compromise point

[124]Apart from the point arising out of Heaton, I need say nothing more about the law applicable to this part of the matter. The same law applies in relation to Mr Leslie as applies in relation to Mr Brazier. The relevant wording of his Tomlin order is also the same as that in Mr Brazier’s for practical purposes.[125]In my view the answer in relation to Mr Leslie is the same as in relation to Mr Brazier, for comparable reasons mutatis mutandis. The question is: What was the real subject matter of the compromise? Undoubtedly Mr Leslie's claim, like Mr Brazier's, starts with the Arrangement involving Mr Mulcaire. However, like Mr Brazier's, the Particulars of Claim, when properly read, demonstrate that the claim was really about all phone hacking activity conducted by the News of the World, and Mr Leslie made it clear that he would claim for everything, not necessarily confined to the Arrangement. It is to be accepted for present purposes that most of what he knew about concerned the Arrangement, because that was all that had been made public at that time, but like Mr Brazier he did not accept for one minute that he had obtained all the information that there was to be obtained about phone hacking done by the News of the World – hence his claim for proper disclosure about it all. In the circumstances his claim was about all phone hacking, and not just about Mr Mulcaire's activities.[126]Mr Leslie's second claim contains the additional tweak that it refers to a second phone number. I do not consider that this makes a material difference. I accept that every act of hacking in relation to that number, as well as every act in relation to the first number, amounts to a separate cause of action, but, although not pleaded, the activities in relation to the second phone were of a piece with those relating to the first phone.[127]Mr Ullstein submitted that the activity of working out what the action was about so far as the generic Particulars of Claim were concerned should not involve a very detailed consideration of that document – he submitted that an objective observer would not go through the pleadings with a fine-tooth comb to ascertain what they were really all about. I reject this submission. The detail of the claim is of the essence of the compromise. The Particulars are formal documents which encapsulate the claim. One does not find out what the dispute really was by a casual pass over the pleadings. One finds out what it was by looking at the pleadings properly. That is what they are there for. It is that dispute which was compromised. What was compromised was the dispute with all its detail. (In any event I do not consider that Mr Ullstein's broad brush pass over the pleadings would get him to where he wants to be, because I do not consider that such a pass would demonstrate that the case was only about the Arrangement with Mr Mulcaire.)[128]Thus Mr Leslie, like Mr Brazier, decided to compromise the claim knowing that he did not know (and believing that he would never know) the full-scale of the phone hacking that went on. He also knew that he was compromising his claim before disclosure was given by NGN. Mr Ullstein suggested that the letter from Linklaters dated 7th December 2012 relating to discovery, and referred to above in relation to Mr Brazier's claim, was not sent to those known to be acting for Mr Leslie. I do not think that that is likely to be the case. The point is not made in Mr Leslie's witness statement. The letter was sent to Messrs Atkins Thomson, the lead solicitors in the litigation. Whether or not it was sent on to Mr Leslie's solicitors (Taylor Hampton), the former firm was effectively agent for the latter and it could be expected that it would be passed on. In my view knowledge of that letter should be attributed to Mr Leslie's solicitors, so that he knew there was at the time potential discovery which might make some more disclosure about phone hacking. Like Mr Brazier, Mr Leslie did not wait for that.[129]Mr Ullstein’s reliance on Heaton does not improve Mr Leslie’s position. In Heaton the question was whether the settlement of a claim against one wrongdoer meant that there could be no claim against another wrongdoer. Mr Ullstein relied on two particular paragraphs in the speech of Lord Bingham: "5. There is, however, an obvious difference between the action which culminates in judgment and the action which culminates in compromise: that whereas, save in an exceptional case (such as Crawford v Springfield Steel Co Ltd (unreported) 18 July 1958, Lord Cameron), a judgment will conclusively decide the full measure of damage for which B is liable to A, a sum agreed to be paid under a compromise may or may not represent the full measure of B's liability to A. Where a sum is agreed which makes a discount for the risk of failure or for a possible finding of contributory negligence or for any other hazard of litigation, the compromise sum may nevertheless be regarded as the full measure of B's liability. But A may agree to settle with B for £x not because either party regards that sum as the full measure of A's loss but for many other reasons: it may be known that B is uninsured and £x represents the limit of his ability to pay; or A may wish to pocket a small sum in order to finance litigation against other parties; or it may be that A is old and ill and prefers to accept a small sum now rather than a larger sum years later; or it may be that there is a contractual or other limitation on B's liability to A. While it is just that A should be precluded from recovering substantial damages against C in a case where he has accepted a sum representing the full measure of his estimated loss, it is unjust that A should be so precluded where he has not. … 8(5) A sum accepted in settlement of such a claim may also fix the full measure of a claimant's loss (pp 473 e , 474 e – f ): whether it does so or not depends on the proper construction of the compromise agreement in its context (pp 473 b , 476 e , 474 h ).” [The references are references to a preceding authority.][130]He submitted that the amount that is paid is part of the contract, and the court should stand back and consider whether it was the full measure of the loss in respect of all matters that Mr Leslie knew about.[131]I do not consider that that case helps Mr Ullstein much, if at all. The point referred to at this juncture in Heaton was a different point. That is made clear by the preceding paragraphs in Lord Bingham’s speech:
“3. A brings an action against B claiming damages for negligence in tort. The claim goes to trial, and judgment is given for A for £x. There is no appeal and the judgment sum is paid by B to A. £x will thereafter be taken, in the ordinary way, to represent the full value of A's claim against B. A cannot thereafter maintain an action for damages for negligence in tort against C as a concurrent tortfeasor liable in respect of the same damage for two reasons: first, such a claim will amount to a collateral attack on the judgment already given; and secondly, A will be unable to allege or prove any damage, and damage is a necessary ingredient for a cause of action based on tortious negligence. A cannot maintain an action against C in contract either, in respect of the same damage, for the first reason which bars his tortious claim. There is however no reason of principle, in either case, on the assumptions made in this example, why B should not recover a contribution from C under the Civil Liability (Contribution) Act 1978 as a party liable with him for the same damage suffered by A. 4. In a second example the facts are varied. A brings an action against B claiming damages for negligence in tort. The action does not proceed to judgment because B compromises A's claim by an agreement providing that he will pay A damages of £x, which he duly does. If £x is agreed or taken to represent the full value of A's claim against B, A cannot thereafter maintain an action against C in tort in respect of the same damage for the second reason given in the last paragraph, and although he is not precluded from pursuing a claim against C in contract in respect of the same damage he cannot claim or recover more than nominal damages. There is again, in the ordinary way, no reason of principle in either case, on the assumptions made in this example, why B should not recover a contribution from C under the 1978 Act as a party liable with him for the damage suffered by A.”
[132]All this does not advance the debate at all. The question in the present case is what was within the compromise in terms of causes of action. The question in the instances in Heaton is whether full value was acquired in the compromise so as to represent the whole value of the cause of action, or whether it was discounted for some reason which did not reflect the scope of the true loss. They are different questions. I accept that the amount of the sum paid may be capable of shedding light on the scope of a compromise. A bigger sum would support a construction in favour of a wider compromise, and vice versa, but it is not determinative and is only one factor. In many cases it will be irrelevant, or impossible to deploy. In the present case I do not think that the sum is capable of affecting the construction at all. The facts were that Mr Leslie had a claim, he did not know the full scope of it, he knew he did not know the full scope of it, and he accepted a sum in settlement in the light of all that. One looks to the formulated dispute in its factual context to determine what was being compromised. The sum involved (at least in this case) does not add anything to the debate.[133]For the sake of completeness I would add that Mr Leslie’s statement in open court contains Mulcaire-centric material, but also refers to not knowing the full extent of phone-hacking. It does not materially assist in the debate, but it certainly does not support Mr Leslie’s case on the compromise.[134]Accordingly, for the same reasons as applied to Mr Brazier, Mr Leslie's Tomlin order compromises his second claim so far as it makes claims in relation to phone hacking. Those parts of his present claim which rely on phone hacking should be struck out, or there should be summary judgment for the defendant in respect of them.

Leslie - conclusions on limitation and the sale of the photographs point

[135]The claim for the sale of photographs by Mr Blayde would seem obviously to be statute-barred, and Mr Ullstein did not advance any arguments to the contrary. Nor is any point advanced in Mr Leslie’s evidence which would challenge that. The only point taken by Mr Ullstein is a pleading point – he said that the point needs to be pleaded.[136]In Ronex (supra) the Court of Appeal considered whether a claim could be struck out as disclosing no reasonable cause of action where it would seem to be statute barred. The court held that it could not, but in doing so was taking a technical point about whether the claim disclosed a cause of action. The possible existence of a limitation defence did not by itself prevent there being a cause of action so the action could not be struck out for failing to disclose one. However, members of the court went on to consider whether it could be struck out on a different basis. Lord Donaldson MR said: “Where it is thought to be clear that there is a defence under the Limitation Acts, the defendant can either plead that defence and seek the trial of a preliminary issue or, in a very clear case, he can seek to strike out the claim upon the ground that it is frivolous, vexatious and an abuse of the process of the court and support his application with evidence.” (page 405A).[137]Stephenson LJ added: “I agree and desire only to add a few observations on the limitation point. There are many cases in which the expiry of the limitation period makes it a waste of time and money to let a plaintiff go on with his action. But in those cases it may be impossible to say that he has no reasonable cause of action. The right course is therefore for a defendant to apply to strike out the plaintiffs' claim as frivolous and vexatious and an abuse of the process of the court, on the ground that it is statute-barred. Then the plaintiff and the court know that the Statute of Limitations will be pleaded; the defendant can, if necessary, file evidence to that effect; the plaintiff can file evidence of an acknowledgment or concealed fraud or any matter which may show the court that his claim is not vexatious or an abuse of process; and the court will be able to do, in I suspect most cases, what was done in Riches v. Director of Public Prosecutions [1973] 1 WLR 1019: strike out the claim and dismiss the action.” (page 408A-C).[138]Mr White produced various examples where that course was taken - one example was National Graphical Association v Thimbelby (1983) 4 Comm LR 137. I do not need to refer to others. The principle is clear and sensible.[139]In this case the point was taken in evidence. It is clear that NGN intend to take it. It is equally clear that the claimant has no answer to it. It is open to NGN to rely on the point as making the action unsustainable, and there is no point in allowing it to go on where there would inevitably be a defence which pleads it and where that defence is bound to succeed at trial.[140]It is therefore right to strike out this claim at this stage, and I shall do so. Appendix 1 - Generic Particulars of Claim (without Confidential Schedules)IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION IN THE MATTER OF THE MOBILE PHONE VOICEMAIL INTERCEPTION LITIGATION B E T W E E N:- VOICEMAIL CLAIMANT Claimant - and - (1). NEWSGROUP NEWSPAPERS LIMITED (2). MR MULCAIRE Defendants __________________________________________________________ RE-AMENDED GENERIC PARTICULARS OF CLAIM Pursuant to Permission of Vos J granted on 7 September and 11 October 2012 __________________________________________________________ This claim meets the qualifying criteria set out in the Order dated 20 April 2012 and is a Category [ ] Claim. [Details as highlighted to be added for each claim, see attached document] The Parties[1][Identity of the Voice Mail Interception Claimant][2]The First Defendant was the publisher of the News of the World newspaper which (until its recent closure in July 2011) had a considerable readership in this jurisdiction and which also published its content on its website www.newsoftheworld.com. The First Defendant was also the publisher of The Sun newspaper and its online version at www.thesun.co.uk.[3]The Second Defendant was a private investigator engaged by the First Defendant through his service company to provide “research and information services” from about October 1998 until the arrest of the Second Defendant on 8 August 2006.

Claimant’s mobile telephone communications

[4]At all relevant times, the Claimant had a mobile phone telephone service which s/he used regularly (“the Claimant’s Mobile Telephone”). This mobile telephone number is private to the Claimant. At all relevant times the Claimant used the voicemail service provided by his/her mobile telephone provider. [IF APPLICABLE: The Claimant used his/her mobile telephone for both personal and professional or business purposes and the information left on the Claimant’s voicemail therefore included commercial information.][5][The Claimant’s mobile telephone service provider, number and use of voicemail][6][The Claimants particular use of mobile telephones and concerns about security if any and reasons for changing mobiles telephones if any].[7]The Claimant’s mobile telephone communications and voicemails left by and for the Claimant, together with the means of accessing such messages, including any unique direct dial numbers, the passwords, pin numbers, are private and confidential and fall within the scope of the Claimant’s rights protected under Article 8 of the European Convention on Human Rights and in respect of which the Claimant had and has a reasonable expectation of privacy.[8]The Claimant has, and at all relevant times has had, a reasonable expectation of privacy in respect of the following information (“the Mobile Telephone Information”):8.1 Her/His mobile telephone number and the information necessary to access voicemail messages, namely the DDN (if this was needed) and PIN number;8.2 The fact that a particular person has left a voicemail message for her/him;8.3 The time and date of that voicemail message, and the caller’s telephone number;8.4 The contents of that voicemail message;8.5 The fact that s/he has left a voicemail message for a particular person;8.6 The time and date of that voicemail message, and number of the telephone used by the Claimant to leave the message;8.7 The contents of that voicemail message;8.8 The names and telephone number of the individuals with whom s/he communicated by mobile telephone;8.9 Telephone call, text and location data of the mobile telephone;8.10 The account number for the Claimant’s landline or mobile telephone, and data relating thereto including the password;8.11 The name and address of the account holder;8.12 The ‘friends and family’ numbers associated with a telephone account;8.13 The ‘favourite’ numbers associated with a telephone account;8.14 The PUK (or Personal Unblocking Key) uniquely associated with the Claimant’s SIM card;8.15 Call data relating to the Claimant, including the dialing number and the receiving number, the date and time of call, and length of call;8.16 Text message (or SMS) data relating to the Claimant, including the number of the recipient or sender of the SMS, the date and time of the SMS, and/or other SMS data; and8.17 Picture message (or MMS) data relating to the Claimant, including the number of the recipient or sender of the MMS, the date and time of the MMS, and other MMS data. 151. [8A.1 Her/His medical record and/or details relating to his/her health and/or treatment received and/or medical procedures undertaken and/or the identity of his/her GP or other medical practitioner; and 152. 8A.2 Her/His personal financial information, including details from bank accounts, credit card accounts, AMEX cards accounts, utility services or providers; and 153. 8A.3 Other categories of private information relating to the Claimant][9]The Defendants and each of them knew or ought to have known that the Mobile Telephone Information and the Other Information was confidential, private and within the scope of the protection afforded by Article 8 of the European Convention on Human Rights.[10]The Claimant relies upon the admissions made by the First Defendant’s Leading Counsel on 12 May 2011, in the agreed Statement in Open Court and the Order made on 27 May 2011 (“the Miller Admissions”), in the proceedings brought against the Defendants by Sienna Miller (“the Sienna Miller Action”), and in the First Defendant’s Admission of Facts dated 13 December 2011, in the First Defendant’s Admissions set out in the second letter from its solicitors dated 27 January 2012 and in the 32 agreed Statements in Open Court in the cases brought against the current Defendants in the First Tranche of the Voicemail Interception litigation.[11]The Defendants and each of them owed the Claimant a duty of confidence and/or a duty to respect the privacy of the Claimant in respect of the Mobile Telephone Information and the Other Information.The Claimant relies upon the Miller Admissions and the admissions made in action brought against the same Defendants in the Kelly Hoppen, Ben Jackson, Joan Hammell and Jude Law actions. The First Defendant’s Engagement of the Second Defendant: “the Arrangement”[12]In or about October 1998 the Second Defendant first entered into an arrangement in respect of the News of the World (“the Arrangement”) with the First Defendant under the terms of which he agreed to obtain, on request, information about specific individuals and third parties connected to them, such as their family and/or friends and/or colleagues by unlawful means including by intercepting mobile phone voicemail messages, and/or by obtaining the information needed to intercept mobile phone voicemail messages and passing the same to one of the First Defendant’s journalists to enable that journalist to carry out voicemail interception themselves, and/or by obtaining call data and SMS data and MMS data, and/or by blagging.[13]As admitted in the First Defendant’s Admission of Facts, the Arrangement continued until the arrest of the Second Defendant on 78 August 2006. Notwithstanding that the Arrangement ended upon the arrest of the Second Defendant, the First Defendant’s journalists continued to intercept mobile phone voicemail messages from 8 August 2006 onwards.[14]As admitted in the First Defendant’s Admission of Facts, the Arrangement was evidenced by a series of written agreements between the First Defendant and the Second Defendant (or companies controlled by him), including:(a) 6 June 2001: a confidentiality agreement between the First Defendant (signed by Journalist A referred to in the Confidential Schedule) and the Second Defendant (in the name “Paul Williams”) concerning the provision of confidential information by the Second Defendant.(b) A contract dated 1 September 2001 signed by Journalist A on behalf of the First Defendant and Euro Research and Information Services Limited (a company controlled by the Second Defendant) for a period of 12 months. Under this contract the Second Defendant was paid £1769.23 per week: £92,000 per annum.(c) A letter of agreement dated 1 September 2002 between News of the World (signed by Journalist A) and Euro Research and Information Services for a further period of 12 months. Under this contract the Second Defendant was paid £1769.23 per week: £92,000 per annum.(d) An “Addendum” dated 23 July 2003 – by which the First Defendant, by Journalist A, agreed to pay the Second Defendant a extra £250 per week, making the total weekly remuneration £2,019 for an extended service covering 9.00am to 5.00pm Mondays to Fridays, plus emergency calls outside these hours.(e) A contract dated 4 February 2005 between the Second Defendant (in the name “Paul Williams”) and the First Defendant to pay at least £7,000 to the Second Defendant on the publication of an exclusive story about Gordon Taylor.(f) An Agreement between Nine Consultancy Limited (a company controlled by the Second Defendant) and the First Defendant, (signed by Journalist C referred to in the Confidential Schedule) for a period of 12 months from 1 July 2005. Under this agreement the Second Defendant was paid £2,019 per week, £104,988 per annum.(g) An email dated 4 March 2006 from journalist B on behalf of the First Defendant to the Second Defendant extending the agreement of 1 July 2005 until 2007. 14A. The Arrangement was operated in conjunction with voicemail interception carried out by numerous News of the World journalists who ordinarily obtained access to voicemails by using one phone line to ring the victim’s phone and then make a second concurrent call to the victim’s phone, thereby being routed to the victim’s voicemail. Access to the voicemail could then be obtained by entering the default PIN. 160. 14B.1 On Saturday 20 May 2006 at about 1.30pm, Senior Executive C instructed Journalist B to intercept the phone of an identified victim. Journalist B intercepted this victim’s voicemail messages pursuant to that instruction. 161. 14B.2 Senior Executive C frequently instructed Sean Hoare to carry out voicemail interception, both as a fishing exercise, and as a targeted exercise. As to the former, Senior Executive C suggested that Mr Hoare carry out “telephone fishing”, a euphemism for voicemail interception. As to the latter, when difficulties had been encountered in verifying a story, the Senior Executive C suggested that Mr Hoare should “let his fingers do the talking”, another euphemism for voicemail interception. 162. 14C.1 Sean Hoare learnt from a source that the Spice Girls were in the process of splitting up. Mr Hoare intercepted the voicemail messages of the various band members, and ascertained that there were frantic attempts by the other band members to try to placate Gerri Halliwell and try to persuade her not to leave the band. Mr Hoare played intercepted voicemail messages of the members of the band to Senior Executive C, and told Senior Executive C that they were recordings of intercepted voicemail messages. 163. 14C.2 Sean Hoare played recordings of intercepted voicemail messages to Senior Executive C on numerous other occasions. (1). obtaining stories; (2). corroborating or verifying stories; (3). obtaining information to add colour to a story. 167. Senior Executive C knew the value to the First Defendant of the activities of the Second Defendant who was particularly skilled at voicemail interception, and who was able to intercept voicemail messages in circumstances where there was a customized PIN, and who was skilled at blagging such that he could obtain the Mobile Telephone Information and the Other Information.[15]Payments to the Second Defendant by the First Defendant were authorised at the editorial level by the individuals listed in paragraph 1 (a) to (c) of the Confidential Schedule. By 2002, the Second Defendant was receiving regular instructions from those persons outlined in paragraph 4 of the Confidential Schedule. Those persons set out in paragraph 3 of the Confidential Schedule used or were aware of the arrangement between the First and Second Defendant.[16]By reason of the above matters, at all relevant times, the Second Defendant was a servant or agent of the First Defendant and was acting on behalf of and within the scope of the authority conferred by the First Defendant.[17]For these reasons, as now admitted by the First Defendant, at all relevant times the First Defendant was vicariously liable for the acts of the Second Defendant as well as for the acts of its other employees. The Claimant also relies on the First Defendant’s admissions of liability for the actions of the Second Defendant in the actions brought by Sienna Miller, Kelly Hoppen, Sky Andrew, Andy Gray, Tessa Jowell and Joan Hammell.

The Defendants’ Arrangement for the Obtaining of Private Information

[18]As stated above, from about 1998, the Second Defendant entered into a conspiracy with senior executives of the First Defendant including Clive Goodman and Journalists A, B, C, D and E (set out in paragraph 2 of the Confidential Schedule) whereby he would, on their behalf, obtain information about individuals of interest to the First Defendant’s journalists (“the Victims”) and use electronic intelligence and eavesdropping in order to obtain this information. He also agreed to provide daily transcripts of voicemail messages to the First Defendant’s Journalists. This agreement or arrangement was approved of at Editorial level by those persons mentioned in paragraph 5 of the Confidential Schedule. This agreement or arrangement constituted a conspiracy between senior executives and/or journalists of the First Defendant and the Second Defendant. The Claimant will refer to this conspiracy as “the Arrangement”.[19]The Victims included the Claimant.[20]The Arrangement involved the unlawful interception of voicemail messages by the Second Defendant and his associates acting on behalf of the First Defendant, on the instruction of the First Defendant’s journalists and the unlawful interception of voicemail messages by the First Defendant’s journalists using information provided by the Second Defendant and/or others working for, or instructed by, the First Defendant.[21]In particular, the Arrangement involved the following elements:21.1 The Second Defendant and/or his associates (that is other individuals involved in, or acting with the Second Defendant under the Arrangement) and/or private investigators such as Steven Whittamore acting on behalf of the First Defendant obtained from mobile telephone companies and from companies which provide services to mobile telephone companies by making corrupt payments to employees of such companies and/or by deception and/or by other unlawful means the mobile telephone numbers, direct dial numbers, pin numbers, telephone call data, text data, picture message data, account numbers, the name and address of the account holder, favourite numbers, ‘friends and family’ numbers, location data and other personal information (including financial information such as details of bank accounts, credit cards and utility services) about individuals which were of interest to the First Defendant’s journalists, namely individuals with a high public profile or those friendly or associated with the Victims. The Second Defendant used CTI in connection with Vodafone, CSS/Merlin in respect of Orange, Excalibur in respect of T-Mobile (formerly One2One), and another company in respect of O2 (formerly Cellnet).21.2 The Second Defendant and his associates by making corrupt payments and/or by fraud and/or by deception and/or other unlawful means, induced mobile telephone companies to disclose direct dial numbers and/or disclose the call data, text data and location data and/or reset the “pin numbers” on the voicemails of the Victims.21.3 The Second Defendant and his associates intercepted the voicemail messages of the Victims for the purpose of obtaining information about their private lives for publication in the “News of the World” or to assist the First Defendant’s journalist in their journalistic inquiries. The Second Defendant and his associates noted, recorded and/or transcribed these messages.21.4 The Second Defendant and his associates provided transcripts and other details of the voicemail messages of the Victims to the First Defendant’s journalists for use in the preparation of articles to be published in the “News of the World”.21.5 The Second Defendant and/or his associates provided direct dial numbers, pin numbers, favourite telephone numbers, call data, passwords and other information, such as instructions on how to listen to voicemail messages without detection, in relation to some Victims to the First Defendant’s journalists in order to enable them to intercept voicemail messages and/or obtain other Mobile Telephone Information. The First Defendant’s journalists carried out such voicemail message interception via the First Defendant’s hub phones, using the First Defendant’s Vodafone mobile phones, using local payphones and from the First Defendant’s journalist’s home phones and personal mobile phones. The First Defendant has failed to preserve call data from calls made from the First Defendant’s Vodafone mobile phones and from calls made from the First Defendant’s hub phones to numbers registered by its internal telephone switchboard as being to be Vodafone mobile phones (which included calls to Vodafone DDNs).21.6 The Second Defendant and his associates obtained information about the location of mobile telephones using a process known as “pinging”, whereby an individual’s movements can be tracked by means of the identification of which particular mobile phone tower the individual’s mobile phone was connecting to at any given time. 21. A As to paragraph 21.5, the Claimant will invite the Court to infer that any telephone calls made by the Second Defendant to the Claimant’s DDN that were not long enough to listen to voicemail messages, were to check that the DDN was still in use, and/or that the PIN still worked, and that this information was then passed to the First Defendant’s journalists who used the information to intercept voicemails either using the News of the World hub telephone or another telephone, including their own mobile telephones and home telephones. If the number had changed or the PIN no longer worked, the Second Defendant might be required to trace a new number or reset the PIN. The Claimant will rely on the following by way of example: (i). On 17 March 2006, the Second Defendant made 13 telephone calls between 15.04 and 15.20 to compromised or potentially compromised voicemails, eight of which were telephone calls lasting 8 seconds or less. On the same afternoon at 15.30 the Second Defendant telephoned journalist B on his mobile and spoke to him for 1 min 34 seconds. Subsequent to this call there were 4 calls to Orange generic voicemails in the afternoon of 17 March 2006 from the News of the World “hub” telephone. (ii). On 3 May 2006, the Second Defendant made 23 telephone calls between 9.44 and 10.40 to compromised or potentially compromised voicemails, nine of which were telephone calls lasting 9 seconds or less. The Second Defendant telephoned journalist B on his mobile at 10.40 on the same day and spoke to him for 3 mins and 12 seconds. Following this telephone call there were extensive and widescale telephone calls from the News of the World “hub” telephone to compromised or potentially compromised voicemails on 3 May 2006 and lasting until 6 May 2006, amounting to a total of 132 such calls. (iii). The Second Defendant and Mr Clive Goodman repeatedly intercepted voicemails left for Helen Asprey. When Ms Asprey set a new customised PIN, the Second Defendant would telephone O2 customer services and cause Ms Asprey’s PIN to be reset to default. The Second Defendant caused Ms Asprey’s PIN to be reset to default by this method on inter alia 27th January 2006, 10th February 2006, 14th February 2006, 16th February 2006, 23rd March 2006, 28th March 2006, and 14th April 2006. Shortly after re-setting the PIN in the call to O2 customer services, the Second Defendant would(a) call Ms Asprey’s DDN to check that the voicemail could be intercepted using the reset PIN;(b) follow that up with a call to Mr Goodman to inform him that the voicemail was accessible once again. Mr Goodman would then call Ms Asprey’s DDN and intercept her voicemail messages. A similar procedure was used by the Second Defendant and Mr Goodman in respect of Mr Paddy Harveson and Mr Jamie Lowther-Pinkerton. It is to be inferred that the Second Defendant used the same procedure in respect of voicemails for other victims that were being intercepted at the request of Mr Goodman, and for other victims that were being intercepted at the request of other News of the World journalists. (iv). The Second Defendant sent text messages to Clive Goodman that contained the PIN codes for Helen Asprey, Jamie Lowther-Pinkerton, and Paddy Harverson. It is to be inferred that the Second Defendant communicated DDNs and/or PINS in respect of other victims to Mr Goodman via text message. It is to be inferred that the Second Defendant communicated DDNs and/or PINS in respect of other victims to other News of the World journalists via text message, amongst other means. 21. B The call data setting out telephone calls to compromised or potentially compromised voicemails by the Second Defendant and employees/agents of the First Defendant only represents a small percentage of the calls made by the Defendants to voicemails to obtain confidential and/or private information. The Claimant will, in particular (pending further disclosure and the provision of further information) rely on the following: (i). The call data preserved in respect of relevant phone accounts covers a relatively short period in time and is no more than a snapshot of the unlawful voicemail interception. It is to be inferred that if there was more call data for such phone accounts it would disclose further calls made to intercept voicemail messages. (ii). The fact that there are several relevant phone accounts of the Second Defendant in respect of which no call data has been preserved. The Second Defendant had a number of SIM cards and mobile telephones, not all of which are listed or accounted for in the available call data. It is to be inferred that if there was such call data it would disclose calls made to intercept voicemail messages. (iii). The First Defendant’s journalists intercepted voicemail messages using their home telephones, pay phones and mobiles in respect of which the call data has not been preserved. Pending the provision of further information and/or disclosure, the Claimant relies upon the following: (a) Calls were made to the DDN for Kate Waddington in the period from 23December 2005 to 7 August 2006 (that being the day before Mr Goodman and the Second Defendant were arrested. During this period, Mr Goodman made 52 phone calls to Ms Waddington’s DDN from his home landline, the longest interception being for 8 mins 11 secs. During the same period, the Second Defendant made 11 calls to Ms Waddington’s DDN from his various landlines, the longest interception being for 4 mins19 secs. It is to be inferred that the Second Defendant provided Mr Goodman with the information needed to intercept Ms Waddington’s voicemail messages. During the aforesaid period, Mr Goodman made nearly 5 times as many interception calls than the Second Defendant, and the longest interception made by Mr Goodman was almost twice as long as the longest interception made by the Second Defendant. (b) For the periods in respect of which they were charged and pleaded guilty in respect of the 3 members of the Royal household, namely Helen Asprey, Jamie Lowther-Pinkerton and Paddy Harverson, the Second Defendant made 122 interceptions, and Mr Goodman made 487 interceptions. Thus during this period, Mr Goodman made 4 times more interception calls than the Second Defendant. Mr Goodman carried out such interceptions using both his home landline telephone, and using his work landline telephone at Wapping. The Claimant reserves the right to rely upon such further examples as can be seen from the disclosure, and will invite the court to draw the inference that the First Defendant’s journalists, including Mr Goodman, were carrying out interception on a substantially greater scale in terms of the number of interceptions per victim, and the length of interceptions per victim, than the Second Defendant, not least because they had a greater and more direct knowledge of and interest in the personal lives and activities of the victims than him. (iii). As at the time of the raid by the Metropolitan Police on 8 August 2006, the Second Defendant was in the possession of recordings of 22 voicemail messages left for Anthony Culhane in the period from about 19 August 2005 to about 8 September 2005, notwithstanding that there is no call data evidencing such interceptions by the Second Defendant, and notwithstanding that the Second Defendant’s notes do not record a PIN for Anthony Culhane. (iv). As at the time of the raid by the Metropolitan Police on 8 August 2006, the Second Defendant was in the possession of recordings of 20 voicemail messages left for Kerry Katona, notwithstanding that there is no call data evidencing such interceptions by the Second Defendant. (v). While the First Defendant has completed a search of its database for calls made to the Orange Mobile “Generic Voicemail” number for the period 2004-2009, this is only one of the four main relevant mobile service providers. This search showed an average of 1,305 calls a year to that mobile service provider in the period 2004-2006 – with a 2007 to 2008 average of 292 a year. It is reasonable to infer that a substantial proportion of these calls, certainly between 2004 and 2006, were for the purpose of voicemail interception. On the assumption that a comparable number of voicemail interception calls were being made to each of the other three service providers, the First Defendant’s landlines were being used to make about 4,000 voicemail interception calls per year. The Claimant does not know how many voicemails were intercepted per call. The Claimant will contend that, in fact, the level of voicemail interception was even higher given the relative popularity of the Vodafone network and the O2 network at the material time as compared to the Orange network. Those proportions can be estimated from the relative network usage of those victims in respect of which disclosure has been received as at the date of trial. (vi). The First Defendant’s mobile phone provider for its journalists and employees was Vodafone. Further, calls made from the First Defendant’s landlines to numbers registered by its internal telephone switchboard to be Vodafone mobile phones (which included Vodafone DDNs) were routed via the Vodafone network. The First Defendant has failed to preserve the call data in respect of all such calls. The only snapshot of such call data that exists was that short period obtained and preserved by the Metropolitan Police during Operation Caryatid. (vii). The Defendants have admitted intercepting the voicemail messages of a number of individuals (such as Sienna Miler, Jude Law, Ben Jackson, Sadie Frost and Ciara Parkes) over a substantial period of time. The available interception call data in relation to these individuals is very limited. (viii). No call data has been preserved for pay phones used by the First Defendant’s journalists. (ix). No call data has been preserved for any home landlines used by the First Defendant’s journalists, save for Mr Goodman for a limited period. (x). No call data has been preserved for any personal mobile phones used by the First Defendant’s journalists, save for Mr Goodman for a limited period. 21. C The Second Defendant’s notebooks do not contain all the information that the Second Defendant obtained unlawfully, both in terms of the information needed to intercept the voicemail messages left for particular individuals, and in terms of the information unlawfully obtained from their voicemail messages and elsewhere. The Claimant will rely, in particular, on the following: (i). The fact that the Second Defendant’s notebooks do not contain a non-generic PIN number used by a victim does mean that this PIN was not known to the Second Defendant and that the victim’s voicemail messages were not intercepted by the Second Defendant and/or the First Defendant’s employees or those instructed by the First Defendant. By way of example, the Second Defendant’s notes do not contain a PIN number for Mr Anthony Culhane’s voicemail, but only Anthony Culhane’s mobile phone number and the generic Orange hub number. Notwithstanding the absence of the note of a PIN number, the Second Defendant successfully intercepted voicemail messages left for Anthony Culhane, and made audio recordings of 20 such messages. (ii). The fact that the Second Defendant’s notebooks do not contain identifiable notes taken from voicemail messages does not mean that the Second Defendant did not intercept such messages. By way of example: (a) In the case of Dennis Rice, the Second Defendant made audio recordings of several voicemail messages left for him, yet the Second Defendant’s notes only record information in respect of one or two of those voicemail messages. (b) In the case of Anthony Culhane, the Second Defendant made audio recordings of 20 voicemail messages left for him, yet the Second Defendant’s notes only record information in respect of about 2 of those 20 audio-recorded voicemail messages.(c) In the case of Kerry Katona, the Second Defendant made audio recordings of 20 voicemail messages left for her, yet the Second Defendant’s notes only record information in respect of about 2 of those 20 audio-recorded voicemail messages.(d) In the case of Jade Schmidt, the Second Defendant made audio recordings of voicemail messages (including messages left by Jude Law, Sadie Frost, and Ben Jackson), yet the Second Defendant’s notes did not record any information in respect of those audio-recorded voicemail messages.[22]In support of the contention that the Defendants agreed and executed the Arrangement the Claimant will rely on:22.1 the First Defendant’s Admission of Facts where it admits various facts relating to the obtaining of information and the voicemail interception “modus operandi”.22.2 the conviction on 29 November 2006 at the Central Criminal Court of the Second Defendant, and Clive Goodman, an employee (and former News Editor) of the First Defendant on an indictment containing 20 counts arising out of the interception of voicemail messages of 8 Victims.22.3 the admissions made by the First and Second Defendants in actions brought against them by other Victims including Andy Gray, Tessa Jowell, Ben Jackson, Sienna Miller and Kelly Hoppen, and in other Statements in Open Court referred to in paragraph 10 above.22.4 the public statement made by the Second Defendant on 4 July 2011 in which he admitted that he was placed under “constant demand for results” by the First Defendant and its journalists.22.5 the admission made by the Second Defendant during the course of him being secretly taped by one of his Victims who approached him on or about 7 July 2011 that he was commissioned or instructed to conduct such activities “by committee”, from which it is to be inferred that he was instructed by a significant number of organised or official members of the First Defendant’s staff. The Claimant will refer if necessary to the broadcast of this secret recording which was shown on Channel 4 News on 7 July 2011.22.6 the ET1 complaint form filed by the Second Defendant in his employment tribunal proceedings brought against the First Defendant for unfair dismissal in which, at Part 5, he stated as follows: “[the Second Defendant] also claims that his dismissal was the result of the [First Defendant] believing that he was about to make a protected disclosure in that he was about to reveal the identities of other employees of the Respondent who were equally culpable and had indeed instructed him to carry out the duties which amounted to criminal offences. None of these individuals has been dismissed by [the First Defendant]... The [Second Defendant] claims that his dismissal was not the result of the offences to which he pleaded guilty, as the [First Defendant] was aware of these in early 2006 when the [Second Defendant] was arrested yet continued to pay him without question up to the day before he was imprisoned.”22.7 the statement by Mr Clive Goodman, the former Royal Editor of the News of the World, in a letter dated 2 March 2007 to News International Limited, that other members of staff (in additional to himself) were carrying out phone hacking and that the practice was widely discussed at the daily editorial conference until explicit reference to it was banned by the Editor and that most articles over the two year period prior to arrest derived from voicemail interception.22.8 the “corner names” recorded by the Second Defendant in his notes to identify the journalists who had given him instructions, showed that the Second Defendant had been instructed on at least 2,226 occasions over a period of about 5 years, that is on average more than once a day throughout the period.22.9 The Second Defendant’s admissions in his Reply to the Request for Further Information served in the claim brought by Steve Coogan (signed by the Second Defendant on 26 August 2011), in particular that:(i) Journalist B asked the Second Defendant to intercept the mobile phone voicemail of Max Clifford, and the Second Defendant duly passed Journalist B information that he had accessed from Mr Clifford’s mobile phone voicemails;(ii) Journalist B asked the Second Defendant to intercept the mobile phone voicemail of Elle Macpherson, and the Second Defendant duly passed Journalist B information that he had accessed from Ms Macpherson’s mobile phone voicemails;(iii) Journalist B asked the Second Defendant to intercept the mobile phone voicemail of Skylet Andrew, and the Second Defendant duly passed the news desk at the News of the World information that he had accessed from Mr Andrew’s mobile phone voicemails;(iv) Journalist C asked the Second Defendant to intercept the mobile phone voicemail of Gordon Taylor, and the Second Defendant duly passed Journalist C and Journalist F information that he had accessed from Mr Taylor’s mobile phone voicemails;(v) Whilst the Second Defendant has asserted that he cannot now recall which journalist asked him to intercept the mobile phone voicemail of Simon Hughes MP (although it is the Claimant’s case that it was Journalists A, B and C), the Second Defendant has admitted intercepting Mr Hughes’ mobile phone voicemails, and passed the news desk at the News of the World information that he had accessed from Mr Hughes’ mobile phone voicemails.22.10 The Second Defendant has relied upon the privilege against self-incrimination (“PSI”), including in particular in Nicola Phillips’ claim in which PSI was asserted in respect of the offence of conspiracy to intercept voicemail messages in respect of a question concerning the identity of the person who instructed him to intercept Ms Phillips’ voicemail messages.

Unlawful Acts in relation to the Claimant pursuant to the Arrangement

[23]The Defendants targeted the Claimant pursuant to the arrangement [Date(s) of and reasons for acts complained of].[24]As a result the Defendants obtained private and confidential information relating to the Claimant (“the Claimant’s Information”). The best particulars which the Claimant can give prior to full disclosure by the Defendants and/or third parties and the provision of Further Information are as follows: [Details of unlawful acts complained of including private information in the notes of the Second Defendant, any references to individuals employed by the News of the World and all details of any call data from the MPS and any other unlawful activity such as blagging]: It is to be inferred that, as a result of targeting the Claimant, the Defendants obtained access to numerous other voicemail messages to and from the Claimant including personal messages left by and for her/his friends and family. This included the following information:(a) The fact that the Claimant had telephoned and left voicemail messages for particular individuals;(b) The time and date and duration of that voicemail message;(c) The contents of those voicemail messages, which would have included personal messages;(d) The fact that particular individuals and/or had left voicemail messages for the Claimant;(e) The time and date and duration of that voicemail message, and the caller’s telephone number;(f) The contents of those voicemail messages; and(g) The names and telephone number of the individuals with whom the Claimant communicated by mobile telephone.[25]Further or alternatively, by obtaining and recording the Claimant’s Information, the Defendants have breached the Claimant’s confidence and misused her/his private information.[26]The Claimant will invite the Court to infer that the Defendants obtained and recorded the Claimant’s Information for the First Defendant’s purposes as the publisher of the “News of the World” and, in particular for the investigation and publication of stories based upon, using, including or corroborated by the Claimant’s Confidential information.

Publications in the News of the World [IF APPLICABLE]

[27]At all relevant times, the First Defendant published in the News of the World, on its website and on databases, a series of articles concerning the Claimant’s private and family life (the “Articles”) as set out in of the Confidential Publications Schedule. The Articles continued to be published online at www.newsoftheworld.com until about 2010 and remain readily available through popular press cuttings databases such as Factiva.com and LexisNexis.[1]The Claimant will invite the Court to infer that some or all of the private information in the Articles derived from the unlawful activities of the Defendants pursuant to the Scheme. The Claimant is unable to provide further details until after the provision of further information and/or disclosure by the Defendants. For the avoidance of doubt, the Claimant relies on the publication of the Articles as both:1.1 being the product of the misuse of the Claimant’s Information as referred above, which misuse was deliberately concealed by the Defendants from the Claimant’s knowledge and/or was obtained by means of deception and/or fraud (including but not limited to the deception of the Mobile Telephone Number providers); and1.2 giving rise to a freestanding cause of action for misuse of private information and/or breach of confidence.[2]The Articles each contained actual or purported information relating to the Claimant’s private and family life, as set out the Confidential Publications Schedule. The Claimant will refer to the Articles in their entirety at trial for their full terms.[3]The Articles were published without the Claimant’s consent or prior knowledge and in respect of them s/he had a reasonable expectation of privacy, and/or fell within the scope of the Claimant’s private life under Article 8 of the European Convention on Human Rights. In further support of this contention, the Claimant will rely upon the following:3.1 The self-evidently private nature of the information in the Articles.3.2 Further, as is also evident from the Articles themselves, they intrude upon the Claimant’s private life, about intimate or personal moments which s/he had shared and/or was sharing with her/his family or friends.3.3 The Articles do not reveal any information about the Claimant performing any professional duties or making any ‘public appearances’.[4]The publications of the Articles were wrongful and constituted breaches of confidence, unjustified infringements of the Claimant’s right to privacy and misuse of his private information, [including commercial information relevant to the Claimant’s business or professional activities]. In further support of this contention, and without reversing the burden of proof, which lies squarely upon the First Defendant if and insofar as it seeks to justify the publication of these Articles as a legitimate matter of public interest or otherwise, the Claimant will rely on the following matters:4.1 The facts and matters set out in paragraph 30 above.4.2 The fact the Claimant is not a public figure, nor does s/he perform any public duties.4.3 In publishing the Articles, the First Defendant was, as a result, disclosing information about the private life of an individual who does not exercise any official functions.4.4 Further, the publication of this material was also not capable of contributing to a debate in a democratic society relating to matters of public interest.[5]In these circumstances, and by publishing the Articles, the First Defendant acted in breach of confidence, infringed the Claimant’s right to privacy and/or misused her/his private information.

Harassment and/or Surveillance of the Claimant [If applicable]

[6]The Defendants have pursued a deliberate course of conduct which constitutes harassment under the Protection from Harassment Act 1997 by placing the Claimant under surveillance (although seeking to conceal the same from his knowledge despite his suspicions about being so targeted) by seeking to obtain the Claimant’s Mobile Telephone Information [and details of any physical surveillance by the First Defendant and/or other unlawful activity including blagging]. The Defendants’ conduct as aforesaid has caused the Claimant extreme concern about her/his privacy. [Details of Conduct relied on as constituting harassment pursuant to the Protection from Harassment Act 1997]. (a). It involved the obtaining, storage and use of private information concerning the Claimant, namely information as to the Claimant’s whereabouts or movements at particular times and information about whom the Claimant met and spoke to and the activities engaged in by the Claimant. (b). It was intrusive and involved an unlawful interference with the Claimant’s rights under Article 8 of the European Convention on Human Rights. (c). It was foreseeable that, on discovering that s/he had been the subject of a surveillance operation conducted by the First Defendant, the Claimant would be alarmed and distressed and would fear further surveillance.

Concealment of Unlawful Actions

[7]At all relevant times, Senior editorial staff, journalists and directors of the First Defendant knew about the extent of its wrongdoing and sought to conceal it by putting out public statements they knew to be false. From June 2008 at the latest, senior executives of the First Defendant knew that the practice of voicemail interception at the News of the World extended beyond a single journalist and that the ‘lone rogue reporter’ story was not true. The Claimant will rely on the following statements:34.1 In July 2009, in its statement available on the website of News Corporation the First Defendant stated: “From our own investigation, but more importantly that of the police, we can state with confidence that, apart from the matters referred to above, there is not and never has been evidence to support allegations that:• ‘News of the World’ journalists have accessed the voicemails of any individual.• ‘News of the World’ or its journalists have instructed private investigators or other third parties to access the voicemails of any individuals.• There was systemic corporate illegality by News International to suppress evidence. “It goes without saying that had the police uncovered such evidence, charges would have been brought against other ‘News of the World’ personnel. Not only have there been no such charges, but the police have not considered it necessary to arrest or question any other member of ‘News of the World’ staff. “Based on the above, we can state categorically in relation to the following allegations which have been made primarily by the ‘Guardian’ and widely reported as fact by Sky News, BBC, ITN and others this week:• It is untrue that officers found evidence of News Group staff, either themselves or using private investigators, hacking into "thousands" of mobile phones.• It is untrue that apart from Goodman, officers found evidence that other members of News Group staff hacked into mobile phones or accessed individuals' voicemails.• It is untrue that there is evidence that News Group reporters, or indeed anyone, hacked into the telephone voicemails of John Prescott.• It is untrue that “Murdoch journalists” used private investigators to illegally hack into the mobile phone messages of numerous public figures to gain unlawful access to confidential personal data, including: tax records, social security files, bank statements and itemised phone bills.• It is untrue that News Group reporters have hacked into telephone voicemail services of various footballers, politicians and celebrities named in reports this week.• It is untrue that ‘News of the World’ executives knowingly sanctioned payment for illegal phone intercepts.• It is untrue that officers found evidence of News Group staff, either themselves or using private investigators, hacking into "thousands" of mobile phones.• It is untrue that apart from Goodman, officers found evidence that other members of News Group staff hacked into mobile phones or accessed individuals' voicemails.• It is untrue that there is evidence that News Group reporters, or indeed anyone, hacked into the telephone voicemails of John Prescott.• It is untrue that “Murdoch journalists” used private investigators to illegally hack into the mobile phone messages of numerous public figures to gain unlawful access to confidential personal data, including: tax records, social security files, bank statements and itemised phone bills.• It is untrue that News Group reporters have hacked into telephone voicemail services of various footballers, politicians and celebrities named in reports this week.• It is untrue that ‘News of the World’ executives knowingly sanctioned payment for illegal phone intercepts.34.2 In August 2009, the then editor of the News of the World, Colin Myler informed the Press Complaints Commission: “Our internal enquiries have found no evidence of involvement by ‘News of the World’ staff other than Clive Goodman in phone message interception beyond the e-mail transcript which emerged in April 2008 during the Gordon Taylor litigation and which has since been revealed in the original ‘Guardian’ report.”34.3 In September 2010, the News of the World issued a statement that said: “We reject absolutely any suggestion that there was a widespread culture of wrongdoing at the ‘News of the World’”.[8]Senior editorial staff, journalists and directors of the First Defendant also sought to conceal wrongdoing by deliberately failing to provide the police with all the facts and matters of which it was aware and deliberately deceiving the police in respect of the purpose of payments to the Second Defendant. In Autumn 2006, the First Defendant failed to respond to the Metropolitan Police’s request to produce available evidence relevant to their investigation, including emails between journalists and editors, receipts, invoices and telephone records of calls with the Second Defendant.[36]Further, senior editorial staff, journalists and directors of the First Defendant took active steps to destroy evidence of wrongdoing, which evidence included a very substantial number of emails and the computers of journalists A to E which had been in use during the Arrangement. This was done in circumstances in which the First Defendant had, and was aware that it had, a legal obligation to preserve all relevant evidence. The Claimant relies on the destruction of evidence by the First Defendant in support of its case that the First Defendant was knowingly misusing victims’ private information (including, it is to be inferred, the Claimant’s private information) by voicemail interception and other unlawful acts set out above. Since the arrests of Clive Goodman and Glenn Mulcaire in August 2006, the First Defendant has consistently sought to conceal the extent of its wrongdoing. In support of this allegation the Claimant relies upon the following facts and matters:34.1 In Autumn 2006, the First Defendant failed to respond to the Metropolitan Police’s request to produce available evidence relevant to their investigation, including emails between journalists and editors, receipts, invoices and telephone records of calls with the Second Defendant.34.2 In February 2008, on Radio 4 Stuart Kuttner stated:
“It happened once at the ‘News of the World’. The reporter was fired; he went to prison. The editor resigned”. 34.3 In July 2009, in its statement available on the website of News Corps the First Defendant stated: “From our own investigation, but more importantly that of the police, we can state with confidence that, apart from the matters referred to above, there is not and never has been evidence to support allegations that: • ‘News of the World’ journalists have accessed the voicemails of any individual. • ‘News of the World’ or its journalists have instructed private investigators or other third parties to access the voicemails of any individuals. • There was systemic corporate illegality by News International to suppress evidence. “It goes without saying that had the police uncovered such evidence, charges would have been brought against other ‘News of the World’ personnel. Not only have there been no such charges, but the police have not considered it necessary to arrest or question any other member of ‘News of the World’ staff. “Based on the above, we can state categorically in relation to the following allegations which have been made primarily by the ‘Guardian’ and widely reported as fact by Sky News, BBC, ITN and others this week: • It is untrue that officers found evidence of News Group staff, either themselves or using private investigators, hacking into "thousands" of mobile phones. • It is untrue that apart from Goodman, officers found evidence that other members of News Group staff hacked into mobile phones or accessed individuals' voicemails. • It is untrue that there is evidence that News Group reporters, or indeed anyone, hacked into the telephone voicemails of John Prescott. • It is untrue that “Murdoch journalists” used private investigators to illegally hack into the mobile phone messages of numerous public figures to gain unlawful access to confidential personal data, including: tax records, social security files, bank statements and itemised phone bills. • It is untrue that News Group reporters have hacked into telephone voicemail services of various footballers, politicians and celebrities named in reports this week. • It is untrue that ‘News of the World’ executives knowingly sanctioned payment for illegal phone intercepts. 34.4 In evidence before the Culture, Media and Sport Select Committee in July 2009 Colin Myler, on behalf of the First Defendant, asserted that there was no evidence of widespread wrongdoing and or hacking of telephone messages at the ‘News of the World’. This was widely reported in the media without further comment or correction from Mr Myler or the First Defendant. 34.5 In the same Committee Hearing, on 1 July 2009, Andy Coulson stated that he was not aware of, and did not condone, phone hacking at the ‘News of the World’. This was widely reported in the media without further comment or correction from Mr Coulson or the First Defendant. The Claimant will refer to the fact that despite being the Chief communications Officer for the Prime Minister at the time, Mr Coulson was still in receipt of payments from News International. 34.6 In August 2009, Colin Myler informed the Press Complaints Commission: “Our internal enquiries have found no evidence of involvement by ‘News of the World’ staff other than Clive Goodman in phone message interception beyond the e-mail transcript which emerged in April 2008 during the Gordon Taylor litigation and which has since been revealed in the original ‘Guardian’ report.” 34.7 On 4 November 2009, in a letter to the Select Committee, Ms Rebekah Brooks (the former editor of both the News of the World and The Sun) explained that she had asked Mr Jon Chapman to deal with the Committee’s request for clarification of payments by News International to Mr Goodman, and that he had responded as follows: “Clive Goodman’s employment with News Group Newspapers Limited was terminated in early February 2007. Subsequently, he engaged a City law firm with a view to bringing employment tribunal proceedings, the primary claim being that News Group Newspapers Limited failed to follow the statutory dismissal and disciplinary procedure in relation to termination of his employment. … Pursuant to the agreement, Mr Goodman was paid his notice and an agreed amount representing a possible compensatory award at tribunal (which was some way below the £60,600 limit on such awards).” 34.8 In September 2010, the News of the World issued a statement that said: “We reject absolutely any suggestion that there was a widespread culture of wrongdoing at the ‘News of the World’”. 34.9 It is to be inferred that the actions of the First Defendant set out in paragraph 26.1 above were a deliberate attempt to conceal its unlawful actions. Further, the assertions of the First Defendant as set out in paragraphs 26.2 to 26.8 were false and known to employees of the First Defendant to be false. In support of this the Claimant will rely upon the following facts and matters: (a) Senior Executives and/or journalists at the First Defendant had admitted to Surrey Police in April 2002 that the First Defendant had unlawfully accessed Milly Dowler’s voicemail messages. (b) An email from the Second Defendant to Ian Edmondson, the then News Editor of the “News of the World” and an employee of the First Defendant, sent, pursuant to the Arrangement, on 28 April 2006. The body of the email contained Joan Hammell’s Mobile Telephone number, DDN and PIN Number and stated that there are “45 voicemail messages”
. It is to be inferred that the Second Defendant had unlawfully obtained the number and details of these messages from Joan Hammell’s voicemail in order to enable Mr Edmondson to listen to private messages left for her by Lord Prescott. (c) Numerous similar emails from 2005 to 2006 from the Second Defendant to James Weatherup and between Ian Edmondson and other News of the World journalists (d) About 2,500 emails, copies of which were submitted in early 2007 to Harbottle & Lewis in relation to an employment dispute. These emails showed clear evidence of indirect hacking, breaches of national security and corrupt payments to police officers. These emails were considered in 2007 by Jon Chapman, Head of Legal Affairs, and Daniel Cloke, Head of Human Resources for the First Defendant and/or News International Limited. (e) An email from the Second Defendant to Ross Hindley, a journalist at the News of the World, dated 29 June 2005 at 17:02 which attaches a transcript of intercepted voicemail messages between Gordon Taylor and Jo Armstrong. The text stated “This is the transcript for Neville. I have copied the text in the below email and also attached the file as a word document”. This email refers to Neville Thurlbeck. The First Defendant has admitted, in the evidence before the Leveson Inquiry, that the email was disclosed in the Gordon Taylor litigation in 2008, and that it resulted in the First Defendant resolving the action. (f) The evidence of Clive Goodman in his internal employment appeal in May 2007 whereby he admitted and provided evidence that telephone hacking had been conducted for a number of years openly at the News of the World, was approved by Andy Coulson and Stuart Kuttner and that over the last 2 years of his work at the News of the World all of the stories published by the News of the World were based on telephone hacking. Furthermore, the Claimant relies upon the fact of the admission that Clive Goodman made as suborned in his evidence at the criminal hearing in January 2007 in that he declined in mitigation to admit the widespread nature of telephone interception at the News of the World on the promise of Tom Crone that he would be re-employed. (g) Evidence to the Leveson Inquiry on 13 December 2011 that an additional payment was made by the First Defendant to Mr Goodman of £90,000, made in February 2007, which had been authorised by Les Hinton and a second payment of £153,000, including legal fees, between October and December 2007. It is to be inferred that Ms Brooks and Mr Chapman were aware of this payment at the time of their response to the Select Committee’s request in November 2009, as referred to in paragraph 26.7 above, and that Ms Brooks and Mr Chapman would therefore have known that Mr Goodman had not been paid a single payment consisting of a year’s salary, modest statutory compensation and legal costs as is inferred in Ms Brooks letter. (h) On 13 December 2011, in his evidence before the Leveson Inquiry, Mr Julian Pike, former lawyer for the First Defendant, admitted that from April 2008 he did not believe that the First Defendant’s “rogue reporter” defence was true. From 2008 onwards, the First Defendant had, and was aware that it had, a legal obligation to preserve all relevant evidence because, by 2007, it had had notification of civil claims brought by Gordon Taylor and by 2008 the civil claims brought by Jo Armstrong and John Hewison. In about summer 2009, it also had notification of a legal claim by Max Clifford and in April 2010, July 2010 and September 2010, it had claims by a number of individuals including Skylet Andrew, Andy Gray and Sienna Miller. In spite of this, the First Defendant has caused, allowed and/or permitted substantial, relevant evidence to be destroyed. The Claimant relies on the destruction of evidence by the First Claimant in support of its case that the First Defendant was knowingly misusing victims’ private information (including, it is to be inferred, the Claimant’s private information) by voicemail interception and other unlawful acts set out above. In support of this allegation the Claimant relies upon the following facts and matters: 35.1 All computers used by its journalists, including that of Ian Edmondson, who had been specifically named in the letter before action dated 6 September 2011 in the Sienna Miller action, were destroyed in about October 2010. 35.2 Hundreds of thousands of emails, on nine separate occasions, were deleted. The Claimant relies upon letter of 1 August 2011 from Stuart Benson and Company, Solicitors for HCL, to the Home Affairs Select Committee. 35.3 The active steps taken by the First Defendant to delete emails via the creation of an ‘Email Deletion Policy’. The Claimant will rely, amongst other matters, on the following: (i) The draft framework of the Email Deletion Policy dated November 2009 stated under “Opportunity” that its aim was, amongst other matters, “to eliminate in a consistent manner across NI (subject to compliance with legal and regulatory requirements) emails that could be unhelpful in the context of future litigation in which an NI company is a defendant”. (ii) The Claimant will also rely on emails sent by a senior executive of the First Defendant (identified in paragraph 6 of the Confidential Schedule) in May 2010 enquiring about email deletion and in August and October 2010 relating to the ‘email deletion policy’ at the First Defendant and pressing for such deletions, including: (a) an email dated 12 May 2010 stating “what happens to my emails….with deletion”. (b) an email dated 29 July 2010 stating “How come we still haven’t done the email deletion policy discussed and approved six months ago?”; (c) an email dated 4 August 2010 referring to “email deletion” and stating “everyone needs to know that anything before January 2010 will not be kept”; and (d) an email dated 7 October 2010 stating “how are we doing with the TMS email deletion policy”. This is sent by the senior executive to a legal officer at the First Defendant who forwarded the email to a member of the First Defendant’s IT team saying, “Should I go and see [them] now and get fired – would be a shame for you to go so soon?!!! Do you reckon you can add some telling IT arguments to back up my legal ones”. (iii) The email from an employee in the Technology Department dated 9 September 2010 and sent at 16.50 stating, “If the deletion need to wait until tomorrow, then that is fine. There is a senior NI management requirement to delete this data as quickly as possible but it need to be done within commercial boundaries”. The Claimant will rely, amongst other things, on the fact that this deletion took place after the First Defendant had received the letter before action in the Sienna Miller action which was dated 6 September 2010, which expressly demanded steps be taken to preserve relevant documents. The Claimant relies upon paragraph 83 of the third witness statement of Paul Cheesborough, admitting that all emails on the email archive system up to 31September 2004 were deleted. In January 2011, all emails on the archive system up to 31 September 2007 were deleted. 35.4 The Claimant also relies upon the fact that in July 2011 the senior executive identified at paragraph 1(b) of the Confidential Schedule caused and procured an employee to remove 7 boxes of their own records from the company storage facility. The Claimant relies upon the above matters, set out in paragraphs 34 and 35 in support of her/his case on concealment, spoliation and aggravation of damages.

Remedies

[9]By reason of the above matters, the Claimant has suffered substantial distress as a result of the misuse of her/his private information by the First Defendant, as well as loss and damage, and/or the Defendants have obtained substantial profit. The Claimant is unable to particularise her/his damage further until he has ascertained the full nature and extent of the wrongful acts committed by the Defendants in accordance with paragraph 40 below.[10]Further, in support of his claim for general and/or aggravated damages, including compensation for distress, the Claimant will rely on the following facts and matters:38.1 The gross violation of the Claimant’s entitlement to respect for his private life.38.2 The obviously highly private and confidential nature of the information that was obtained relating to the Claimant’s mobile telephone, his family and – it is to be inferred as a result of voicemail interception – his personal and professional life.38.3 The fact that the Arrangement was carried out secretly with the First Defendant having gone to great lengths to conceal its existence (including the facts and matter set out at paragraphs 34 and 35 above).38.4 The First Defendant’s repeated false public denials of liability for the wrongful accessing of voicemails and delay in admitting its wrongdoing.38.5 The fact that the Arrangement was operated with the approval of those persons identified paragraph 5 of the Confidential Schedule. 38.4 [Further matters relied on in support of damages claim] 38A. Further or alternatively the Claimant will seek to recover damages by reference to the ‘user principle’ taking account of the actual or notional market value of the information obtained and misused by the First Defendant. The Claimant will rely upon the offers that the Defendants made in respect of such information, and the amounts paid, both specifically in relation to any information obtained in relation to the Claimant, and generally, by way of comparators, on examples of payments or offers of payments for private information made by the First Defendant. 39. Further the acts of the First Defendant, in unlawfully obtaining and using the Mobile Telephone Information were calculated by it to make a profit for itself which might well exceed the compensation payable to the Claimant. As a result the Claimant is entitled to and claims exemplary damages against the First Defendant. The Claimant will rely on the matters pleaded above and, in particular on the following:39.1 The fact that the Arrangement was carried out secretly with the First Defendant having gone to great lengths to conceal its existence with the involvement and/or approval of those persons identified in paragraph 5 of the Confidential Schedule, including the facts and matters set out in paragraph 27.3 34 and 35 above.39.2 The fact that the Arrangement was approved by senior editorial staff of the First Defendant.39.3 The Claimant will invite the Court to infer that the First Defendant calculated that the Arrangement would not be discovered and that, as a result, operated the Arrangement having calculated or assumed that it could use the information which was obtained for journalistic purposes without ever paying any compensation to the Victims.39.4 The Claimant will also invite the Court to infer that the First Defendant calculated that, if the Arrangement were to be discovered, the damages which would be payable to the Victims would be insubstantial as compared to the profits to be made from selling newspapers containing stories based on information produced by the Arrangement. 39. 5 Further details cannot be given until after disclosure and/or the provision of further information. 40. In order to enable the Court to assess the full extent of the damage suffered by the Claimant and to grant effective injunctive relief, the Claimant requires an order that the Defendants provides the information as to the full extent of their wrongdoing (“the Wrongdoing Information”):40.1 The identity of each and every employee or agent of the First Defendant who participated in the Arrangement40.2 The identity of each every employee or agent of the First Defendant who obtained and used the Claimant’s Information40.3 The number of occasions on which the Claimant’s voicemail was accessed.40.4 All the Claimant’s Information obtained by the Second Defendant pursuant to the Arrangement, and all the Claimant’s Information obtained by the First Defendant’s journalists, and of the extent to which this information was circulated to and used by the First Defendant’s journalists;40.5 All the Claimant’s Information obtained by the “News of the World” journalists using mobile telephone numbers, pin numbers, direct dial numbers, account numbers and other personal information supplied by the Second Defendant. 41. Unless restrained by this Honourable Court, the Defendants will further access or attempt to access the Claimant’s voicemail messages left for him or by him, and/or from use, publish or cause to be used or published private or confidential information concerning the Claimant as identified as having been obtained by them. 42. The Claimant is entitled to and claims interest pursuant to Section 35A of the Senior Courts Act 1981 and/or pursuant to the Court’s equitable jurisdiction, on the amounts found due to him at such rate and for such period as the Court thinks fit. AND THE CLAIMANT claims As against the First and Second Defendants and each of them:(1) An Injunction to restrain the Defendants, whether by themselves, their servants or agents, or otherwise howsoever from accessing or attempting to access the Claimant’s voicemail messages left for him or by him, and from using, publishing or causing to be used or published all private or confidential information concerning the Claimant as is identified as having been obtained by them.(2) Damages (including aggravated damages), or an inquiry as to damages (together with an Order for payment to the Claimant upon the making of such an inquiry), for breach of confidence and/or misuse of private information, and/or for harassment.(3) Delivery up on oath of all documents (whether in hard copy or electronic form) regarding or concerning the Claimant and/or his mobile telephone numbers, pin numbers and direct dial numbers and all copies in whatever form they may be kept or otherwise held by or on behalf of the Defendants;(4) An order that the Defendants, on oath, provide information as to: (a) The identity of each and every employee or agent of the First Defendant who participated in the Arrangement (b) The identity of each every employee or agent of the First Defendant who obtained and used the Claimant’s Information (c) The number of occasions on which the Claimant’s voicemail was accessed. (d) All the Claimant’s Information obtained by the Second Defendant pursuant to the Arrangement,and all the Claimant’s Information obtained by the First Defendant’s journalists, and of the extent to which the information was circulated to and used by the First Defendant’s journalists; (e) All the Claimant’s Information obtained by the “News of the World” journalists using mobile telephone numbers, pin numbers, direct dial numbers, account numbers and any other personal information supplied by the Second Defendant.(5) A declaration that the obtaining/accessing of the Claimant’s Information as pleaded in the Particulars of Claim constituted a breach of confidence and/or a misuse of private information;(6) Interest on damages or sums found to be due to the Claimant pursuant to Section 35A of the Senior Courts Act 1981, or alternatively pursuant to the Court’s equitable jurisdiction, to be assessed;(7) Further or other relief. As against the First Defendant Exemplary damages. HUGH TOMLINSON QC DAVID SHERBORNE JEREMY REED SARA MANSOORI EDWARD CRAVEN MARK THOMSON Statement of Truth The Claimant believes that the facts stated in this Particulars of Claim are true. .................................... IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION B E T W E E N:- [Name] Claimant - and - (1) NEWSGROUP NEWSPAPERS LIMITED (2) MR MULCAIRE Defendants __________________________________________ DETAILS TO BE ADDED TO GENERIC PARTICULARS OF CLAIM __________________________________________ This claim meets the qualifying criteria set out in the Order dated 20 April 2012 and is a Category [Tbc] Claim. 1. Identity of the Voice Mail Interception Claimant 4. IF APPLICABLE:
“The Claimant used his/her mobile telephone for both personal and professional or business purposes and the information left on the Claimant’s voicemail therefore included commercial information”. 5. The Claimant’s mobile telephone service provider, number and use of voicemail 6. Reasons for targeting the claimant 8A. Other categories of private information relating to the Claimant 23. Date(s) of and reasons for acts complained of 24. Details of unlawful acts complained of 31 IF APPLICABLE: “including commercial information relevant to the Claimant’s business or professional activities”
Publications in the News of the World (if applicable) 27. Publications in the News of the World relied on. Otherwise paragraphs 27 to 32 to be deleted Harassment and/or Surveillance (if applicable) 33. Matters relied on in support of harassment claim /surveillance claim Otherwise paragraphs 33 to 33A to be deleted Remedies 36. Distress and damage suffered by the Claimant 37. Particulars of general and aggravated damages 38. [IF APPLICABLE]:
“Further or alternatively the Claimant will seek to recover damages by reference to the ‘user principle’ taking account of the actual or notional market value of the information obtained and misused by the First Defendant. The Claimant will rely upon the offers that the Defendants made in respect of such information, and the amounts paid, both specifically in relation to any information obtained in relation to the Claimant, and generally, by way of comparators, on examples of payments or offers of payments for private information made by the First Defendant.” 11. Provision of information about full extent of Defendants’ wrongdoing 12. Injunction 13. Interest Prayer for Relief Appendix 2 - Brazier Claimant-Specific Particulars of Claim (without Confidential Schedules) 14. IN THE HIGH COURT OF JUSTICE Case No HC12C100607 CHANCERY DIVISION B E T W E E N: JEFF BRAZIER Claimant - and - NEWSGROUP NEWSPAPERS LIMITED Defendant AMENDED CLAIMANT SPECIFIC ALLEGATIONS SUPPLEMENTAL TO THE RE-AMENDED GENERIC PARTICULARS OF CLAIM This claim meets the qualifying criteria set out in the Order dated 20 April 2012 and is a Category C 3 claim. The PartiesClaimant 2. The Claimant is a television presenter and reality TV star, who formerly played professional football. The Claimant’s Mobile Telephone 4. The Claimant used his mobile telephone for both personal and professional or business purposes and the information left on the Claimant’s voicemail therefore included commercial information. 5. 1 At the relevant time, the Claimant had a mobile telephone with T-Mobile, number ***** ***828 (“the Claimant’s Mobile Number”) and used his voicemail extensively for personal and professional purposes. 5.2 The Claimant did not use a personal pin to access his voicemail messages. Accordingly his voicemail could have been accessed using the generic pin for T-Mobile (which the Claimant remembers as being “1210”) and/or by calling “0044062” following by his mobile number without the first “0”
. In support of this, the Claimant will rely on the MPS disclosure in the case of CER v NGN which is dated 7 February 2006 and shows Mr Mulcaire noting this generic T-Mobile voicemail access number and a call being made to that same telephone number. 5.3 The Claimant remembers accessing his voicemail messages and finding “old messages” that he had never listened to. Reasons for Targeting the Claimant 6. The Claimant was targeted by the Defendant because of interest in him and his on/off relationship with Jade Goody who was considered to be particularly newsworthy by the Defendant’s newspapers. The Claimant was concerned about the security of his mobile phone from around 2002 until 2006 because he could not understand how private information about him was appearing in the media during this time. Unlawful Acts in Relation to the Claimant Pursuant to the Arrangement 23. The Defendant and Glenn Mulcaire targeted the Claimant pursuant to the Arrangement from about 2002 onwards. Mr Mulcaire had set up a “Project Name” relating to the Claimant and a “Project Name” relating to Ms Goody. ‘Project names’ were victims who were long-term targets and/or were considered by the Defendant and Mr Mulcaire to be particularly important sources of information. The name of Journalist A appears in Mr Mulcaire’s notes, indicating that he instructed Mr Mulcaire to intercept the Claimant’s voicemail messages. 24. As a result of its unlawful acts, the Defendant obtained private and confidential information relating to the Claimant (“the Claimant’s Information”). The acts of obtaining, processing, holding, using and/or disclosing this information constituted a breach of confidence and/or a misuse of the Claimant’s private information and/or an unlawful processing of the Claimant’s personal and/or sensitive personal data pursuant to the Data Protection Act 1998. The best particulars which the Claimant can give prior to full disclosure by the Defendant and/or third parties and the provision of Further Information are as follows: 24.1 The Claimant’s name, his address in 2002-2006 and the Claimant’s Mobile Number. 24.2 The name of the Claimant’s friend, Gordon Taylor, with a line to the words “voicemail/text”. The Defendant and Mr Mulcaire accessed the voicemails of Gordon Taylor from a date unknown until about 2006 and the Defendant has paid Mr Taylor substantial damages in compensation. It is to be inferred that Mr Mulcaire and/or journalists working for the Defendant have accessed the voicemails left by the Claimant on the voicemail messaging service of Mr Taylor and/or voicemails left by Mr Taylor on the voicemail messaging service of the Claimant. 24.3 Information concerning an interview which the Claimant gave. One of the dates in the corner of the notes is 06/05/2004. The significance of this date is set out in paragraph 5 of Confidential Schedule B. 24.4 On or before 26 May 2006, a journalist at the News of the World, whose name is set out in the Confidential Schedule to the Re-Amended Generic Particulars of Claim employed by the Defendant, acquired the Claimant’s mobile phone number and recorded it in his palm pilot along with the Claimant’s date of birth and also Jade Goody’s date of birth, as is recorded in Mr Mulcaire’s notes. This journalist also acquired numerous other mobile telephone numbers of individuals who the Defendant has admitted were targeted pursuant to the Arrangement, including, Ben Jackson, Sienna Miller, Steve Coogan, Jude Law, Kelly Hoppen, Sky Andrew, Paul Gascoigne, David Davies, Max Clifford and George Galloway, as well as the numbers of individuals, who are currently bringing claims for voicemail interception, including, Jermaine Jenas, James Blount, Lucy Benjamin, and Paul Stretford. It is to be inferred that the contact list of Mr Mulcaire was disseminated to journalists at the News of the World including this journalist. The Claimant relies on the information set out in Confidential Schedule A in support of this.This journalist also recorded two addresses connected to the Claimant in his palm pilot (see paragraphs 2 and 3 of Confidential Schedule A). 24.5 It is inferred that the Defendant and/or Mr Mulcaire was targeting the Claimant consistently from some time in 2002 including by intercepting voicemail messages left on his mobile telephone. The Claimant will rely on, amongst other matters,: (i) the fact and matters set out in paragraphs 5.2 and 5.3 above; (ii) the fact that the Claimant’s voicemail messages would have been a valuable source of information about Jade Goody and his relationship with her; and (iii) The facts and matters set out in paragraph 21.5 and 21B of the Re-Amended Generic Particulars of Claim. 24.6 It is to be inferred that Mr Mulcaire and/or journalists working for the Defendant also accessed the voicemails left by the Claimant on the voicemail messaging service of Ms Goody and/or left by Ms Goody on the voicemail messaging service of the Claimant. Ms Goody had a number of mobile telephones, often provided by PR firms, which the Claimant believes were generally with 02. To the best of the Claimant’s knowledge, Ms Goody did not have a pin number set up on her mobile telephone voicemail service and therefore her voicemails would have been vulnerable to interception by the Defendant. 24.7 It is further to be inferred that, as a result of targeting the Claimant, the Defendant obtained access to numerous other voicemail messages to and from the Claimant including personal messages left by and for his friends and family. This included the following information: (a) The fact that the Claimant had telephoned and left voicemail messages for particular individuals; (b) The time, date and duration of those voicemail messages; (c) The contents of those voicemail messages which would have included personal messages; (d) The fact that particular individuals had left voicemail messages for the Claimant; (e) The time, date and duration of those voicemail messages and the caller’s telephone number; (f) The contents of those voicemail messages; (g) The names and telephone number of the individuals with whom the Claimant communicated by mobile telephone. Publications 27.1 At all relevant times, the Defendant published in the News of the World, on its website and on databases, a series of articles concerning the Claimant (the “Articles”) as set out in the Confidential Publications Schedule B. The Articles continued to be published online at www.newsoftheworld.com until about 2010 and remain readily available through popular press cuttings databases such as Factiva.com and Lexis Nexis. 27.2 The Claimant relies on paragraphs 28 to 32 of the Re-Amended Generic Particulars of Claim. For the purposes of paragraph 31 the publication of the Articles was wrongful and constituted a breach of confidence, unjustified infringements of the Claimant’s right to privacy and misuse of his private information. 27.3 For the avoidance of doubt the Claimant relies on the publication of the Articles as giving rise to additional damage and distress resulting from the unlawful activities of the Defendant under the Arrangement and on the continuing publication of the Articles from 11 September 2006 as giving rise to separate causes of action for misuse of private information. Unlawful Surveillance/Harassment 33.1 The Defendant has pursued a deliberate course of conduct by placing the Claimant under surveillance (although seeking to conceal the same from him) by seeking to obtain the Claimant’s Mobile Telephone Information over a sustained period of time from 2002-2006 and then publishing intrusive articles as set out in Confidential Schedule B. In support of this contention, the Claimant will also rely on the statement made by Clive Goodman in a letter dated 5 May 2007 to Daniel Cloke that “there hadn’t been a single Newsdesk run story in the paper in the past two years that hadn’t relied on [Journalist B] either accessing voicemail or some other confidential communication”. The two-year period to which Clive Goodman was referring was 2004 to 2006. 33.2 The publication of each article caused the Claimant alarm and distress at the time when it was published and each time subsequently that he saw or heard about it.As the Defendant knew or ought to have known such conduct amounted to harassment of the Claimant and a gross violation of the Claimant’s entitlement to respect for his private life. The Defendant’s conduct as aforesaid has caused the Claimant extreme concern and damaged his relationships when he could not understand the source of the information being published in the News of the World. 35A. By way of further aggravation and/or in further support of his claims for damages, the Claimant also relies on the fact that the Defendant has consistently sought to cover up its unlawful activities with the knowledge and approval of senior executives, including but not limited to the following: (a) From around May 2010, the Defendant has procured the removal of News of the World articles from publicly available news databases and its website thereby preventing victims from checking whether articles emanated from the Defendant’s unlawful activities; (b) The Defendant’s policy of deleting data/evidence was planned from about 2009 and initiated in 2010 in order to avoid embarrassing disclosures in future civil litigation. The email deletion plan was put into effect immediately after the Sienna Miller letter of claim dated 6 September 2010, when on the instructions of senior News International executives, the Defendant deleted millions of emails (which pre-dated 2005). On 15 January 2011, the Defendant caused and procured millions of emails (from 2005 onwards to January 2010) to be deleted, which was the day after the DPP announced he was conducting a comprehensive assessment into the voicemail interception activities of the Defendant. (c) Furthermore, the Claimant relies upon the fact that the Defendant continues to cover up the wrongful activities of its senior executives. Despite the recent admission by Mr Rupert Murdoch at the Leveson Inquiry on 26 April 2012, that there was a cover-up at the News of the World, his attempt to blame Tom Crone and Colin Myler is, in effect, a further attempt to cover up the activities of other senior executives. (d) The Claimant also relies upon the further details set out in Confidential Schedule C. Remedies 37. By reason of the above matters, the Claimant has suffered substantial distress as a result of the misuse of his private information by the Defendant, as well as loss and damage, and the Defendant has obtained substantial profit. The Claimant is unable to particularise his damage further until he has ascertained the full nature and extent of the wrongful acts committed by the Defendant in accordance with paragraph 40 below. 38. Further, in support of his claim for general and/or aggravated damages, including compensation for distress, the Claimant will rely on the following facts and matters as causing or contributing to his hurt, upset and distress: 38.1 The gross violation of the Claimant’s entitlement to respect for his private life. 38.2 The Claimant was very upset to find out from the police that he had been targeted by the Defendant. Although he had suspected that he and Ms Goody had been targeted, he was angry and upset to have this suspicion confirmed. 38.3 The Claimant’s distress was further heightened by the fact that the appearance of private information in the Defendant’s newspapers was a source of friction between him and Ms Goody. They had a number of arguments during their relationship when he and Ms Goody had accused each other of leaking information to the press. The Claimant is particularly distressed because he can now never apologise to Ms Goody for the times that he had not believed her when she had vehemently denied that she was the source of private information. 38.4 The Claimant and Ms Goody had a tempestuous relationship, which was partly caused by them being young parents and also by them being exposed to constant media pressure. The Claimant and Ms Goody would often have arguments where they would put the phone down on each other and then leave lengthy voicemail messages on each others’ voicemail services, which would have contained private information. The Claimant finds it particularly distressing that Glenn Mulcaire and the Defendant’s journalists did or could listen to these messages. 38.5 The Claimant is very angry that an additional strain was placed on his relationship with Ms Goody by the fact the Defendant was unlawfully obtaining information about them, which caused them to accuse each other of sharing private information that they had not put in the public domain. 38.6 The Claimant and Ms Goody also suspected one of their friends, Person A, who they had both been close to and who they had both confided in (see paragraph 4 of Confidential Schedule A). The Claimant is very distressed about the fact he had suspected individuals, such as Person A, who had done nothing wrong. 38.7 The Claimant remembers attending the christening of the child of Person A and that a number of photographers had turned up to photograph him and Ms Goody. Person A had been very angry about this and he had not believed the Claimant and Ms Goody when they had denied that they had told photographers about the event. It is to be inferred that the photographers found out about the event through the interception of the Claimant’s and/or Ms Goody’s voicemail messages. The Claimant is very upset about this as the incident was very damaging to the Claimant’s friendship with Person A and the Claimant could not understand at the time how the photographers had known how to find them. 38.8 The Claimant is angry that he is never going to know for certain what information was obtained unlawfully by the Defendant because of the conduct of the Defendant in destroying evidence. The Claimant is particularly shocked that individuals in senior positions at the Defendant approved the deletion of emails, which has left hundreds of victims without any answers. 38.9 The Claimant’s children are starting to ask questions about the Claimant’s relationship with their mother and the Claimant is angry that he cannot now get to the bottom of what went on so that he can give them a fair account of his and Ms Goody’s relationship. 38.10 The Claimant is upset by the Defendant’s bullying and obstructive approach to the litigation, especially as the Defendant is a huge company with enormous resources. 38.11 The Claimant is upset by the failure of the Defendant to offer him a personal apology. 39. Further or alternatively the Claimant will, if appropriate, seek to recover damages by reference to the ‘user principle’ taking account of the actual or notional market value of the information obtained and misused by the Defendant. The Claimant will rely upon the offers that the Defendant made in respect of such information, and the amounts paid, both specifically in relation to any information obtained in relation to the Claimant, and generally, by way of comparators, on examples of payments or offers of payments for private information made by the Defendant. 40. In order to enable the Court to assess the full extent of the damage suffered by the Claimant and to grant effective injunctive relief, the Claimant requires an order that the Defendant provides the information as to the full extent of their wrongdoing (“the Wrongdoing Information”): 40.1 The identity of each and every employee or agent of the Defendant who participated in the Arrangement. 40.2 The identity of each and every employee or agent of the Defendant who obtained and used the Claimant’s Information. 40.3 The number of occasions on which the Claimant’s voicemail was accessed. 40.4 All the Claimant’s Information obtained by Glenn Mulcaire pursuant to the Arrangement, and all the Claimant’s Information obtained by the Defendant’s journalists, and the extent to which this information was circulated to and used by the Defendant’s journalists. 40.5 All the Claimant’s Information obtained by the Defendant’s journalists using mobile telephone numbers, pin numbers, direct dial numbers, account numbers and other personal information supplied by Glenn Mulcaire, and all the Defendant’s uses of the Claimant’s information. 41. Unless restrained by this Honourable Court, the Defendant will further access or attempt to access the Claimant’s voicemail messages left for him or by him, and/or from use, publish or cause to be used or published private or confidential information concerning the Claimant as identified as having been obtained by them. 42. The Claimant is entitled to and claims interest pursuant to Section 35A of the Senior Courts Act 1981 and/or pursuant to the Court’s equitable jurisdiction, on the amounts found due to him at such rate and for such period as the Court thinks fit. AND THE CLAIMANT claims (8) An Injunction to restrain the Defendant, whether by itself, its servants or agents, or otherwise howsoever from accessing or attempting to access the Claimant’s voicemail messages left for him or by him, and from using, publishing or causing to be used or published all private or confidential information concerning the Claimant as is identified as having been obtained by them. (9) Damages (including aggravated damages), or an inquiry as to damages (together with an Order for payment to the Claimant upon the making of such an inquiry), for breach of confidence and/or misuse of private information, and/or for harassment. (10) Delivery up on oath of all documents (whether in hard copy or electronic form) regarding or concerning the Claimant and/or his mobile telephone numbers, pin numbers and direct dial numbers and all copies in whatever form they may be kept or otherwise held by or on behalf of the Defendant; (11) An order that the Defendant, on oath, provides information as to: (a) The identity of each and every employee or agent of the Defendant who participated in the Arrangement; (b) The identity of each and every employee or agent of the Defendant who obtained and used the Claimant’s Information; (c) The number of occasions on which the Claimant’s voicemail was accessed; (d) All the Claimant’s Information obtained by Glenn Mulcaire pursuant to the Arrangement, and all the Claimant’s Information obtained by the Defendant’s journalists, and of the extent to which the information was circulated to and used by the Defendant’s journalists; (e) All the Claimant’s Information obtained by the “News of the World” journalists using mobile telephone numbers, pin numbers, direct dial numbers, account numbers and any other personal information supplied by Glenn Mulcaire, and all the Defendant’s uses of the claimant’s information. (12) A declaration that the obtaining/accessing of the Claimant’s Information as pleaded in the Particulars of Claim constituted a breach of confidence and/or a misuse of private information; (13) Interest on damages or sums found to be due to the Claimant pursuant to Section 35A of the Senior Courts Act 1981, or alternatively pursuant to the Court’s equitable jurisdiction, to be assessed; (14) Further or other relief. HUGH TOMLINSON QC SARA MANSOORI MARK THOMSON HUGH TOMLINSON QC SARA MANSOORI MARK THOMSON STATEMENT OF TRUTH The Claimant believes that the facts stated in these Amended Particulars of Claim are true. I am duly authorised by the Claimant to sign this statement. ............................................................. Nicola McCann, Solicitor at Atkins Thomson Re-Served this 8th day of November 2012 by Atkins Thomson, 41 Maiden Lane, London WC2E 7LJ, Served this 3rd day of July 2012 by Atkins Thomson, 41 Maiden Lane, London WC2E 7LJ, Appendix 3 - Leslie Claimant-specific Particulars of Claim (without Confidential Schedules) CLAIM NO. HC12A03643 IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION B E T W E E N:- JOHN LESLIE Claimant - and - (1) NEWSGROUP NEWSPAPERS LIMITED (2) GLENN MICHAEL MULCAIRE Defendants __________________________________________ DETAILS TO BE ADDED TO GENERIC PARTICULARS OF CLAIM __________________________________________ For the purpose of the Claimant’s Cost Budgets, this claim is a basic claim with 1 additional element (publication). This document is to be read in conjunction with the Revised Generic Particulars of Claim served on 20th July 2012, and upon such further versions of the Generic Particulars of Claim as may be revised or amended from time to time. The Claimant will rely upon allegations made by other Claimants on the Group Register that are of common relevance. 2. The Claimant (“Mr Leslie”) was a television presenter known professionally as John Leslie and most famous for his involvement in the television programmes “Blue Peter” from 1989 until 2004 and “This Morning” from 2001 until 2002. a. From around 1998 Mr Leslie had a mobile phone with telephone number ***** ***007. During the relevant period, that mobile phone used an account on the Vodafone network. b. Mr Leslie did not use a customised PIN for remote access to his mobile phone voicemails. c. During the relevant period, Mr Leslie was a television presenter working on the Granada Television programme “This Morning”. He used his mobile phone both for personal and professional matters. As such, Mr Leslie left voicemail messages for and received voicemail messages from his colleagues, other persons involved in his professional life, friends and family, and others who needed to leave messages for him and for whom he left messages including, in particular, messages that were commercially confidential and messages that were both confidential and subject to legal privilege. d. Mr Leslie tended to receive in the region of 10 voicemail messages per day. a. The subject matter of voicemail messages left for and by Mr Leslie included: private and confidential matters concerning his personal life, private and confidential matters concerning his professional life, including confidential commercial information, and private and confidential matters that were also the subject of legal privilege. 8. Mr Leslie was targeted by the News of the World because of his high profile occupation as a television presenter; in connection with an allegation made by Ulrika Jonsson, that she had been raped by a television presenter, and a suggestion made by Matthew Wright on the television programme “The Wright Stuff” on 23 October 2003 that Mr Leslie was the person responsible for that alleged rape; in connection with a story that was published in the News of the World on 27 October 2002 alleging that Mr Leslie had used cocaine; and/or in relation to further stories about Mr Leslie published in the News of the World. 24. The Defendants targeted Mr Leslie pursuant to the arrangement on various dates beginning at the latest in or around October 2003. The Defendants intercepted mobile phone voicemail messages left for and by Mr Leslie, and/or obtained details of call data relating to Mr Leslie by deception and/or from the voicemail envelope associated with voicemail messages that the Second Defendant intercepted. a. In or around October 2002, upon the instructions of Journalist C from the News of the World (as identified in the Revised Generic Particulars of Claim) Mr Mulcaire made notes (on the document given the identifying code SDA/72 - p1 by the Metropolitan Police) that recorded Mr Leslie’s name and information identified in the confidential schedule hereto. Pending further information, it is inferred that these notes indicate interception of voicemail messages left for or by Mr Leslie and/or further obtaining of call data from relating to Mr Leslie’s phone account by deception. b. In or around October 2003, Journalist A from the News of the World (as identified in the Revised Generic Particulars of Claim) instructed Mr Mulcaire to intercept Mr Leslie’s voicemail messages, to access his mobile phone account, and to discover details of his whereabouts. Mr Mulcaire duly did so, and intercepted voicemail messages left for and by Mr Leslie and/or obtained call data relating to Mr Leslie’s by deception. c. Pursuant to the aforesaid request from Journalist A and/or from Journalist C, Mr Mulcaire on or around 23 October 2003 made notes recording a list of telephone numbers associated with Mr Leslie. Those telephone numbers are set out in the confidential schedule hereto: d. Also included in the confidential schedule hereto are the identities of the some of the people to whom those numbers relate. It is inferred that every number in the list was called by Mr Leslie on 23 October 2003. Mr Mulcaire can only have obtained that list of telephone numbers through unlawful means. Pending further information, it is inferred that he did so by intercepting Mr Leslie’s voicemail messages and/or by obtaining call data from Mr Leslie’s phone account by deception. e. Further pursuant to the aforesaid request from Journalist A, Mr Mulcaire on or around 24 October 2003 noted Mr Leslie’s name, and an address of 41 Paradise Walk, SW3 4JL at which Mr Leslie was currently staying. Mr Mulcaire also made further notes including, in particular, the following:
“(1) Check address – owner/relative”; “(2) Do both mobiles”
. Pending further information, it is inferred that the instruction to “Do both mobiles” was an instruction to Mr Mulcaire to gather all information from Mr Leslie’s mobile telephone and in relation to Mr Leslie’s mobile telephone account to which he could obtain access, and to seek information about Mr Leslie from another person’s voicemail and mobile telephone account. Pending further information, it is inferred that, pursuant to that instruction, Mr Mulcaire intercepted voicemail messages left for and by Mr Leslie and/or obtained call data from Mr Leslie’s phone account and about Mr Leslie from another person’s phone account by deception. f. The Claimant has requested disclosure of further pages of Mr Mulcaire’s notes which relate to him from the Metropolitan Police. At the time of filing these details to be added to the Generic Particulars of Claim, that disclosure has not been received. The Claimant will rely on any further details of the unlawful activities conducted by the defendants pursuant to the arrangement that are revealed by those further pages of Mr Mulcaire’s notes. g. The Claimant does not know the precise contents of the voicemail messages that Mr Mulcaire intercepted pursuant to the arrangement, but pending disclosure and/or the provision of further information it is to be inferred that the messages contained confidential personal information, confidential commercial information, and legally privileged information in each case reflecting the ordinary range of messages left around that time on the Claimant’s voicemail. h. Pending further information, the Claimant infers that at least the publications identified in part A of the Confidential Publications Schedule contained information, identified in part B of the Confidential Publications Schedule, that was unlawfully obtained pursuant to the arrangement. Harassment (if applicable) 33. n/a Remedies 41. By reason of the above matters, the Claimant has suffered substantial distress as a result of the misuse of his private information and confidential information by the Defendants, as well as loss and damage, and/or the First Defendant has obtained substantial profit as a result of that misuse. The Claimant is unable to particularise his damage further until he has ascertained the full nature and extent of the wrongful acts committed by the Defendant in accordance with paragraph 39 below. 42. Further, in support of his claim for general and/or aggravated damages, including compensation for distress, the Claimant will rely on the following facts and matters as causing or contributing to their hurt, upset and distress: 42.1 The gross violation of the Claimant’s entitlement to respect for his private life. 42.2 The obviously highly private and confidential nature of the information that was obtained relating to the Claimant’s mobile telephone and – it is to be inferred as a result of voicemail interception – his personal, family and professional life. 42.3 The gross violation of the Claimant’s legally privileged communications with his then solicitor. 42.4 Mr Leslie had always taken steps to maintain the privacy of his personal communications, for example by having an ex-directory home telephone number, by using the most stringent security settings on the account he has on Facebook, and by avoiding the use of the name he is professionally known by to identify that account (it uses the name John Stott). 42.5 The unlawful acts directed at Mr Leslie were undertaken at a time of great turmoil in his life, shortly after he had been falsely identified as a rapist and had, as a result, ceased his work on “This Morning”. These rape allegations signalled the start of real problems for Mr Leslie’s career as a television presenter. Further revelations in the News of the World then led to greater damage to his career. The discovery that his voicemail had been hacked left him shocked and upset. The knowledge that this voicemail hacking took place at the exact time that these real problems for Mr Leslie’s career began has confirmed his belief that he was targeted and victimised by the News of the World. This has been particularly upsetting and distressing for him. 42.6 As a consequence of the appearance of Mr Leslie’s private information in the News of the World, Mr Leslie became very suspicious of his friends, and was concerned that they were responsible for information being known to the press. 42.7 Mr Leslie was also suspicious that the contents of his rubbish bins were being examined. Now that he has found out about the phone hacking, he believes these were the actions of News of the World. 42.8 When Mr Leslie learned that the Defendants’ unlawful activities had been approved at an editorial level at the News of the World, it showed him that all those involved in the News of the World were prepared to get stories at all costs, with no concern that they might ruin other’s lives. He finds this sickening. 43. Further or alternatively the Claimant will seek to recover damages by reference to the ‘user principle’ taking account of the actual or notional market value of the information obtained and misused by the First Defendant. The Claimant will rely upon the offers that the Defendants made in respect of such information, and the amounts paid, both specifically in relation to any information obtained in relation to the Claimant, and generally, by way of comparators, on examples of payments or offers of payments for private information made by the First Defendant. 44. Mr Leslie has not yet ascertained the full extent of the information that was unlawfully obtained by the Defendants or the uses made thereof, but will seek to ascertain the same and obtain relief in respect of the same. In order to enable the Court to assess the full extent of the damage suffered by the Claimant, and in order to allow the Claimant to ascertain the misuses of his private information as a self-standing remedy pursuant to his Article 8 rights, the Claimant requires an order that the Defendants provide information as to the full extent of their wrongdoing, including: 44.1 The identity of each and every employee or agent of the First Defendant who intercepted the Claimant’s voicemail messages. 44.2 The identity of each and every employee or agent of the First Defendant who obtained and used information obtained from the Claimant’s voicemail messages. 44.3 The number of occasions on which the Claimant’s voicemail was intercepted. 44.4 All the information obtained from the Claimant’s voicemail messages, the extent to which this information was circulated and used by the First Defendant’s journalists, and all the uses made thereof. 45. The Claimant is entitled to and claims interest pursuant to Section 35A of the Senior Courts Act 1981 and/or pursuant to the Court’s equitable jurisdiction, on the amounts found due to him at such rate and for such period as the Court thinks fit. AND THE CLAIMANT CLAIMS: 1) Damages (including aggravated damages), or an inquiry as to damages (together with an Order for payment to the Claimant upon the making of such an inquiry), for breach of confidence and/or misuse of private information. 2) Delivery up on oath of all documents (whether in hard copy or electronic form) regarding or concerning the Claimant or his friends and family (which has been obtained from the Claimant’s voicemail messages) and/or his mobile telephone numbers, pin numbers and direct dial numbers and all copies in whatever form they may be kept or otherwise held by or on behalf of the Defendants or either of them; 3) An order that the First Defendant, on oath, provide information as to: a. The identity of each and every employee or agent of the First Defendant who intercepted the Claimant’s voicemail messages. b. The identity of each and every employee or agent of the First Defendant who obtained and used information obtained from the Claimant’s voicemail messages. c. The number of occasions on which the Claimant’s voicemail was intercepted. d. All the information obtained from the Claimant’s voicemail messages, the extent to which this information was circulated and used by the First Defendant’s journalists, and all the uses made thereof. 4) A declaration that the obtaining/accessing of the Claimant’s Information as pleaded in the Particulars of Claim constituted a breach of confidence and/or a misuse of private information; 5) Interest on damages or sums found to be due to the Claimant pursuant to Section 35A of the Senior Courts Act 1981, or alternatively pursuant to the Court’s equitable jurisdiction, to be assessed; 6) Costs, including interest on costs. 7) Further or other relief. THOMAS ST QUINTIN Statement of Truth I believe that the facts stated in these Particulars of Claim are true. Signed ……………………… John Leslie Dated ………………………. Served this day of November 2012

Cited in 4 later judgments