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URL: http://www.bailii.org/ew/cases/EWHC/Ch/2013/2119.html
Cite as: [2014] 2 WLR 756, [2014] 1 Ch 400, [2013] EWHC 2119 (Ch), [2014] EMLR 6, [2014] 1 CH 400, [2014] CH 400, [2013] WLR(D) 314

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		Neutral Citation Number: [2013] EWHC 2119 (Ch)
		Case No: VARIOUS

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

12/07/2013

B e f o r e :

MR JUSTICE MANN
____________________

Between:

	Various Claimants	Claimants
	- and -
	(1) News Group Newspapers Limited (2) Glenn Michael Mulcaire	Defendants
	The Commissioner of Police for the Metropolis	Respondent
	'TPQ'	Interested Party

____________________

Hugh Tomlinson QC, Julian Knowles QC, David Sherborne, Jeremy Reed, and Sara Mansoori (instructed by Atkins Thomson) for the Claimants
Dinah Rose QC, Anthony Hudson and Ben Silverstone (instructed by Linklaters LLP) for the Defendants
Jason Beer QC and Jonathan Dixey (instructed by MPS) for the Respondent
David Owen permitted to represent 'TPQ'
Hearing dates: 8th & 9th July 2013
____________________

HTML VERSION OF JUDGMENT
____________________

Mr Justice Mann :

Introduction

This application is an application for an order providing for disclosure by the Metropolitan Police Service ("MPS") of certain information relating to phone hacking activities said to have been conducted by journalists engaged by the first defendant newspaper ("NGN").

In this litigation persons who believe they have been the subject of illegitimate phone hacking by journalists acting for NGN bring, or may wish to bring, actions. There are a great number of them – potentially hundreds – and this litigation has become managed litigation in order to make sure that it is properly and efficiently dealt with.

Among the difficulties that claimants face is that they do not necessarily know the extent of the activities that were conducted against them from matters within their own knowledge. The activities were covert and the extent, or even the existence, of hacking activities would be unlikely to be apparent to the victim. The activities have been discovered only as a result of police investigations. As a result the main evidence of hacking is, or in the first instance is derived from, material in the hands of the MPS as a result of those investigations.

For over 2 years, before and after a claim made by Lord Prescott, a former Labour minister, the MPS have been informing those who seemed to them to be victims of hacking activities that there seemed to have been hacking in relation to those victims. In the Prescott case itself various concessions were made by the MPS and since, as will appear, I think that they are important to the status of the MPS it is necessary to set them out here.

When the case brought by Lord Prescott (and others) was settled it settled on the basis of an agreed declaration, an agreed Statement of Reasons and agreed letters contained in a Schedule to the order containing the declaration. The Administrative Court made the declaration, but with misgivings and qualifications which mean that the declaration cannot be taken to represent a legal definition of the general position applicable to the functions of the MPS for the period following that order. Nonetheless the material was material to which the MPS submitted in the context of phone hacking generally. That material, so far as relevant, was as follows:

The declaration was that:

"In breach of its duties under Article 8 of the European Convention on Human Rights, in circumstances where the interference with the individuals' right to respect for their private lives may have amounted to the commission of a criminal offence, the Defendant [viz the MPS] failed to take prompt, reasonable and proportionate steps to ensure that those identified as potential victims of voicemail interceptions were made aware of:

(a) The interference with the right to respect for private life that may have occurred; …

(c) The steps they might take to protect their privacy; and

(d) …The identity of those whom the police believed to be primarily responsible for the interception."

Such steps should have included informing the public generally, by announcements in the media, to the mobile telephone companies, or otherwise (and should have included, where appropriate, individual notification)."

The schedule to the order contained "Letters of regret", 3 of which apologised for providing inadequate information and 2 of which apologised for not providing any information at all until a late stage. They all express a commitment to "providing those who have been subject to unlawful intrusion with an appropriate response."

The "Statement of Reasons" contains the following:

"6. The Metropolitan Police developed a "victim" strategy that detailed how certain categories of individuals would be identified and then informed that they may have been the subject of unlawful interception.

7. The victim strategy was not executed as originally intended…

11. As to the [declaration], the Metropolitan Police has reflected on the way in which it should notify victims and potential victims who are unaware that their rights may have been infringed, especially where they are large in number, and the positive obligations imposed on it under Article 8 of the European Convention on Human Rights.

12. The Metropolitan Police has agreed that, for certain types of crime, it should endeavour to make the facts known publicly at the appropriate time, for example by a press statement. Additionally, and depending on individual circumstances, it may also be appropriate in some cases to tell certain people individually."

In line with those newly declared intentions (and pursuant to apparent MPS policies), apparent victims have been informed to some extent of their position as apparent victims and given some information about the matter. Mr Beer was at pains to explain that there were various reasons why the MPS told victims of their apparent status, including the investigatory needs of the MPS itself and a perception that victims needed to know and should know. The MPS did not, however, provide those persons with the all the information in their hands (mainly documentary evidence). Some information might be imparted, but copy documents were not provided. This left the individuals in question in a difficult situation in relation to litigation. They had information which caused them to believe they had a claim, but did not have copies of the material they would ultimately need in order to make a full claim or assess its strength.

Eventually, and in a previous phase of this litigation arising out of the facts of a police investigation called Operation Weeting, an agreed regime was put in place in order to permit the provision of information by the MPS to claimants or potential claimants. To avoid the need for repetitive applications for disclosure, made by as many people as there were potential claimants, a regime was put in place intended to yield information without such applications. It was put in place as a result of an order which was consented to by the then claimants and by NGN, and not opposed by the MPS. The regime was intended to provide those victims with that sort of written information. Broadly speaking, a person who believed they had been, or might have been hacked (which they would usually understand themselves to be because the MPS will have told them), and who wished to obtain information that the police might have on the topic, would provide the MPS with agreed forms of undertakings (to restrict use of any information provided), whereupon the MPS would provide certain specified types of information, redacted to protect the interests of 3rd parties (and conceivably so as not to prejudice prosecutions). Not only did that enable the information which a claimant might think he or she required to be obtained for the purposes of suing; it also enabled that party to form an early view of merits of the case on the basis of such information, and it doubtless enabled an early settlement of the case. I am told that it also operated for the benefit of persons who elected to take advantage of a private arbitration scheme set up by NGN to facilitate claims by those who wished to make private applications for compensation rather than suing in the courts, because they too could make a more informed claim, and form a more informed view of settlement proposals. The MPS did not formally agree to the order (it required the protection of a non-consent order) but it did not oppose it. NGN agreed to the form of order, and indeed submitted to an order that it should pay the costs of the police in providing that information. Since the order was not disputed it was not necessary for the court to rule on jurisdictional or discretionary matters which might have affected a disputed application. As far as I know, the system worked well and effectively. There has been a high rate of settlement of claims. I repeat that this regime, and this disclosure material, covered material held by the police as a result of its "Operation Weeting".

A new phase in the investigation has now opened up ("Operation Pinetree"), involving journalists other than those working with the original investigator whose activities gave rise to the first wave of litigation. The original police disclosure regime would not have worked for this new phase, because the evidence is apparently different. So a new order was proposed, albeit operating in part on substantially the same lines. The attitude of the MPS this time is the same as it was last time - it does not consent to the order, but does not oppose it. The terms of the order, as being an order which would not attract the police's opposition, have been agreed by the MPS. The terms of the order have also been agreed so as to protect the particular interests of a particular third-party, whom I do not need to identify here.

However, this time round NGN does not agree to this procedure. It takes the point that there is in fact no jurisdiction to make the order and that in any event the order should not be made in these circumstances. It has therefore argued against it at the hearing before me, and that gives rise to the question that I have to decide.

At one stage I wondered whether NGN had locus standi to take these points when the person against whom the order was aimed (the MPS) did not oppose it. However, having heard submissions on the point, and on the assumption that the application was really one for Norwich Pharmacal relief (an assumption which at times seemed misplaced when Mr Tomlinson QC, who appeared for the claimants, was making submissions on jurisdiction) I considered that NGN did indeed technically have locus and I so ruled. That ruling is the subject of a separate judgment which I do not need to repeat here. I will merely observe that at that time my decision was a technical one, based on the fact that NGN had an arguable case for confidentiality in the information in question, albeit that the objections to disclosure were not really based on that confidentiality. The extent of NGN's interest is something that may become relevant if I have to consider questions of discretion. Having got locus out of the way I need now to consider jurisdiction and, if jurisdiction is established, to consider whether on the facts and as a matter of discretion it is right to make an order.

The nature of the material and the proposed content of the order

In order to understand the contentions of the parties it is necessary to understand the nature of the material which is sought to be disclosed and the nature of the disclosure. In setting it out I can do so in only general terms because the nature of some of the information has to be treated as confidential in order not to impede continuing investigations by the MPS, because some of it is the subject of confidentiality said to belong to a particular individual identified only by initials in this case, and because other confidence is said to be involved. The disclosure, and disclosure mechanism, falls into two parts.

Part 1 (contained in paragraph 1 of the draft order proposed by the claimants) requires the disclosure of three specified categories of documents. They are said to be documents which go to hacking of more than one victim and are said to contain the sensitive material, or most of it. It is proposed that these documents be disclosed only to the lawyers acting for the present claimants (who for these purposes can be considered to be mainly if not exclusively Weeting claimants) and for NGN. There are to be redactions of material relating to those who have not already been claimants. The solicitors have given an undertaking not to disclose this material to any person before they have been notified by the MPS that they are a potential Pinetree victim. I have been told that 7 Pinetree claims have now been started, so presumably 7 people (or perhaps sets of people) have been told that by the MPS. If this material is made available it can, in the first instance, only operate for the benefit of existing claimants who already have Pinetree claims, but the undertakings will then allow it to be disclosed to future persons who are notified that they may have been subject to Pinetree hacking activity as and when they are so informed (the assumption presumably being that they will instruct the present Lead Solicitor).

Part 2 (contained in the following paragraphs of the order) provides that when a Named Individual provides confidentiality and use undertakings to the court, the MPS will disclose other material that it has, falling into specified categories, and which relates to that particular individual. It corresponds to the regime already in place in relation to Weeting material, adjusted to make it applicable to Pinetree material. It too is to be subject to redactions to protect the privacy of others and the integrity of the police investigation.

The basis of the application

Mr Tomlinson QC, who appeared for the claimants (that is to say, existing claimants) in this litigation put his case on a variety of bases at a variety of times. So far as the part 1 disclosure is concerned, he justified it at various times on the basis that it was Norwich Pharmacal disclosure [1974] AC 133, and, insofar as it was now being sought by claimants some of whom were actual Pinetree claimants, CPR 31.17 (third party disclosure). His clients' case had originally been based solely on Norwich Pharmacal, but it oscillated somewhat during the course of the hearing. So far as the part 2 disclosure is concerned, he again originally referred to Norwich Pharmacal, but subsequently sought to deploy CPR 31.17. His final position seemed to be case management powers "informed by" the inherent jurisdiction and Norwich Pharmacal, though he seemed to retain CPR 31.17 in the background somehow.

Miss Dinah Rose QC, for NGN, complained about this shifting ground (with some justification) and maintained that none of the jurisdictions invoked permitted the making of the orders. So far as they were based on CPR 31.17, that would not be available to anyone who was a non-party, and in any event the formal evidential requirements were not met; case management powers did not justify the making of orders which the court had no power to make under some permitted jurisdiction; the requirements for a Norwich Pharmacal order were not fulfilled in that the MPS were not sufficiently involved in the original wrongdoing to make them susceptible to the Norwich Pharmacal jurisdiction; and there was no other, wider, jurisdiction to order third party disclosure which the applicants were entitled to invoke.

The proper approach to this application

So far as Mr Tomlinson's submissions start from case management powers and make that the principal basis for his claim, I can reject them at this stage of this judgment. He pointed to the general power in CPR 3.1(2)(m):

"(m) [The court may] take any other step or make any further order for the purpose of managing the case and furthering the over-riding objective."

and he said that that would justify the making of the order sought, especially when "informed by" Norwich Pharmacal, though the court could make the order even in the absence of Norwich Pharmacal.

I am satisfied that the court's case management powers are not that broad and do not work like that. Mr Tomlinson's case involves the proposition that paragraph (m) has created a jurisdiction to order third party disclosure which did not exist before. Previous constraints on such disclosure would not apply if "managing the case" required otherwise. That cannot be right. The orders that the court can make must be subject to the constraints on jurisdiction that already exist. If there would otherwise be no power to order third party disclosure in these circumstances then in my view paragraph (m) does not create one just because it seems like a good idea in this particular case.

Nor does CPR 31.17 provide an obvious justification for the totality of the relief sought. It might provide a basis of a claim for disclosure by those who are already existing claimants, and the operation of the part 1 regime might be able to be brought under its umbrella (a point which I do not determine at this point in this judgment) but it cannot operate to justify the operation of Part 2 of the regime (which seeks to provide particular disclosure in advance of proceedings). CPR 31.17 clearly presupposes an application within proceedings, by a person who is already a party to proceedings:

"31.17 (1) This rule applies where an application is made to the court under any Act for disclosure by a person who is not a party to the proceedings.

…

(3) The court may make an order under this rule only where –

(a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affects the case of one of the other parties to the proceedings."

That wording, and particularly the underlined parts, strongly suggests, as one would expect, that the application has to be made within proceedings to which the applicant is already a party. That impression is confirmed by the wording of section 34 of the Senior Courts Act 1981, the enabling provision which allowed for the introduction of what is now CPR 31.17. The relevant part reads:

"34(2) On the application, in accordance with rules of court, of a party to any proceedings, the High Court shall, in such circumstances as may be specified in the rules, have power to order a person who is not a party to the proceedings [to give disclosure in accordance with certain conditions]."

Again, the emphasised words make the position clear. Accordingly, the power can only be exercised in favour of someone who is already a party, and the whole point of the proposed regime in this case is that the persons seeking disclosure are not already parties to litigation because they are not as equipped as they might be to assess the benefits of, and to commence, litigation.

In those circumstances the search for jurisdiction must lie elsewhere. The case based on inherent jurisdiction has its difficulties, to which I refer below, but in my view the first, and real, question is whether the disclosure sought from the MPS could be justified by invoking the Norwich Pharmacal jurisdiction. If it can then no further search for jurisdiction is necessary. If it works in this situation then the disclosure referred to in part 2 could be sought by those who have been notified of a potential Pinetree claim in advance of commencing proceedings. So could the disclosure in Part 1. I cannot see why existing Pinetree and Weeting claimants should not get the same relief; they should not be disqualified from it by virtue of the fact that they have already started their proceedings, and in any event if they would have been able to get Norwich Pharmacal relief in advance of proceedings it is unlikely in the extreme that they would not be able to get the same relief under CPR 31.17 within proceedings.

Accordingly, Norwich Pharmacal lies at the heart of the matter, as is reflected by the fact that most of the debate before me turned on it. I shall therefore deal with it next.

The scope of the Norwich Pharmacal jurisdiction

What the (potential) claimants are seeking in this case is evidence of who it was who was involved in phone hacking by NGN, and the extent of the hacking. They also seek evidence of the scope of the involvement of the phone hacking within NGN. There was no real dispute that somehow the nature of the information sought was not within the scope of Norwich Pharmacal relief. The principal debate was about whether or not the MPS was sufficiently involved in the wrongdoing to come within the Norwich Pharmacal requirements. The MPS was not involved in the original wrongdoing at all, and it is said by NGN that that prevents the Norwich Pharmacal jurisdiction from being exercised.

In order to deal with that point I have to consider a significant number of cases on the topic, because Miss Rose's point turns on a consideration of the detailed wording of a number of decisions, of which none are said to justify an order being made against someone who neither participates in, nor facilitates, the wrong on which the main cause of action is based.

The starting point is the Norwich Pharmacal decision itself ([1974] AC 133). As is well known, that is a case in which patentees sought information from Customs and Excise which would have enabled them to identify importers whom they said infringed their patent. On the facts, it was apparent that the alleged illegal importation could not have taken place without acts of Customs and Excise because of the control that Customs and Excise were able to exert over imported goods. The argument before the House of Lords ranged over various bases of giving discovery. One of the points made was summarised by Lord Reid as follows:

"But it is argued for the respondents that it was an indispensable condition for the ordering of discovery that the person seeking discovery should have a cause of action against the person whom it was sought. Otherwise it was said the case would come within the "mere witness" rule." (p173H)

He went on to consider the extent of the "mere witness" rule.

"It has been clear at least since the time of Lord Hardwicke that information cannot be obtained by discovery from a person who will in due course be compellable to give that information either by oral testimony as a witness or on a subpoena duces tecum. … the foundation of the rule is the assumption that eventually the testimony will be available either in an action already in progress or in an action which will be brought later. It appears to me to have no application to a case like the present case. Here if the information in the possession of the respondents cannot be made available by discovery now, no action can ever be begun because the appellants do not know who the wrongdoers who have infringed their patent. So the appellants can never get the information.

To apply the mere witness rule to a case like this would be to divorce it entirely from its proper sphere. Its purpose is not to prevent but to postpone the discovery of the information sought. It may sometimes have been misapplied in the past but I see no reason why we should continue to do so.

But that does not mean, as the appellants contend, that discovery will be ordered against anyone who can give information as to the identity of a wrongdoer. There is absolutely no authority for that. A person injured in a road accident might know that a bystander had taken the number of the car which ran him down and have no other means of tracing the driver. Or a person might know that a particular person is in possession of a libellous letter which he has good reason to believe defames him but the author of which he cannot discover. I am satisfied that it would not be proper in either case to order discovery in order that the person who has suffered damage might be able to find and sue the wrongdoer. Neither authority, principle nor public policy would justify that.

So discovery to find the identity of a wrongdoer is available against anyone against whom the plaintiff has a cause of action in relation to the same wrong. It is not available against a person who has no other connection with the wrong than that he was a spectator or has some document relating to it in his possession. But the respondents are in an intermediate position. Their conduct was entirely innocent; it was in execution of their statutory duty. But without certain action on their part the infringements could never have been committed. Does this involvement in the matter make a difference?" (174B-F)

Those remarks form the background to the encapsulation of the principle for which Norwich Pharmacal is said to stand as authority and which is oft-cited:

"… if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should cooperate in writing the wrong if he unwittingly facilitated its perpetration."

Miss Rose focuses on that formulation and says that it limits the application of the Norwich Pharmacal to cases in which the respondent to the application has been mixed up in a real and contemporaneous way with the original wrongdoing. That state of affairs would exist where the respondent actually participates in the wrong, and even where (as in the Norwich Pharmacal case itself) the wrong was merely facilitated. However, something like that is necessary, and it is absent in the present case.

I accept, at this stage of the reasoning, that Lord Reid formulates the principle in that way. However, I also bear in mind the logical context in which those remarks occur. He is at pains to distinguish the "mere witness", or bystander, who is not obliged to give discovery, from someone who is. On the facts of the case the potential touchstone was the facilitation of the wrongdoing, and that is the state of affairs that Lord Reid takes as the counterpoint to the position of a mere witness. Such a person was in an "intermediate position" between the mere witness and a joint wrongdoer (the latter of whom would presumably be compelled to give disclosure anyway), and was held to fall on the "disclosure" side of the line. The question that I will have to determine is whether the only thing which can turn a mere witness into a discovery giver is participation or facilitation (in Miss Rose's sense) or whether something else will work as well.

Lord Morris dealt with the point at pages 178 – 179. It is apparent at 178E that he considered that 2 questions arose – jurisdiction and discretion. The main question he went on to consider was the former:

"In this situation two questions arise: (1) Is it within the power of the court to assist the plaintiffs or is the law powerless? (2) If the court has power to make the desired order – would it be against the public interest to make it?"

He concluded that the court would not order discovery against a mere witness, and something additional would be required if disclosure was to be ordered. At page 178H he said:

"It is not suggested that in ordinary circumstances a court would require someone to impart to another some information which he may happen to have and which the latter would wish to have for the purpose of bringing some proceedings. At the very least the person possessing the information would have to have become actually involved (or actively concerned) in some transactions or arrangements as a result of which he has acquired the information."

This does not put the minimum test in terms of participation or facilitation, and might be thought to leave open the possibility of some other degree of involvement.

Viscount Dilhorne referred to the antiquity of the mere witness rule (page 185F) and at page 188 considered the principle of whether disclosure could be ordered in the case before him:

"… discovery can be granted against a person who is not a mere witness to discover, the fact of some wrongdoing being established, who was responsible for it. The "mere witness" rule has lost a great deal of its importance since the Common Law Procedure Act removed the bar to persons interested giving evidence, but it still has significance. Someone involved in the transaction is not a mere witness. If he could be sued, even though there be no intention of suing him, he is not a mere witness.…

Are the respondents to be regarded as so involved in this case? I think the answer is yes." (Page 188A-D).

Once again the person taken as the "opposite" of a mere witness is someone who was involved in the transaction. Such a person could not claim the exemption of the mere witness. I do not think that this reasoning clearly excludes the possibility that there might be other persons whose involvement is something less than a participant in the original wrongdoing but who should nonetheless not be regarded as a "mere witness".

Lord Cross also founded his decision on the fact that Customs and Excise had "effective control" of the goods – see page 197G. Lord Kilbrandon considered the "mere witness" rule at page 203B and went on to conclude that:

"The defendants are not mere bystanders…"

going on to consider, on the facts, why they were not (because they were facilitators of the wrongdoing). Again, therefore, Lord Kilbrandon was essentially finding on the facts that there were events which moved Customs and Excise from the status of a mere witness. He was, in my view, not necessarily ruling out other factors which might remove that status.

Ricci v Chow [1987] 1 WLR 1658 involved an application by a claimant for interrogatories which would have revealed the publisher of an allegedly defamatory letter. On appeal those interrogatories were disallowed. The Court of Appeal considered the Norwich Pharmacal jurisdiction and held that the respondent was no more than someone who had the information in question and who had not in any way facilitated the perpetration of the alleged wrong. The court declined to extend the remedy in such a way as would cover the facts of that case, and it plainly emphasised the fact that the jurisdiction cannot be invoked against a "mere witness". However, interestingly, it appears that the court might have been prepared to consider whether the principles underlying Norwich Pharmacal might have justified the extension of the jurisdiction to persons other than those falling within the actual formulation in Norwich Pharmacal:

"Mr Browne's formulation contains nothing in the nature of a principle. Nor does it point out any categorisation or definition of defendants against whom actions for discovery should be admissible beyond those covered by the tests referred to in Norwich Pharmacal. In effect, it is no more than a somewhat emotive statement of what the plaintiff feels the law should be on the particular facts of this case.

If Mr Browne's submission involved in some basis of principle which is consistent, or at least not inconsistent, with Norwich Pharmacal, then its soundness would obviously have to be considered…"

The jurisdiction next came before the House of Lords in Ashworth Hospital Authority v MGN Ltd [2002] 1 WLR 2033. Mr Tomlinson relied on this case as authority for the proposition that the Norwich Pharmacal jurisdiction was sufficiently flexible to allow for some lesser form of involvement than facilitation. Miss Rose relied on it as reinforcing Lord Reid's apparent requirement of participation in, or facilitation of, the wrong.

The first speech is that of Lord Slynn, in which he expresses agreement with the later speech of Lord Woolf CJ. He goes on:

"His analysis of the case law and the principles involved to my mind makes two things in particular abundantly clear. The first is that the jurisdiction recognised in [Norwich Pharmacal] to order disclosure of, inter alia, the identity of a source of information or documents does not depend on whether the person against whom the order is sought has committed a tort, a breach of contract or other civil or criminal wrong. It is sufficient but, it is important to stress, also necessary that the person should be shown to have "participated" or been "involved" in the wrongdoing which is the basis of the application for discovery." (p2035B-D)

This passage would seem to support Miss Rose, though the placing of inverted commas around "participated" and "involved" might be thought to suggest some flexibility in those concepts.

Lord Woolf sets out passages from Norwich Pharmacal, including the usual citation from Lord Reid and added that the speeches:

"… make it clear that what is required is involvement or participation in the wrongdoing and that if there is the necessary involvement, it does not matter that the person from whom discovery is sought was innocent and in ignorance of the wrongdoing by the person whose identity it is hoped established." (page 2041A)

Having found it unnecessary to decide whether the defendant was actually a wrongdoer in that case, he went on:

"34. It is sufficient that the source was a wrongdoer and MGN became involved in the wrongdoing which is incontestably the position. Whether the source's wrongdoing was tortious or in breach of contract in my judgment matters not. If there was wrongdoing then there is no further requirement that Mr Jones's and MGN's conduct should also be wrongful. It is sufficient if, in the words of Viscount Dilhorne in the Norwich Pharmacal case, there was "involvement or participation". As MGN published the information which was wrongfully obtained, the answer as to whether there was involvement or participation must be an emphatic Yes.

35. Although this requirement of involvement or participation on the part of the party from whom discovery is sought is not a stringent requirement, it is still a significant requirement. It distinguishes that party from a mere onlooker or witness. The need for involvement (the reference to participation can be dispensed with because it adds nothing to the requirement of involvement) is a significant requirement because it ensures that the mere onlooker cannot be subjected to the requirement to give disclosure. Such a requirement is an intrusion upon a third party to the wrongdoing and the need for involvement provides justification for this intrusion.

36. It is not the only protection available to the third party. There is the more general protection which derives from the fact that this is a discretionary jurisdiction which enables the court to be astute to avoid a third party who has become involved innocently in wrongdoing by another from being subjected to a requirement to give disclosure unless this is established to be a necessary and proportionate response in all the circumstances… The need for involvement can therefore be described as a threshold requirement. The fact that there is involvement enables a court to consider whether it is appropriate to make the order which is sought."

This passage makes clear the significance of the requirement of something which removes the situation from being one involving a "mere witness". However, perhaps significantly, it introduces a third concept – "involvement". That might be thought to be a lesser requirement than facilitation or participation. It is also, in my view, important to note that once again one sees the emphasis on factors which remove the case from one involving a mere witness. What is important is something which achieves that. In that case it was described as "involvement". That was what was held to be present in that case, to a significant degree. It is also important to note that the "involvement" which Lord Woolf thought was sufficient was the publication of the information. Since he had just rejected the idea that the jurisdiction would be exercised on the footing that MGN was a joint wrongdoer, or a wrongdoer in its own right by virtue of the publication, he must have been looking at publication as being something which, of itself, was a sufficient involvement. If looked at in that way, then the situation has indeed moved on from one of participation in, or facilitation of, the original wrong by the employee who disclosed the confidential information.

Mr Tomlinson's reliance on the case comes when one reaches paragraph 57 of the speech of Lord Woolf. In that paragraph Lord Woolf seemed to leave open the possibility of further developments in jurisdiction:

"57. The Norwich Pharmacal jurisdiction is an exceptional one and one which is only exercised by the courts when they are satisfied that it is necessary that it should be exercised. New situations are inevitably going to arise where it will be appropriate for the jurisdiction to be exercised when it has not been exercised previously. The limits which applied to its use in its infancy should not be allowed to stultify its use now that it has become a valuable and mature remedy."

I agree that that paragraph allows for the possibility of some development, but it does not allow for the possibility of a development which allows the jurisdiction to be invoked against a mere witness. That much appears from the following paragraph in Lord Woolf's speech in which he comes back to the point that the respondent must have been "involved, whether innocently or otherwise, in the wrongdoing". What it does, however, in my view, is to allow the court to consider what "involvement" is sufficient, without being trammelled by rigid concepts of participation or facilitation. I do not accept, as I understand Miss Rose to have submitted, that the flexibility referred to was in relation to other areas of the principle than the "participation/facilitation" area.

In Mitsui v Nexen Petroleum [2005] EWHC 625 (Ch) Lightman J considered an application under Norwich Pharmacal principles for disclosure of information required to enable a claimant to determine whether to sue for breach of contract. There was no problem over the identity of the wrongdoer. Lightman J plainly considered that the jurisdiction could be exercised in order to extract such information, citing Aoot Kalmneft v Denton Wilde Sapte [2002] 1 Lloyds Rep 417 as an example of such an exercise. He described one of the requirements for exercising the jurisdiction as being:

"the person against whom the order is sought must (a) be mixed up in so as [sic] to have facilitated the wrongdoing …"

Miss Rose relies on that as being a clear exposition of the requirement. She is right in saying that that was the basis on which Lightman J was apparently proceeding, but the sort of points that arise in the present case did not arise in that one.

Next, in support of her propositions, Miss Rose relied on R (Mohamed) v Secretary of State for Foreign & Commonwealth Affairs (No 1) [2009] 1 WLR 2579. Lord Reid's classic statement was treated as being the best formulation of the principle in paragraph 63 of the judgment of the court, where it is set out. The court went on to hold (paragraph 70) that:

"It is sufficient that the SyS or SIS became involved in the wrongdoing (even if innocently) by facilitating that wrongdoing. Our reasons are as follows.

(a) In Norwich Pharmacal itself the distinction that was drawn was between the mere bystander or witness to wrongdoing whom all the Law Lords were clear could not be placed under an obligation to provide information and those who were involved or who participated in wrongdoing in such a way as to place them under an obligation …

…

(c) We were referred to other decisions and observations including Axa Equity and Law Life Assurance Society Plc v National Westminster Bank plc [1998] CLC 1177 (where Morritt LJ spoke of involvement in terms of "causing or facilitating"), the observations of Sedley LJ in Interbrew SA v Financial Times Ltd [2002] 2 Lloyd's Rep 229 (where he spoke of facilitation), and Campaign Against Arms Trade v BAE Systems plc [2007] EWHC 330 (QB). In the last case King J said, at para 12: "The 3^rd party has to have some connection with the circumstances of the wrong which enables the purpose of the wrongdoing to be furthered."

(d) We are not sure that it was necessary to go so far as King J went in that case. That is because as Sir Anthony Clarke MR said in Koo Golden East Mongolia v Bank of Nova Scotia [2008] QB 717, para 37 it is necessary to consider all the circumstances in the light of the fact that Norwich Pharmacal relief is a flexible remedy.

71. It seems to us, therefore, that we ought to approach this issue not by asking the question, "did the actions by or on behalf of the UK Government cause the alleged wrongdoing?" (as they plainly did not do so) but by asking the question, "Did the UK Government through the SyS or SIS and its agents become involved in or participate in the alleged wrongdoing through facilitating it?"

Miss Rose draws attention to the passages cited as demonstrating the need to confine the remedy to cases of facilitation. I agree that that the enquiry conducted by the court in that case was couched in those terms, but I note that the court determined that that was the appropriate enquiry in contradistinction to something narrower (a causative involvement) rather than wider. Paragraph 70(a) of the judgment refers to the contrast being between a mere witness and something more than a mere witness, not between a mere witness and a facilitator. It is also noteworthy that the strict formulation of King J in the Campaign Against Arms Trade case was doubted on the footing that Norwich Pharmacal required a degree of flexibility. The flexibility that was under contemplation there must have been a flexibility in relation to the degree of involvement which was necessary.

As the most recent consideration of the principle, Miss Rose drew my attention to Rugby Football Union v Consolidated Information Services Ltd [2012] 1 WLR 3333. Lord Kerr described the "jurisdiction" to allow a prospective claimant to obtain information via Norwich Pharmacal relief by citing the familiar passage from Lord Reid's speech (paragraph 14) but goes on:

"15. Later cases have emphasised the need for flexibility and discretion in considering whether the remedy should be granted: [Ashworth; Koo]. It is not necessary that an applicant intends to bring legal proceedings in respect of the arguable wrong; any form of redress (for example disciplinary action or the dismissal of an employee) will suffice to grant an application for the order ...

…

17. The essential purpose of the remedy is to do justice. This involves the exercise of discretion by a careful and fair weighing of all relevant factors."

Various factors are then set out including:

"(v) whether the respondent to the application knew or ought to have known that he was facilitating arguable wrongdoing …".

Miss Rose relies on the references to being mixed up to the extent of facilitating the wrongdoing as re-emphasising the importance of that factor, one which she says, of course, is missing from the phone hacking cases. Mr Tomlinson points to references to flexibility. In a sense they are both right in their observations as to what was being said but it does not really help either of them. There was no issue on this appeal as to the quality of the defendant's involvement in the wrongdoing. The issue on the appeal concerned the balancing exercise at the next phase of the court's deliberations – whether, on the facts, it would be right to make the order bearing in mind the interference with the rights of the defendant, particularly under Article 8 of the Human Rights Convention. The citation of Lord Reid's encapsulation can be taken to be a convenient reference to the nature of the jurisdiction without being taken to be recognition that that formulation is an absolutely definitive one incapable of elaboration or development. It was not treated as a statute. Apart from the inherent inappropriateness of so treating it, it should be noted that it cannot be treated as an exhaustive formulation for all purposes, because it refers to the original wrong as being "tortious acts", when case law clearly acknowledges that the jurisdiction is not confined to tort cases.

Last, Miss Rose took me to Axa Equity & Law Life Assurance Society v National Westminster Bank (referred to in other decisions – see above). In that case there was a claim for Norwich Pharmacal relief against banks who had some information about the claim. Morritt LJ reflected on the level of involvement required in order to invoke the Norwich Pharmacal jurisdiction. Having cited previous authority in which the expression "mixed up" was used, at paragraph 20 he said:

"The phrase "mixed up in" is derived from the speech of Lord Reid in Norwich Pharmacal. Such phrase, though expressive, is of uncertain scope. No doubt this was intended so that the width of the jurisdiction might be worked out on a case-by-case basis. But the sense of its meaning may be obtained from the context in which the phrase was used by Lord Reid. Having described the "mere witness" rule and concluded that it was inapplicable because there could be no trial and thus the identity of the alleged wrongdoers was disclosed Lord Reid pointed out that it did not follow that discovery might be ordered against anyone who could give information as to the identity of a wrongdoer."

Morritt LJ went on to cite two passages from Lord Reid, including his classic formulation, and continued:

"21. The investors contend that it is not only the company but also the banks were also "mixed up in" the transaction from which the liability of Coopers is alleged to arise. I would reject that submission so far as it relates to the banks. It is not necessary that, as facilitators, they should have come under any liability themselves but they must have been so involved as to justify treating them differently from the bystander with whom such a person was contrasted by Lord Reid."

Miss Rose says that this case reinforces the need for a close connection with the actual wrongdoing. It undoubtedly repeats the formulation of Lord Reid, but I would draw attention to the formulation of Morritt LJ in the 2^nd sentence of paragraph 21 – "so involved as to justify treating them differently from the bystander with whom such a person was contrasted by Lord Reid". That suggests a different dichotomy – a "mere witness" or bystander on the one hand, and someone who is not a "mere witness" or bystander on the other. It does not build in some preconceived notion as to what factors produce the one result rather than the other.

The high point of Mr Tomlinson's argument, in terms of authority, was the case of R (on the application of Omar) v Secretary of State for Foreign & Commonwealth Affairs [2013] 3 All ER 95. The decision in this case was to the effect that the Norwich Pharmacal jurisdiction could be excluded, and was on the facts of that case excluded, where a statutory regime was inconsistent with it. However, having come to that conclusion, Maurice Kay LJ nonetheless embarked on a consideration of what would have happened if Norwich Pharmacal had not been excluded by statute. His judgment was agreed with by Lord Judge CJ and Stephen Richards LJ. Before expressing his agreement, Lord Judge referred to:

"The need for continuing flexibility in the development of Norwich Pharmacal principles" (page 99b).

In his judgment Maurice Kay LJ cited paragraph 57 of the Ashworth case set out above (referring to the need to prevent the jurisdiction being stultified). That is in general terms. However, at paragraphs 36ff he turned to the question of what was required for a respondent to a Norwich Pharmacal application to be sufficiently "mixed up" in the wrongdoing to allow the possibility of an order being made against him. At paragraph 38 of his judgment he said:

"38. It seems to me that there will be cases where there is a real difference between, on the one hand, involvement or participation and, on the other hand, facilitation. A person present and involved may be attempting to discourage or prevent the wrongful act rather than facilitating it. He may nevertheless become aware or come into possession of the very material which the applicant seeks. I do not think that the Norwich Pharmacal remedy was intended to be put beyond his reach in such circumstances. Support for this view can be seen in another passage in the speech of Lord Woolf CJ in [Ashworth at paragraph 35]. I detect no insistence on facilitation in this passage which, it seems to me, is part of the ratio in [Ashworth].

39. However, that is not the last word on the subject. Mr Eadie draws our attention to the recent decision of the Supreme Court in Rugby Football Union v Consolidated Information Services Ltd… in which Lord Kerr (with the concurrence of Lord Phillips, Lady Hale, Lord Clarke and Lord Reid) founded (at [14]) his exposition of the law on the speech of Lord Reid in the Norwich Pharmacal case, including the "facilitation" passage. However, the issues in that case required no analysis of the difference between "involvement" and "facilitation" and it seems to me that Lord Kerr's judgment did not, and was not intended to, have in mind the approach in [Ashworth]. Moreover, Lord Kerr went on (at [15]-[17]) to emphasise "the need for flexibility and discretion in considering whether the remedy should be granted" and that "the essential purpose of the remedy is to justice". His language was inconsistent with an intention to impose a more demanding test."

Mr Tomlinson points to these dicta (which he accepts were obiter) as indicating that the express requirements for the exercise of the Norwich Pharmacal jurisdiction are sufficiently flexible as to justify the order of the relief in the circumstances of the present case. They justified modifying the requirement of participation or facilitation by including the degree of "involvement" that the MPS have in the present case. Otherwise there would be the sort of stultification that the courts have indicated should not occur. Miss Rose does not accept that Maurice Kay LJ was right in saying that facilitation as such was not necessarily required, but even if he was right then his example of someone trying to stop the wrong was still an example of someone involved in the actual wrongdoing, so the statements of Maurice Kay LJ did not take the law so far as to encompass the activities of the MPS in the present case.

Conclusions on the availability of Norwich Pharmacal relief

In considering this question I remind myself of the relevant facts in relation to this area of the debate and make the following findings:

(a) The MPS have documentary material which reveals facts which go the question of whether individuals engaged by NGN conducted phone hacking operations for the purposes of NGN, and the extent of such operations.

(b) That material is likely to be highly material to any civil claim brought by a complainant.

(c) A claimant is likely to have little or no material of his or her own to know whether there is any claim at all, much less the extent and strength of that claim.

(d) The MPS has acquired that material as a result of its inquiries, conducted as a result of its own public duties.

(e) Those inquiries were conducted long after the events to which they relate, and the MPS can in no way be said to have participated in any wrongs which were committed, or to have facilitated them.

(f) The MPS has perceived itself to be under some sort of obligation, the nature, extent and strength of which has not been conceded or articulated, to disclose to apparent victims of phone hacking that they have apparently been such victims, and to disclose some limited information without providing physical documentary versions of that information. Victims have been allowed to peep into the room, but then the door has been shut and they are left only with such recollections or notes as they have of such limited view as they were given.

(g) Mr Beer QC for the MPS was careful about accepting what the obligation was, or that it was indeed an "obligation" but it is plain that it perceives there is something akin to an obligation from what was said at this hearing and what was said in the order and in the open statements on settlement of the case of Lord Prescott (and others). This is, in my view, highly significant in this case. The significant elements of the Prescott settlement material are set out above.

(h) The information available to the MPS is information without which the victims cannot be expected to mount a claim and take it to trial. The victims might be able to plead a claim, but no substance is available to them.

(h) Limited parts of the information, but only very limited parts, might be available from NGN, but I find that even with those limited parts the victims would have only a few odd pieces of the jigsaw, with all the really relevant pieces being held by the MPS.

(i) The MPS has accepted that, subject to an order of the court being made, this is material which it is prepared to make available, and it does not oppose its being made available. If it were not for the intervention of NGN, a Norwich Pharmacal order would be proposed without any opposition from the MPS and, very likely, made.

In those circumstances it is not difficult to come to the conclusion that, as evidential material, the material which the MPS is prepared to make available is material that would be appropriately sought under a Norwich Pharmacal order. It is not all material going to the identity of the alleged wrongdoer (though part of it does go to that point in terms of the individuals involved). It is material going to the existence and extent of the wrong, and its proof. It is not available elsewhere (for the most part). In those circumstances it is capable of being Norwich Pharmacal material, and apart from some submissions as to whether it was necessary to get parts of the material which NGN also has (which, as I have said, is only a small part) the submissions of Miss Rose did not really contest this point. Her submissions really went to the point indicated above, namely whether the engagement (to use a neutral term) of the MPS with this information was within the Norwich Pharmacal test.

If a participation or facilitation test were the sole test, incapable of expansion, Miss Rose would be correct. However, I do not think that it is the sole test. It is true that the traditional formulation of the test is in such terms, but that is because those are the usual circumstances in which someone becomes something beyond a mere witness. On the facts of the cases where orders were made, the respondent was usually in that position. In my view the answer to the question lies in recognising that what the cases are doing is contrasting two things – the mere witness on the one hand, and the a person who is not a mere witness on the other. On the cases the latter class is generally described in terms of participation/facilitation, as though that were the opposite of being a mere witness. But the real analysis lies in appreciating that the courts are holding not that those factors are indeed the other side of a dichotomy, but that those factors prevent the respondent from being a mere witness. Once that is recognised then it becomes relevant to consider whether there are other facts, short of participation/facilitation, which could prevent a person from being a mere witness. That question has not arisen in the cases in terms, but since the real question is the scope of the mere witness rule it is relevant to consider that particular question. It has been made to arise in the present case because of its unusual facts.

This analysis is not heretical. It is, in my view, correct as a matter of logic and, when properly read, quite consistent with the case law. It is not inconsistent with the cases which set out the apparently narrower test, because the issue which now arises did not arise in those cases. It is consistent with the following aspects of the authorities:

(a) The recognition of the need for flexibility referred to by several judges and remarked on above.

(b) The reasoning of Lord Woolf in Ashurst on the actual facts of that case. I have drawn attention to the fact that he found that the publication by itself was a sufficient involvement, even if MGN had not been a tortfeasor in its own right. That is a degree of conduct at least one stage removed from facilitation, or involvement in the original wrongdoing.

(c) The proposed inclusion by Maurice Kay LJ of the person who neither participates nor facilitates, but who tries to prevent. I accept that such a person may be "involved", to use the third word, but that has already moved away from the narrower test which Miss Rose really espouses. Such a person is apparently not a "mere witness", and one can see why, and that demonstrates that the real question is whether the engagement is sufficient to move the person away from that status, not whether he has acquired some other pre-prescribed label.

I therefore turn to consider the relevant question which is not whether the MPS have participated in, or facilitated, or been involved in the actual wrongdoing in this case. It is whether the MPS is a mere witness (or metaphorical bystander) or whether its engagement with the wrong is such as to make it more than a mere witness and therefore susceptible to the court's jurisdiction to order Norwich Pharmacal disclosure.

The answer to that question is, in my view, Yes. The MPS is not like someone who happens to witness an offending act and who thereby acquires relevant information. It is someone whose duty it is to acquire information about the offending act, albeit not for the benefit of victims. That may not by itself be sufficient – I do not have to decide that. What needs to be added is the fact that the MPS has actually provided information which, if a mere witness (bystander) it would not have had to have volunteered. It did so by informing victims that they were victims, and then disclosing a limited amount of information whilst informing them that there was more. It has also indicated that it did so as a result of some sort of unspecified obligation (or feeling that it ought to) and then agreeing, in principle, that it would not resist a formal claim for the information to a greater extent and in a more durable (and reliable) form. All those factors, when combined, mean that the MPS is not a mere witness.

In her opposition to the application of Norwich Pharmacal principles Miss Rose deployed a floodgates argument. She pointed to the number of bodies that had an information-garnering function, both public bodies like the police, prosecution authorities, and regulators, and private bodies such as employers who (for example) have to carry out inquiries into such matters as employment disputes if they are to be able to resist employee claims. She suggested that if the police's function as an investigating body who acquired information made them sufficiently involved for the purposes of Norwich Pharmacal, then all those other bodies would be similarly vulnerable, and the doors would be open to frequent Norwich Pharmacal applications which would be inappropriate.

I do not consider that those matters are a bar to the decision that I have reached for the following reasons:

(a) I do not proceed solely on the footing that the police's investigatory activities make them sufficiently involved to get past the relevant threshold question in Norwich Pharmacal. I think that the other factors I have referred to are significant. Those activities may be sufficient, and they are certainly relevant, but I do not decide the point on that footing.

(b) Even if the threshold were crossed it does not follow that there would be exposure to vast numbers of applications. It has to be remembered that one of the requirements of the exercise of the Norwich Pharmacal jurisdiction is that the material is necessary to the prosecution of the claim in the sense that the claim cannot be properly prosecuted without it. That is unlikely to be true in a lot of cases. It may be that the relevant body has information that is useful, but that is not sufficient.