KB-2022-003316 - [2025] EWHC 2573 (KB)

Various Applications that were resolved by the Court at the Second CMH required me to set out to determine the broad parameters of the litigation; what it does concern and what it does not. This judgment must be read in conjunction with the decision handed down on 11 July 2025 ([2025] EWHC 1716 (KB)) (“the July Judgment”) and I shall use the same definitions in this judgment. In Section E of the July Judgment, I set out my decision and reasons for resolving the various applications at the Second CMH. Importantly, before turning to the individual Applications, Section E(1) ([36]-[61]) set out my decisions as to the proper scope of the litigation. Those decisions were critical to the determination of several individual applications.

For example, I refused applications or strictly limited disclosure in support of the purely generic case. I accepted that disclosure should be given of material that might assist the Claimants to advance a case that a Pleaded Journalist had a propensity to use UIG. However, I held that [47]:

“Propensity evidence must be both relevant and probative. Showing that journalist A tended to use UIG cannot prove that journalist B did the same, unless there are very unusual circumstances. Further, Associated is a company, and it can only act through its staff or agents. Even if the Court were to make the finding – urged by the Claimants – that Associated ‘widely and habitually carried out or commissioned illegal or unlawful information gathering activities for the purposes of obtaining, preparing or furthering the publication of articles in its newspapers’ that would no help prove whether UIG happened in any specific case. The focus must be on the specific journalist or TPI involved in the Article or incident in question – not others who were not involved. So, the general claims made by the Claimants against Associated – even if they could be substantiated – cannot support their individual cases. That is also why I reject Mr Sherborne’s argument that proving the ‘scale of wrongdoing’ is relevant to resolving the Claimants’ claims.”

Paragraphs [36]–[61] of the July Judgment do not contain a case management decision. Rather, they reflect a legal determination applying the test of relevance to the scope of the litigation – specifically, what may or may not be established through propensity evidence. This constitutes the first stage of the analysis.

If the Court finds that propensity evidence is both relevant and admissible, it may yet exclude it on case management grounds. This is the second stage, where the Court assesses whether the burden of investigating and resolving the alleged facts is disproportionate to the evidence’s likely value: see paragraphs [48]-[52] of the July Judgment for further detail.

No party has sought to appeal the decisions made at the Second CMH consequent upon my decisions as to the proper parameters of the case. At this hearing the Claimants have, instead, invited me to “reconsider” what is described as my “proposed approach”. Although Mr Sherborne refused to confirm whether the Claimants contend that my earlier decision on the parameters of the litigation was wrong, the general thrust of his submissions on behalf of the Claimants was fundamentally to challenge these parameters, particularly in relation to the limits of propensity evidence.

I am doubtful that it is open to me to “reconsider” my earlier decision as to the proper parameters of this litigation – which logically would also require me to revisit whether I should make different orders for disclosure than were made on the previous occasion. Nevertheless, even if I could “reconsider” what was decided in the July Judgment, I am not persuaded that I should do so. I remain satisfied that it is the correct approach.

Mr Sherborne takes as his starting point the decision of the House of Lords in O’Brien -v- Chief Constable of South Wales Police[2005] 2 AC 534 as to the admissibility in civil proceedings of similar fact evidence.

In O’Brien, the claimant had brought a claim for misfeasance in public office and malicious prosecution against the Chief Constable of South Wales police. As part of his case, the claimant alleged that named police officers had been guilty of similar misconduct in other cases. The House of Lords held that the test of admissibility of similar fact evidence in a civil action was of relevance only, namely that the material to be adduced was potentially probative of an issue in the action. Where that test was met, the Judge with management of the litigation would then consider whether to admit the evidence, having regard to the overriding objective of achieving a just result through a trial process that was fair to all parties. The Court would assess the potential significance of the evidence in the context of the case as a whole, weighing its potential probative value against its capacity both to cause unfair prejudice and to increase disproportionately the length and complexity of the trial. The judge would not admit the evidence unless satisfied that its probative cogency justified any risk of prejudice and, where it concerned collateral matters, that it would not distract attention from the central issues.

Lord Carswell quoted (at [72]) with approval what Lord Denning had said about the admissibility of similar fact evidence in Mood Music Publishing Co Ltd -v- De Wolfe Ltd [1976] Ch 119,127:

“The admissibility of evidence as to ‘similar facts’ has been much considered in the criminal law... The criminal courts have been very careful not to admit such evidence unless its probative value is so strong that it should be received in the interests of justice: and its admission will not operate unfairly to the accused. In civil cases the courts have followed a similar line but have not been so chary of admitting it. In civil cases the courts will admit evidence of similar facts if it is logically probative, that is, if it is logically relevant in determining the matter which is in issue: provided that it is not oppressive or unfair to the other side: and also that the other side has fair notice of it and is able to deal with it.”

O’Brien decided that there was no special rule for admissibility of similar fact evidence in civil claims. To be admissible, the evidence had simply to be logically probative of an issue to be determined in the proceedings. So, in the police cases, evidence that a police officer had fabricated evidence on another occasion was admissible to seek to demonstrate a propensity on his/her part to do so. In turn demonstration of such a propensity was capable of providing evidential support that s/he had done so in the immediate case. O’Brienis not authority for the proposition that proving propensity for misconduct against employee A is logically probative of whether employee B is guilty of such misconduct. Mr Sherborne has not been able to identify an authority for such a proposition.

Applying the two-stage test from O’Brien, I have decided that proving that Journalist A has a propensity to use UIG cannot be probative of whether Journalist B had such a propensity. In other words, such a case falls at the first hurdle to be admitted as similar fact or propensity evidence; it is not logically probative. It is not necessary to consider whether the alleged propensity evidence should be excluded on case management grounds. In the example I have given, that stage is not reached.

I regard this as a clear – and straightforward – issue of principle. Mr Sherborne however has sought to rely upon decisions in the Mirror and News Group litigation as establishing a “practice” of admitting general evidence of misconduct of employees of the two newspaper groups. In the July Judgment, I explained why I did not derive much assistance from general comparison between this litigation and previous cases – see [38]. Undeterred, Mr Sherborne has, at this hearing, referred me to several decisions from these earlier cases. I have read the decisions carefully. For the reasons I shall explain briefly, I am not persuaded that these decisions assist me in resolving the proper limits of evidence of propensity. They are decisions on the particular facts of those cases in circumstances where the Court had permitted the ‘generic case’ to remain as a core part of the litigation.

In Gulati -v- MGN Limited [2013] EWHC 3392 (Ch), Mann J was considering the defendant’s application to strike out the generic case in a claim alleging phone-hacking. In [17], the Judge referred to and relied upon what Lord Steyn had said in O’Brien [4]-[5]. It is clear from [18] that the Judge was considering the particular phenomenon of phone-hacking, how it was done, and industry knowledge of the practice. Although the Judge did refer to “the ability and propensity” to hack phones, he did not consider the point that I have had to resolve as to whether proving that Journalist A had a propensity to hack voicemail messages is relevant to whether Journalist B did so. In summary, therefore, Mann J’s decision does not resolve the point.

Importantly, in the context of allegations of phone hacking, Mann J held ([21]) that it was “not of the essence of a claim… that the individual perpetrator has to be identified”, and he drew an analogy with a case where someone is run over by a van, the owner of which can be identified but the precise driver at the time cannot. Those cases are rather different. In phone-hacking, it was possible to demonstrate, principally by telephone records, that a particular mobile telephone voicemail was probably hacked, even if it was not possible to show by whom. The current case is different. Proof of the UIG alleged by the Claimants is not straightforward. A propensity case relied upon to seek to demonstrate that Journalist A used UIG on a particular further occasion requires a focus upon Journalist A, not others.

As to the importance of the ‘generic case’, Mr Sherborne has relied upon the judgment following trial in the Gulati case: [2016] FSR 12. Mann J observed that it was “plainly relevant to form some idea of [the] scale [of hacking]” ([37]), but as liability had been admitted by the defendant, that exercise was relevant only to damages. Mr Sherborne has also relied on later decisions in the continuing Mirror Group and News Group litigation: [2020] EWHC 341 (Ch) [12], [20] and [2020] EWHC 533 (Ch) [37]; 14 July 2020 (HC-2000-000004) [6]. None of those decisions resolves an issue of principle that assists me in this litigation. Again, and at the risk of repetition, this was different litigation, concerning different allegations, raising different issues, against different defendants. As that litigation moves into its second decade, the generic case appears to be an embedded and accepted feature in those claims. In this litigation, the role of the generic case is challenged by Associated, and it falls to me to decide its proper parameters.

Mr Sherborne also cited Fancourt J’s decision in Jeffries -v- News Group Newspapers Ltd [2021] EWHC 2187 (Ch) as to the importance of recognising that a claimant may need to assemble pieces of an evidential jigsaw to demonstrate that UIG was used on a particular occasion. The Judge said:

This is a particular decision in the context of ongoing litigation as to the scope of disclosure. It is difficult, therefore, to extract much by way of general principle. It does not deal with the point on propensity. But I see no tension between this approach and the approach I have adopted. I have held that evidence that tends to demonstrate that a Pleaded Journalist has a propensity to use UIG may, subject to any case management considerations, be part of the evidence (a piece of the jigsaw) upon which the Claimants rely to show that s/he did so on the disputed occasion. But each piece of the evidential jigsaw sought to be relied upon must itself be relevant and logically probative. If evidence is not relevant or probative it is not available as a piece of the jigsaw.

For the reasons I have expressed in the July Judgment [47], I am not persuaded that it can assist in the fair resolution of these claims to embark on the exercise of trying to establish the scale of UIG (if any) at Associated Newspapers, and whether it was “widely and habitually carried out”. Even if it were possible to do that, it would be an enormous exercise which, based on my conclusions as to the limit of what propensity evidence can prove, provides little if any assistance in resolving the Claimants’ individual claims. Quite simply, establishing whether UIG was widespread and/or habitual at Associated is the territory of a public inquiry. It is not necessary to determine that issue for the fair resolution of the Claimants’ claims.

In these civil claims, it is for the Claimants to demonstrate that they were victims of UIG in the ways that they allege. Subject to exclusion on case management grounds, the Claimants will be permitted to rely on any admissible and relevant evidence of propensity that they can advance against the particular individuals who were concerned with each Pleaded Article (or specific incident), but it is irrelevant to consider alleged wrongdoing wholly unconnected with the specific claims.

One of the planks of the Claimants’ opposition to Associated’s striking out application is that the generic case has been a feature of the pleaded case since the outset and that it is too late for Associated to seek to strike it out. I disagree. With the benefit of hindsight and now having specifically considered the issue, the way in which the ‘generic case’ has been pleaded and pursued in this litigation was always likely to obstruct the fair resolution of the claims. The fact that the implications of the generic case (and particularly the limits of what any propensity case can prove) are only belatedly coming into sharp focus, is not a justification for simply carrying on. Exercising the Court’s case management powers, and consistent with the principles I identified in the July Judgment ([53]-[57]), it is my duty to ensure that this litigation is confined within manageable and economic bounds. I shall do that by excluding from the case allegations which are not relevant and probative; by preventing the litigation from descending into an uncontrolled and wide-ranging investigation akin to a public inquiry; and by striving to manage the case to exclude peripheral material which is not essential to the just determination of the real issues between the parties and the examination of which would be disproportionate to its importance to those issues.