Gulati & Ors v MGN Limited, Court of Appeal - Chancery Division, May 21, 2015, [2015] EWHC 1482 (Ch)

Resolution Date:May 21, 2015
Issuing Organization:Chancery Division
Actores:Gulati & Ors v MGN Limited
 
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MR JUSTICE MANN Gulati and others v MGN

Approved Judgment - redacted

Neutral Citation Number: [2015] EWHC 1482 (Ch)

Case No: See page 2

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Royal Courts of Justice

Rolls Building, 7 Rolls Buildings

London EC4A 1NL

Date: 21/05/2015

Before :

MR JUSTICE MANN

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Between :

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Mr David Sherborne and Mr Jeremy Reed (instructed by Atkins Thomson as lead solicitors) for the Claimants

Mr Matthew Nicklin QC and Ms Alexandra Marzec (instructed by RPC LLP) for the Defendant

Hearing dates: 2nd-6th March, 9th-13th March, 19th March , and 24th-25th March 2015

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APPROVED REDACTED JUDGMENT

IMPORTANT NOTE - THE UNREDACTED JUDGMENT ON WHICH THIS IS BASED IS SUBJECT TO REPORTING RESTRICTIONS UNDER AN ORDER OF MR JUSTICE MANN DATED 21ST MAY 2015. THIS JUDGMENT IS A PUBLICLY AVAILABLE VERSION OF THAT UNREDACTED JUDGMENT PUBLICATION OF THIS FORM OF JUDGMENT DOES NOT OF ITSELF INFRINGE THOSE REPORTING RESTRICTIONS

Case Nos:

Alcorn - HC14E07267

Ashworth - HC14 F03184

Frost - HC14F03189

Gascoigne - HC14F03143

Gulati - HC - 2012 000102

Roche - HC14F01927

Taggart - HC14B01234

Yentob - HC14B01645

Table of Contents

Mr Justice Mann :

I - INTRODUCTORY

Introduction

  1. This is a claim based fundamentally on infringements of privacy rights. The defendant is the proprietor of three newspapers - the Daily Mirror, the Sunday Mirror and The People. The claimants are persons in the public eye such as actors, sportsmen, or people with an association with such people. In one case (Mr Yentob) he held important posts in the BBC. In all cases the infringements of privacy rights were founded in what has become known as phone hacking, though there are also claims that confidential or private information was also obtained in other ways (principally from private investigators). In all cases except Mr Yentob's there is also a claim that infringements of privacy rights led to the publication of articles in the various newspapers just described, which articles were themselves said to be an invasion of privacy rights and which would not have been published but for the earlier invasions which provided material for them.

  2. In the events which have happened these proceedings are now, in essence, an assessment of damages, since liability is in all cases conceded save that it is not conceded that a handful of articles were published as a result of phone hacking. The present 8 cases are brought before the court as part of managed litigation, in which a large number of similar claims have been brought. Other claims have been, or are to be, taken up to but not including disclosure but then stayed pending the outcome of these proceedings. Several prior cases have been settled. The professed aim of this trial is to ascertain the damages payable so that the damages can be fixed in these cases and some guidance given as to the damages payable in other cases.

  3. Although this trial is described as a trial to fix quantum, there is an important sense in which liability still remains to be determined. Although the defendant has admitted that there were illicit hacking activities conducted against all the claimants in these cases, and it is admitted that most of the articles were their product, the extent of those activities is not admitted. This is not a trial in which the only hacking activities that matter are those which resulted in published articles. The claims are also based on hacking which did not result in articles (of which, on any footing, there was a substantial amount). It is necessary to reach conclusions on the level and intensity of that hacking in order to determine that aspect of the claims. The defendant's concessions on liability do not enable one to make that assessment.

  4. As well as a difference between the parties as to the level of hacking that went on, what underlies the difference between the parties on quantum is a fundamental disagreement as to what it is that compensation can and should be paid for. The defendant says that what the claimants are entitled to is damages for distress, and nothing more. That is said to provide a lower limit to the sums properly claimable and is also said to justify the methodology of computation adopted by the defendant, which is very different to the claimants'. It is not necessary to identify those differences at this point in the judgment but their stark effect can be seen from comparing the range of damages which the defendant's analysis would allow with the figures claimed by the claimants before any element of aggravation is added. The defendants' figures range from c£10,000 (Mr Yentob) to c£40,000 (Mr Gascoigne). The claimants' lowest figure claimed for damages is Miss Alcorn, whose claim is valued at £168,000, and the highest is Miss Frost's, which is £529,000. The claimants also claim an additional element of 100% of their respective damages by way of aggravated damages. The parties are therefore a very long way apart.

  5. The claimants in this case were all represented by Mr Sherborne and Mr Reed. The defendant was represented by Mr Nicklin QC and Miss Marzec.

    What phone hacking is

  6. Although the colloquial expression ``phone hacking'' has for some time been used to describe the activities which lie at the heart of this case, (and I shall continue to use it) a more accurate description would be ``mobile voice-message interception''. It does not involve listening in to actual two-way phone conversations. It works in the following way.

  7. A mobile telephone account comes with a voicemail box in which the account holder can receive, and listen to, voice messages left by callers when he or she does not answer the phone. The messages can be retrieved from the phone itself, or by ringing in from an outside line. The mailbox can be protected from an unauthorised person ringing and listening to voicemail messages by a PIN code. At the time of the events covered by this action some of the mobile phone companies had default PIN codes, and many users did not bother to change them (if indeed they knew that they existed). Other users changed the PIN codes but used codes that were predictable - perhaps consecutive numbers, or years of their birth or of others close to them. An unauthorised person who knew or could guess those PIN codes could use them to access another's voicemail account.

  8. There were two ways in which an unauthorised person could access another's voicemail box. The trick is to get through to the voicemail system, and not the owner of the phone in person. If the owner answered the phone the hacker would not be in the voicemail system. So, unless one knows that the owner will not pick up (so that the call goes through to voicemail after a number of unanswered rings) one has to ring when one knows the phone line is in use so that the call goes through to voicemail. The first hacking technique produces this effect. It involves the use of two phones simultaneously. The technique was described by Mr Evans, one of the witnesses. The first phone was used to ring the telephone number of the victim. He would count to three and then use the second phone to dial the same number. Because a call was already being made the second phone was likely to go to the caller's voicemail box. Phone 1 was immediately disconnected, usually without actually ringing the receiving phone so as to alert the owner of the phone, so the owner would often not know that an attempt had been made to ring his or her phone. At that point the unauthorised caller could concentrate on the second phone, and the voicemail box. Once the voicemail system had responded the hacker could behave like the owner, and press keys which allowed the entry of a PIN, which in turn allowed access to the messages that had been left there. This, of course, required knowledge of the PIN, but because so many people never changed their PIN number from the default number provided by the network, or used a predictable number which could be accurately guessed by the hacker, their phone accounts were vulnerable to this activity. This technique was given the slang term ``double tapping''.

  9. The other access route applied only to the Orange network. This network provided a separate number which would be dialled into from any phone in order to get voicemail messages. The dialler would have to identify the phone number whose messages were being recalled, and then enter the PIN. This route in was available to anyone who knew the number of the phone in question and could ascertain or guess the PIN. The voicemail messages could then be accessed.

  10. This activity proved to be a very useful source of information for the newspapers involved in this case. Once into a user's voice mailbox, a journalist could listen to messages left there and often find out the numbers of the people who left them. The content of the message might itself be of significance, as might the identity of the person who left it. Furthermore, the number of the person who left it could also be ascertained, and if it was a mobile number an attempt could be made to hack into that user's voicemail as well. In that way a pattern of sources of information could be built up. Mr Evans, the principal witness about the actual hacking activities in the case, described this extended activity as ``farming''.

  11. Further details of how all this operated in the present case will appear below.

    The general nature of the claims made and the generic evidential case

  12. All of the claimants in this litigation, except Mr Yentob, make claims which are similar in their nature, though their particular details vary. They all claim that MGN journalists hacked their phones as described above so as to listen to voice messages left by others. Those journalists also listened to the voicemail messages left by the claimants on the phones of others. In that way the journalists became privy to private information about the personal affairs of the claimants, and were able to write stories and publish photographs that the newspapers would not otherwise have been able to publish, either because they did not have the information absent the voicemail messages, or because messages enabled information obtained from elsewhere to be filled in, or stories to be ``stood up'' (corroborated) by phone messages. In addition, most of them claim that private information was obtained from private investigators employed by the newspapers to find out that information. Mr Evans gave evidence about this, and his unchallenged evidence was that among the information that private investigators were charged with finding were telephone numbers of targets (so that they could be hacked), the owners of given telephone numbers (``spinning''), call histories (phone bills, or extracts from them) from which the identity of telephone numbers called by the victims could be ascertained, credit card details (useful for establishing how and where money was spent) and some medical information. While invoices have been disclosed which demonstrate that private investigators were used against the claimants, and MGN has conceded that the information thus obtained will have contained private information, no evidence has been produced as to what information was actually obtained in any particular case. It is said that such evidence as there once was has been routinely destroyed. The information obtained by these investigators is likely to have been obtained by techniques including ``blagging'' - the process of obtaining information from the person holding it by deception, including wrongfully claiming to be the person entitled to it or otherwise convincing the holder to part with it by some form of pretence.

  13. Thus the claimants make claims which are said to fall into three main categories - wrongfully listening to private or confidential information left for or by the claimant, wrongfully obtaining private information via private investigators, and the publication of stories based on that information. MGN admits all those activities (but not the extent of the first two) and accepts that damages are payable as a result, but does not accept that those three ``layers'' should be treated as separate compensatable matters when it comes to assessing damages. This point will be developed below in considering detailed matters of quantum.

  14. For the sake of completeness I should add that there was a fourth possible unlawful technique for getting information, which is blagging by the journalists themselves. That probably happened too, but I do not need to consider that separately.

  15. Mr Yentob's case is different from the other claimants in that it does not have one of those layers. While there was evidence of a lot of hacking directed at him, no stories were published about him as a result. It is likely that the information left for and by him was used to investigate other individuals of more interest to the newspapers.

  16. The cases of the other claimants do not depend exclusively on articles published about them. They also rely on phone hacking which did not result in articles (as does Mr Yentob - that is the essence of his claim). The direct evidence of actual hacking against them is limited for reasons that will appear below. For that reason each of them relies on evidence which has been described as the ``generic'' case, or ``generic'' evidence. That is evidence as to general practices at the Mirror group, in the form of oral evidence as to the sort of things that went on (from two journalists), phone records which are said to support the general practice, and a limited number of emails relating to other individuals which are said to support the evidence of general practice. From this general practice I am invited to draw conclusions as to the extent of the activity directed against each claimant.

    The openings

  17. Mr Sherborne opened this case at some length. That was necessary and appropriate because there are eight separate claims, each sharing a lot of common material but each having their own features. Because of the detailed nature of the documentary evidence it was necessary for Mr Sherborne to explain how much of the material worked for him, which is why the opening took as long as it did (and it was also significantly interrupted by the need to consider reporting restrictions and other allied matters). His opening was what would, in traditional terminology, be correctly characterised as a very ``high'' one.

  18. Mr Nicklin also took the opportunity of making an opening statement, but it was short. It did not deal with any of the detail or substance of the case, but in the main amounted to repetition of his client's acceptance (and the acceptance of its parent company) that what had happened was wrong, and it was apologised for. It accepted that proper compensation should be paid, and pointed out its case that it had co-operated in full with the Metropolitan Police in the latter's investigations. It foreshadowed an attempt to disprove some of Mr Sherborne's more extravagant claims and disclaimed any suggestion that the board of the parent company knew of hacking at the time of the recent Leveson Inquiry into The Culture, Practices and Ethics of the Press, that that company had participated in any kind of cover-up and that a large number of journalists had been involved in wrongful voicemail interception. He indicated other areas of intended challenge. This sort of opening was, I suppose, to be expected in the light of the high opening of the claimants.

    Admissions and apologies

  19. Until relatively recently the Mirror group has firmly and publicly denied knowledge of any phone hacking activities at any of its titles. Various executives and employees told the Leveson Inquiry that it did not happen, at least on their respective watches. Mr Nicklin does not accept that there were blanket denials in the strong form relied on by Mr Sherborne, but having considered various of the pronouncements there is in my view no doubt that the impression built up is one of denial of the activities.

  20. The original form of defences in all the actions made a series of non-admissions. There were attempts to strike out two of the original claims and parts of two others. Those applications all failed ([2013] EWHC 3392 (Ch)).

  21. Then at the end of last summer the position suddenly changed. In September 8 cases were progressing for trial. Suddenly, immediately before a hearing intended to undertake costs budgeting, 4 of them settled, apparently as a result of an offer from the defendant and admissions of liability in relation to them. This heralded a complete change of approach on the part of the defendant. On 24th September 2014 the defendant's solicitors sent a letter admitting liability in the particular cases in general terms in relation to the cases then being taken forward. The defendant went so far as to seek judgment against itself on liability which (at first sight paradoxically, but on reflection entirely justifiably) the claimants resisted (successfully). The defendant resisted the idea that it should have to make clearer the scope of its admissions, and there was a risk that it would seek to confine the case to one which considered just the pleaded articles and did not consider any wider case of hacking or other intrusions which did not necessarily result in articles. It resisted the idea that it ought to particularise its admissions so that their scope was clear, but I ordered that it should on 26th September 2014.

  22. The product of that order was Defences in the actions which admitted, in general terms, that the defendant was responsible for the unlawful interception of voicemails and the blagging of call data. It admitted that the articles then complained of were likely to have been the product, at least in part, of those unlawful activities, but went on to say that the defendant did not know, and could not establish, the extent of the unlawful activities. Certain more specific admissions were made as to particular types of activities carried out by Mr Dan Evans and private investigators. The Defence went on to plead that ``In the light of the admissions above, the Defendant does not plead further to the Particulars of Claim''. That left a considerable number of specific allegations in the Particulars of Claim unpleaded to. Later forms of Defence in later actions were in similar terms. More than once in the history of this matter Mr Sherborne has complained about the formulation of the Defence (the refusal to plead to a number of allegations), and with some justification. It was plainly a tactical move, as was the attempt on the part of the defendant to get judgment against itself. It seems a bit disdainful of the requirement for pleadings and was contrary to my expressed insistence that the scope of the admissions made be clearly delineated.

  23. This pleading point has had some effect on the case. The technical effect of not pleading to an allegation under the CPR is actually to admit any allegation not pleaded to (CPR 15.5(5)). As part of each originally pleaded case the claimants pleaded that each article contained private information, and ran a claim for infringement of privacy as a standalone case on each article (ie a claim not dependent on that article having its source in preceding infringements). It is true that the private information in each article was not specifically identified, but the point was there. As a result of the final forms of Defences those standalone claims were not pleaded to and therefore fall to be treated as admitted. Mr Nicklin nonetheless sought to take the point that in some of the articles none of the information disclosed was information in respect of which such a standalone claim could be made. Mr Sherborne submitted that Mr Nicklin could not take that point as a matter of pleading, and that the defendant had to be taken as admitting those allegations to which it had expressly declined to plead. I accept Mr Sherborne's submission. The result is that the defendant, as a result of its tactical step, is to be taken to have admitted a standalone privacy infringement case in relation to each article (save for late-introduced articles). If that puts it in a difficult position then that is as a result of its own acts.

  24. In due course the admissions made in the Defences were followed up and amplified by formal admission documents in November and December 2014. These, when combined, added the following admissions (amongst others):

    (i) As a result of voicemail interception and/or the blagging of call or other data, the defendant obtained mobile telephone numbers and other telephone account data.

    (ii) Mobile telephone numbers were obtained from journalists, mobile telephone companies (by blagging), from blagging carried out by private investigators and the interception of voicemail messages.

    (iii) That the admissions of Mr Dan Evans in various police interviews and statements were true, including his modus operandi. This is an important admission because his evidence is the bedrock of the generic case against the defendant. There are particular admissions in the admissions document about: the use and periodic destruction of pay as you go mobile phones by journalists to avoid detection; and that ``Activities'' (voicemail interception and blagging) were frequently carried out, including a ``substantial'' but unquantifiable number of Activities (hacking) using pay as you go mobile phones.

    (iv) The information obtained from the unlawful activities was information that the defendant was unlikely to have been able to obtain lawfully.

    (v) The call data disclosed by the defendant showed that voicemail was in intercepted ``on a regular basis''.

    (vi) That it is likely that further voicemail interception was carried out using pay as you go mobile phones (PAYGMs).

    (vii) That (in relation to the articles that were then pleaded, which is most of the articles in play at the trial), but for the wrongfully obtained information the articles would not have been published. This is a very important admission for the purposes of these trials.

    (viii) The invoices of private investigators disclosed by the defendant in the action were evidence of wrong-doing in relation to the relevant claimant as relating to call data blagging (that is my paraphrase of the admission). In a later admission the scope of this admission was widened to cover information other than call data blagging.

  25. It is unnecessary to set out other admissions. It is sufficient to observe that these admissions are extensive, but do not amount to any admission as to the scope of unlawful activities beyond the use of the word ``substantial''.

  26. As the actions approached trial the defendant added apologies to the admissions, and made a public admission in its newspapers. On 10th February 2015 it wrote in a similar vein, but in different terms, directly to the various claimants. The letter was signed by the Chairman and Chief Executive of the holding company Trinity Mirror plc. It expressed ``sincere apologies'' for the ``wholly unacceptable intrusions'' to which the claimants were subjected, and said that the activities which involved the procurement of personal information which had ``no place in our newspapers'', and were ``improper and should never have happened''. The letter went on:

    ``We accept that it has taken us longer than it should have, to investigate exactly what happened. Our internal investigations have, however, been very time-consuming and extensive and we believe that we have taken every practical step to try to get to the bottom of precisely what was done. Given the amount of time that has elapsed, we do not claim to have perfect knowledge of what went on. Indeed we don't believe it will ever be possible for us to get to the bottom of precisely what was done.

    In our endeavours to get to the truth, we have actively co-operated with the Police whose enquiries are ongoing. We are sure that in due course you will see the outcome of those investigations and you will then gain some insight into the extent of Trinity Mirror's assistance to the Police.

    Although we cannot undo what has happened we are personally determined to ensure that nothing like this ever happens again. We are also concerned to do the right thing by the victims such as yourself by making this apology and by providing you with appropriate redress, including financial compensation, for what has happened."

    Some letters contained a repetition of the apology at the end.

  27. This was followed by an apology published in the Mirror titles on 13th and 15th February in a box on page 2. The box in which it was contained was outlined in black. In height it was about a quarter of the page's height, and about 75% of the width of the page. It acknowledged the unlawful activities which had happened, accepted that there had been an unwarranted and unacceptable intrusion into private lives, it was unlawful and should never have happened. The papers apologised, and apologised for the distress caused.

  28. In due course I will have to return to these apologies, because most of the claimants were distinctly unimpressed by them and their timing. The solicitors acting for the claimants responded to them, and that triggered a further letter from the same individuals to each claimant. That letter sought to justify the delay in uncovering the matters and professed (repeating something in the earlier letter) that the group was co-operating with the police.

  29. Some of the claimants expressed the view, in various ways, that the apologies were triggered by the approach of court proceedings. No-one gave evidence about their genesis, but the timing suggests that they were. They came some months after admissions were made. Insofar as it matters, I find that the apologies were made at least partly as a tactical matter with an eye to the forthcoming trial. That does not mean that the apologies were not genuine, but the timing suggests a tactical element as well.

    Witnesses

  30. The defendant chose not to call any witnesses. The claimants deployed a large number of witness statements, but not all witnesses were cross-examined by the defendant. The defendant sought to cross-examine only the claimants, together with one witness lending support to a particular claimant, and the two journalists who gave evidence of the nature and extent of the phone hacking at the Mirror group. In fact, when called, one claimant (Mr Gascoigne) was not cross-examined (to his obvious disappointment).

  31. I shall deal with the content and effect of the evidence of the various witnesses when I come to consider the individual cases, but there are some generally applicable observations which it useful to set out here.

  32. There were some common themes running through the evidence of the various claimants.

    (i) They all spoke of their horror, distaste and distress at the discovery that Mirror group journalists had been listening, on a regular and frequent basis, to all sorts of aspects of their private lives. Their use of voicemail was such that many aspects of their personal, medical and professional lives were, to a very significant degree, laid bare in the voicemails they left and in the voicemails they received. Several of them re-visited their distress in the witness box. I am completely satisfied that these expressions of their emotions were accurate, and that the emotions they felt were genuine, not exaggerated and entirely justified.

    (ii) They all spoke of the effect on their lives caused by the distrust that the newspapers' activities engendered in them and those around them. When newspapers were publishing matters known only to a very few (sometimes only two) people, those privy to the information suspected others of leaking it. That led to distrust which had a very adverse effect on close relationships, including family relationships. It also got in the way of claimants seeking to forge new, or retrieve damaged, personal relationships. In other words, the published stories were very damaging to their personal lives. Again, they were forced to re-live this in the witness box, to the obvious distress of some of them. Again, I was completely satisfied that their evidence on these points was correct and without exaggeration.

    (iii) They all spoke of their personal distress and anxiety of seeing articles published about them. This was, in the main, great. Their evidence on this was convincing and I accept it.

  33. All the witnesses were, in my view, reliable in the evidence that they gave. They were pressed on certain matters to varying degrees, and they answered in a straightforward and honest fashion. At least two of them (MrYentob, and Miss Frost until I intervened) were cross-examined in a manner which was, in my view, plainly inconsistent with the contrition expressed in the apologies I have identified above. At the very end of the evidence Mr Nicklin apologised for the offending part of his cross-examination of Miss Frost (I had not taxed him with his cross-examination of Mr Yentob at the time).

  34. In addition to the claimants, their supporting witnesses and two journalists who spoke as to practices in the defendant's newspapers at the time, the claimants provided witness statements from three other individuals (Bobby Nankeville (also known as Bobby Davro), Alex Best and Abi Titmus), the relevance of whose evidence was not readily apparent. It played no part in the proceedings and I do not need to refer to it further.

    II - THE GENERAL FACTUAL BACKGROUND

    The general hacking background to all the claims in these actions

  35. The case of the claimants seeks to establish the scale of phone hacking (and other illicit activity) in the MGN with a view to showing that it was very widespread indeed, and to suggest that general evidence about that scale can be used to inform a judgment as to the scale of the activities in relation to individual claimants. In principle that approach is a legitimate one, though of course care must be taken in drawing inferences in any individual case. Accordingly evidence as to scale is relevant.

  36. The defendant submitted that seeking to establish the scale of wrongdoing is impossible and irrelevant. I agree that seeking to produce a precise account of the scale would not be possible because, as will become apparent, the activities were covert and those who carried them out were careful to cover their tracks. That means that precision is impossible to achieve. The defendant has not called any evidence on the point and gave no disclosure of documents covering the point save for that which it was compelled to give on (resisted) applications.

  37. Some inferences can be drawn from the evidence, both as to the general scale of hacking and the extent of hacking against any given individual. It is in my view plainly relevant to form some idea of scale. The defendant has admitted hacking and other activities in terms which usually involve the word ``substantial''. That is a broad term, capable of covering something more than small scale (distinguishing it from ``insubstantial'') to very great. It is not clear how far it goes. The claimants seek to establish that the activity was very great indeed, and that that translates into its being great in relation to each claimant (which, if true, is what matters for each of their respective claims). I agree that that inquiry is a relevant one. The greater the degree of hacking, the greater (potentially) the invasion of privacy and therefore the damage to the claimants. Mr Nicklin submitted that that was irrelevant since at the heart of the claims was damage to feelings, which arose from perception of the extent not the actual extent. In a later section of the this judgment I deal with this point. For present purposes it is sufficient to say that I consider it to be wrong.

  38. It is therefore relevant and necessary to consider the evidence about the scope of invasions, and the scope of the practice in the newspaper, generally in order to inform a judgment about the scope in relation to any given individual.

  39. The evidence about this came from various sources. So far as oral evidence is concerned there was the evidence of Mr Dan Evans, a journalist employed by MGN on the Sunday Mirror, and to a lesser extent the evidence of Mr James Hipwell, a former Daily Mirror journalist. Mr Sherborne also relied on documentary evidence from which he said the scale could be judged, in the form of email traffic, call data and evidence of payments made to private investigators. That evidence is summarised below. In that summary any recitation or summary of fact should be taken as a finding by me unless the contrary appears.

    The oral evidence of practices at the Mirror group

  40. Mr Dan Evans was formerly employed by the Sunday Mirror and was able to give an account of the phone hacking and other activities that went on there. He was a clear witness, most of whose evidence in chief was admitted before he went into the witness box in any event (see above). I accept his evidence. Important note - In connection with the reporting restrictions order I have made, for the avoidance of doubt, and because Mr Evans' credibility may be in issue in other proceedings, it should be noted that there was no material challenge by the defendants to Mr Evans' credibility in cross-examination in this action. The position may be otherwise in other proceedings.

  41. Mr Hipwell was formerly employed on the Daily Mirror. With another, he wrote and ran a column entitled ``City Slickers''. In circumstances that are now well-known if not notorious, he and that other were prosecuted for buying shares before tipping them in the column. He was (as his witness statement admits) convicted and sentenced to 6 months imprisonment. That, and another occasion on which it was suggested that he wrote a defamatory argument which was found to have been published maliciously, were deployed in a sustained attack on his credibility by Mr Nicklin, some of which included putting unfounded suggestions about the content of Sir Brian Leveson's report. It turned out that that attack was not directed at undermining that part of Mr Hipwell's evidence in which he spoke of the carrying out of phone-hacking activities at the Daily Mirror, but on that part of his statement in which he sought to implicate xxxxx xxxxxx xxxxx xxxxxx xxxx xxxxx xxxxxx xxxxxxxxxxxxx in knowledge of phone hacking. The rest of his evidence was not challenged.

  42. The following facts emerge from the evidence of those witnesses. Mr Evans' account is fuller, and I shall deal with it first.

  43. Mr Evans joined the Sunday Mirror as a freelancer in 2001 and joined the staff in 2003. xxxxxx xxxxx xxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxxx xxxxxxxxx xxxxxxxx xxxxxx April 2003 xxxxxxxxxxxxxxxxxxxxx left the paper to become the editor of xxxxxx. Mr Evans was called into an office by xxxxx and told that xxxxx [the departing journalist] had taken with him a valuable source of information, which turned out to be information about telephone numbers which could be hacked. xxxxxxxxx then showed Mr Evans how to access a voicemail message, using Mr Yentob's voicemail as an example. It seems that he was bold enough to dial straight through to the number and get the voicemail without using double-tapping - he explained to Mr Evans that Mr Yentob never picked up his phone (so it would always go to voicemail). He showed him how to press certain keys once the voicemail system intervened in order to access the voicemail menu and then to listen to the calls, having entered the PIN. Later on at the meeting xxxxxxxx produced two mobile phones and told Mr Evans about the double tap method. During this meeting xxxxxx popped in and out on more than one occasion. Mr Evans' evidence was also that xxxx made it clear that Mr Evans' job for the foreseeable future was to rebuild xxxxxxx[the departing journalist's] database. For this purpose Mr Evans was given hundreds of mobile phone numbers and other details, such as dates of birth. This information came from xxxxxxxxx and xxxxxxxxx.

  44. Mr Evans gave details of how he carried out the double tapping technique of accessing voicemail messages, and of his use of the generic Orange number (see above), which number is still ingrained in his mind all these years later. He had to use a lot of trial and error to crack PINs, and was not always successful, but often he was. There came a time when two of the networks changed their security procedures, and required their subscribers to select their own PINSs and on those occasions existing hacking opportunities were lost and Mr Evans had to set about cracking the new PINs.

  45. In order to do all this he generally used PAYGM phones (pay as you go phones), but he did not use any given phone or SIM card for very long (usually not longer than 2 months) for reasons of ``safety'', which I take to mean in order to avoid traceability. When he deemed a mobile phone was not safe any more he would snap the SIM and throw the phone into the Thames at Canary Wharf. The SIM card was disposed of separately. This was despite the fact that these phones did not generate call records, and could not be traced to any particular owner. These mobile phones were called ``burners'' (at least by him). When he bought a new phone he would pay cash and be reimbursed by the newspaper. (He also had a separate mobile phone for more legitimate activities.)

  46. He was not usually given express written instructions, in terms, to hack a number, but from time to time he would receive a message containing a name, a telephone number and the date of birth of the apparent owner of that phone number. That was in substance an instruction to hack, and he so took it. If he found anything useful he would report back to xxxxxxxxx or xxxxxxxxx. Other journalists gave him similar ``instructions'', including Mr James Weatherup, xxxxxxxxxxxxxx and to a lesser extent xxxxxxxxxxxxxxx (whom Mr Evans was at pains to emphasise was not seriously involved in phone hacking though he provided details and knew about the list that was being constructed) and a xxxxxxxx.

  47. Having successfully hacked some phones and acquired targets Mr Evans then listened to their messages to see if there was anything of interest. He was expected to check the phones most mornings (from his home) and then in the evenings as well. If he heard a call of interest he could get the incoming number from the voicemail system and he would then try to hack that phone as well. If it was not clear from whom that message came then he could, and did, instruct private investigators to find out where it came from (by asking them to identify the owner of the number). If the hack was successful he might, and often could, get information from messages left on that second number by his intended target. He called this process of acquiring groups of targets ``farming''. Thus he could listen to messages left by, as well as for, his intended victim, and extend the reach of his information source. It is plain that his activities grew over time as he managed to crack more and more PINs. He himself managed to crack at least 100 PINs. At least one other journalist had a bigger database than he did. If he got useful or interesting information from listening to a message he would pass it ``up the chain of command'' (which meant to xxxxxxxxxx and xxxxxxxxx, and xxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxx xxxxxxxxxx xxxxxxxxxxxxx, and xxxxxxxxxxxxxxxx) for consideration of what action to take about it. Sometimes his exploitation of his phone hacking database took several hours a day.

  48. Mr Evans collated his information on a Palm Pilot, a handheld device capable of storing (inter alia) address information in various fields. It synchronised to a desktop application. His Pilot was used to store names and numbers, and some addresses, but not PINs. Not every number on the Pilot was a successfully hacked number, but some were. His Palm Pilot records have survived, and have been used as an indicator of hacking or attempts to hack.

  49. In addition to that record Mr Evans kept a ``back pocket'' list. In line with security considerations that he was told to adopt, this was never stored digitally. He created it by typing the details up and printing them, via a word processor, but without ever saving the list to disk. It was a a list of regular targets whose PIN numbers he had cracked and whose voicemail messages he could listen to easily. At the height of his activities he said that he probably had 100 targets on his list, and he checked them daily. Of the present claimants, all except Mr Gascoigne were on this list. The effect of his evidence was that those targets would be checked twice a day (morning and evening), every day, as a minimum. Doubtless if something interesting was thought to be happening they would be checked more frequently. This list was updated from time to time, and he prepared copies for xxxxxxxx and xxxxxxxxx.

  50. Not all the information that was obtained from phone hacking was usable for a story. If it was it would be passed to other journalists (who would often not know where the story came from), and they would investigate through more legitimate means and, if possible, write the story. Information that was obtained from hacking would, if published, have its source disguised by attributing the source to a ``friend'' or ``pal''. As will appear, this had a particularly caustic effect on the relationships of the victims. Sometimes the detail was changed so that a victim could not work out what the source was. Sometimes a comment was perceived as useful, and the victim, or a PR person, would be called to see if more detail could be elicited. Mr Evans said that xxxxxxxxx was particularly good at that.

  51. Private investigators were involved in getting information for these activities. There was much use of a company called Express Locate International Ltd (''ELI'', which later changed its name to Trace Direction International Ltd - ``TDI''), though other companies were also used. This company could apparently find out the telephone number and address of an individual (for £125) or a quarterly phone bill (£250). It could ``spin'' a number - find out the individual who owned a number - particularly useful for identifying someone who left message on a victim's phone if it was not apparent from the message. They were also employed to provide credit card details (potentially useful for identifying stays in hotels, the amount spent there, meals in restaurants, and the like). In one case they obtained details of gambling transactions between a celebrity and bookmakers. Mr Evans said that if a story broke elsewhere about a celebrity (and he gave someone breaking up with a partner as an example) the first thing he would do was to call ELI/TDI to ask for the target's phone number and call data for the past quarter. That would reveal who had been called first thing in the morning and last thing at night, who was frequently called and what patterns there might be. Once other individuals were identified in that way an attempt was made to hack their phones. If useful information was revealed, a photographer could be despatched to maintain a watch (on both sides of the apparent affair) and get incriminating photographs. If photographs were obtained the story could be centred around those photographs and presented (if necessary) as the fruit of a lucky paparazzo, achieving what Mr Evans referred to as a degree of deniability. Sometimes medical information was obtained (probably by blagging) and communicated. It does not seem that this took the form of complete medical records, but would be more in the nature of confirmation about a condition, such as the existence of a pregnancy (to give one example given by Mr Evans). The extent to which medical information was provided was not apparent from Mr Evans' evidence. He himself could only recall two occasions on which he received medical evidence. Mr Evans was not alone in using private investigators for these purposes. Other journalists used them too (as is apparent from the appearance of names on invoices).

  52. Although on occasions information was communicated by ELI over the phone, it was usually supplied by fax. All details were apparently handwritten or (according to his witness statement) typed up - Mr Evans did not remember often receiving a straight copy of the phone company's bill. The fax would be picked up off the fax machine by a PA and given to Mr Evans (or any other journalist requesting it). This paperwork was destroyed as part of the security precautions surrounding the activity. Some ELI invoices, have, however, survived. They tend to identify the person about whom the inquiry was made, but they never particularise the work done. The use of the inquiry agents was obviously fairly intense - Mr Evans said he often spent over £1000 per week on their activities. In its admissions the defendant admitted paying over £2.25m (in over 13,500 invoices) to certain named private investigators in the years from 2000 to 2007. The peak years were 2003 to 2005, which coincided with the period of most phone hacking, but it is dangerous to extract too much from these figures. The total covers a lot of agents, and some of their work may have been legitimate. The defendant has admitted that ``an unquantifiable but substantial'' number of the inquiries made of the agents is likely to have been to obtain private information that could not be obtained lawfully.

  53. Mr Evans received clear instructions from xxxxxxxxx about the need to cover his tracks for these unlawful activities. Those steps included:

    (i) Not listening to messages until they had been listened to by the victim. If he had listened before they did the messages would have gone from ``new'' messages to ``saved'' messages in the mailbox, and the victim might have been alerted to something going on.

    (ii) He did not use traceable phones for his activities. He ``largely'' used the burners, paid for with cash and destroyed periodically as referred to above. He knew that xxxxxxxxxx and xxxxxxxx also used PAYGM phones for hacking purposes.

    (iii) He did not record PINs in electronic format, and destroyed old copies of his back pocket list which contained them. On occasions he would record what he heard on a tape recorder, but he destroyed all tapes. If he transcribed a message to show to xxxxxxxxxx or xxxxxxxxx he would create and print the document on a computer without saving it.

    (iv) At one stage MPs were targetted, but xxxxxxxxx told Mr Evans to stop that because xxxx did not want to risk attracting the attention of the security services.

    (v) xxxxxxxxxx told xxxxxxxx and Mr Evans to stop referring to ``phones'' and ``messages'' in any communications and there should be no email overtly referring to voicemail hacking activity. If it was necessary to refer to victims they should be referred to as ``muppets''. In fact no words of instruction were necessary in an email - an email containing just a phone number and a date of birth would be understood as being an instruction to hack.

  54. In addition to those measures, the newspaper was sensitive to the possibility that in some cases it would be possible for a victim of hacking to identify the source of a story by looking at it and working out where it must have come from, unless something were done about that. So steps were taken to disguise the source, and Mr Evans said that in some cases a week would be spent putting in place other plausible sources of the story to achieve the disguise. This demonstrates both the importance of the hacking tool and the lengths to which the journalists would go to achieve concealment.

  55. Mr Evans' time as a journalist was not completely taken up with phone hacking, but once he had started to rebuild the database a lot of his time was. He estimated that once he had got going on the activity he would make between 60 and 100 calls per day - thousands over his career at the newspaper. This is obviously very extensive activity. Mr Evans said that he was aware of many other journalists who were doing it. Given that many others were doing similar things, it would not be unfair to describe the activity as happening on a very large scale. He started doing these activities in the office, but after a while he was allowed to do his morning trawl from home. He also hacked for messages while in his car, filling in dead time. The Sunday Mirror office was open plan, and in order to try to keep some confidentiality in relation to the activity Mr Evans would do it in one of the separate offices - that of xxxxxxxxxxxxxx, and occasionally xxxxxxxxxxx. When xxxxxxxxxxxxxxxxxx joined the newspaper in that role he would still do it in the office, sitting across a table from xxxxxxxxxx.

  56. Mr Evans stayed with the Mirror group until January 2005, when he joined the News of the World. He has frankly admitted that he continued his hacking activities there.

  57. In some of his police statements Mr Evans put some specific flesh on the bones of his narrative by pointing to certain newspaper stories which were published as a result of phone hacking activities. Most do not involve the current claimants, but the narrative is clear in its claim (not disputed by the defendant) that hacking was the ultimate source of the story, and in its claim of the disguising of that fact by attributing information to ``a friend''. He is clear in saying that xxxxxxxxxx was often involved in the decision to take the story forward, and on occasions xxxxxxxxx also knew and even participated in writing the story up. Other journalists are also said to have known the source. He specifically refers to his involvement in one particular story involving Mrs Taggart and one involving Miss Gulati. It is unnecessary to go into details about all this. It is sufficient to say that he was able to give plenty of examples as to how stories were worked up from information acquired from phone hacking. It demonstrates clearly how routine phone hacking had become and how big a part it played in generating, developing or standing up stories.

  58. xxxxxxxxxxx involvement in Mr Evans' initial instruction about hacking, and xxxx subsequent involvement in stories knowing their source, means that knowledge of and participation in phone hacking existed at xxxxxxx [a senior level] on the actual journalism (as opposed to the Board or administrative) side of the business. This is also demonstrated by Mr Evans' evidence, which I accept, that xxxxxxxxx instructed Mr Evans to try to acquire an electronic ``box'' which would help in working out PIN numbers. Mr Evans never found such a product (not surprisingly - it is hard to see how it can have existed), but the fact that xxxx gave xxx instruction is a demonstration of how high up, and how embedded, phone hacking had become in getting stories for the newspaper.

  59. Mr Evans' evidence was centred around the activities at the Sunday Mirror. Mr Hipwell gave evidence of practices at the Daily Mirror, albeit in more general terms. He worked there as a journalist from April 1998 to February 2000. His paper shared the 22nd floor at One Canada Square, Canary Wharf, with the Sunday Mirror. It was an open plan office so he could detect the working practices of other journalists. His desk was next to the paper's showbusiness desk, and he could still, at this remove in time, identify 8 of the more numerous journalists who worked on that desk. It is unnecessary for me to identify them in this judgment, and inappropriate for me to do so because of potential forthcoming police inquiries. It is sufficient to say that they ranged from writers to more senior staff.

  60. He did not give any evidence that he himself was involved in phone hacking, and said he did not believe it had started by the time he arrived, but it had started in earnest on the showbusiness desk by mid-1999, when it was ``rife'' and ``endemic''. At a time when it had become common he asked a journalist (unidentified) to explain how it worked, and he was shown by means of hacking into Mr Piers Morgan's voicemail. During his time there he saw some of the individuals he had referred to hacking telephones, and heard junior reporters being instructed to ``trawl the usual suspects'', which became a widely used euphemism for phone hacking. He did not see all the individuals that he identified as working there, but expressed the view that it was inconceivable that any of them would have been unaware that hacking was part of the daily life of the desk. His impression was that several of the showbusiness desk journalists got a large proportion of their stories from phone hacking.

  61. He could identify the name of only one victim of the hacking, and that was Mr Yentob. He could remember his name because when hacking journalists used his name they transposed it into the ``Ying Tong Song'' recorded by the Goons many years ago. He understood that Mr Yentob's phone was a particularly rich source of stories.

  62. The only other specific hacking incident he could remember was when a journalist got a story from hacking the phone of one of the Spice Girls and then deleted the message after listening to it. The newsdesk personnel were pleased about that because it would have prevented a rival newspaper from listening to it.

  63. The last section of Mr Hipwell's witness statement was devoted to his belief that xxxxxxxxxxxxxxxxxxxxxxxxxxxxx must have known of the hacking. This is the only part of his evidence that was challenged in cross-examination. It did not amount to direct evidence of knowledge, but was Mr Hipwell's conclusion based on his knowledge of the involvement of xxxxxxxxx in the affairs of the newspaper. Other than indicating that his evidence was convincing, and I was far from satisfied that he was (as suggested by Mr Nicklin) motivated by a desire to pay back xxxxxxxxx for events surrounding Mr Hipwell's conviction, I do not find it necessary to make a finding about xxxxxx. It is, in the event, not necessary to do so, since the rest of Mr Hipwell's evidence implicates the newspaper at levels above the journalists investigating the stories, and I accept the rest of his evidence. It is true that he does not in terms implicate particular journalists, but I accept its import that senior journalists would have known of the hacking and accepted its fruits, whether or not they did it themselves.

    Email traffic

  64. In a world in which almost infinite resources could be devoted to the disclosure operation the disclosure which ought to be provided in relation to generic disclosure (disclosure of general practices so the extent and likelihood of hacking against particular individuals, and the level of involvement of newspaper personnel, could be ascertained) could be vast, or at least the search exercise could be vast. A vast number of internal documents ought to be searched across all three newspaper titles to look for material which might be said to evidence phone hacking, and since the evidence of Mr Evans is that express references were to be suppressed (which evidence I accept) the search would have to be for more subtle indications, the nature of some of which appears below. In pre-trial management hearings it became apparent that it was necessary to seek to keep the disclosure exercise within proportionate bounds, but there was a dispute as to what those bounds should be. The defendant resisted the idea of generic disclosure, and I ruled against it on that point. The more difficult question was how that should be achieved.

  65. During the course of the debate it became apparent that at least part of the exercise had been undertaken already, because the group was said to have been cooperating with the Metropolitan Police Service (''MPS'') in a criminal investigation in relation to phone hacking within the Mirror group. In that connection a (relatively small) number of what were described as ``slim'' lever arch files had been provide to the police, and I ordered that, at least in the first instance, those files should be disclosed as an alternative to huge searches in relation to vast numbers of emails and other documents in order to provide disclosure as to the generic case, which is capable of supporting the individual cases.

  66. Some of that material was email traffic. It was available at this trial. Mr Sherborne took me to some of it. It demonstrated a number of things.

  67. There were a number of emails which showed the provision of mobile phone numbers of people in the public eye, or those connected with them, from one internal person to another, and a number of requests for numbers. Sometimes that information, or those requests, contained or sought the date of birth of the person in question. Mr Evans' evidence demonstrated that dates of birth could be useful material when it came to guessing the PIN code of any given voicemail account. This pattern of conduct is supportive of Mr Evans' evidence as to the techniques adopted. No other reason has been suggested for the apparent need to know mobile phone numbers and dates of birth. It was not suggested that the phone numbers were provided so that journalists could ring the owner of the number to talk to him or her.

  68. The tone of this traffic suggests that the activity was run of the mill and frequent. Nearly all of the emails relate to the Sunday Mirror, with a handful relating to the People. Virtually none relate to the Daily Mirror. When (eventually) the arrangements with the MPS, which led to the disclosure, were revealed it became apparent that the nature of searches required (particularly the accounts to be searched) were more likely to throw up Sunday Mirror emails and not the emails of the other titles.

  69. The emails also reveal the levels at which phone hacking was known about, and indeed being conducted, within the Sunday Mirror. Various emails are to or from xxxxx, xxxxxxxxxx. Some demonstrate data being provided to xxx, and the only sensible inference in the context of this case is so that xxxx could conduct some hacking activity xxxxxxx. Otherwise it is apparent that the emails are passing to and from journalists and editors at all levels, and supports the inference that hacking was being carried out at all levels.

  70. There are certain emails which contain terminology which is almost a direct reference to phone hacking. Thus:

    (i) An email of 26th December 2003 from xxxxxxxxxxxxx to xxxxxxxxxxx, about a television personality, contains a number of elements. It refers to some information as to an affair that she was thought to be having and goes on:

    ``The last time we checked they were still phoning each other.''

    That information is most likely to have come from listening...

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