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

As I have noted, in schedules to her witness statements, Ms Richmond has identified broad categories into which fall Associated’s objections to the parts of the Particulars of Claim targeted in the strike out application and the amendments sought by the Claimants which are opposed.

It is convenient here to summarise Associated’s position on these issues of principle and the Claimants’ summary response.

Relying on what I said in the July Judgment ([19] and [274]), Category (6) was an objection that the Particulars of Claim, even after amendment, continued to use language that extended the potential ambit of what was being alleged beyond the specific particulars given (e.g. by use of “including” or “an example”). The Claimants have accepted that such words must be struck out from the Particulars of Claim.

The Appendix to this judgment contains a table identifying the amendments sought to the Particulars of Claim and the parts sought to be struck out. I have removed from the table those to which objection is taken solely in Category (6) as the Claimants accept that these parts of the Particulars of Claim must be removed. Beyond that, the approach adopted by the Claimants to these applications has required me to rule individually on each amendment/strike out. My decision on each amendment is shortly stated in the final column in the table. Where it is necessary to explain the reasoning in more detail, I set out below the key reasons for the decisions I have made. This exercise has been time-consuming and frequently repetitive. A more focused and constructive approach by the Claimants would have saved a lot of time at the hearing and in terms of the time it has taken to write this judgment.

The guiding principle that I have applied is that it is potentially probative of the Claimants’ case on propensity if they can demonstrate that a Pleaded Journalist has been involved in one or more incidents of UIG. In that respect, the Claimants may rely upon incidents of UIG involving Pleaded Journalists at another newspaper. Consistent with the limits of what can be relied upon to establish propensity, what is required, however, is specific incidents not general allegations.

The propensity case against Pleaded TPIs is one step removed from the journalists. There is a corresponding need to keep this aspect of the case under strict control, otherwise it risks descending into a public inquiry as to what the various TPIs were doing generally, when this only has limited potential bearing on the issues to be resolved.

As a matter of principle, it is legitimate for the Claimants to seek to establish – if it be a matter of dispute – that the Pleaded TPIs were offering services which included UIG. In this area, however, it is important to limit the field of inquiry to what the Pleaded TPIs were engaged in UIG for Associated. It is necessary however for the evidence to establish a probability of UIG being used on any particular occasion, otherwise the evidence is equivocal. Many of the Pleaded TPIs carried out research/inquiries that was lawful at the relevant time. It is therefore necessary to focus on examples that are alleged to prove UIG, not the work of TPIs generally. Finally, the number of examples that can be given will be limited on case management grounds. As noted in the July Judgment ([106]), where other matters are relied upon to demonstrate propensity – “it is the cogency – rather than number – of the incidents relied upon that is likely to be key”.

Each Particulars of Claim includes a general allegation that Associated “targeted” the relevant Claimant and subjected each to UIG. In support of this general case, the Claimants rely on the existence of payments, often in cash or linked to “special” activities, as indicators of UIG. However, unlike phone hacking, such payments – even with these characteristics – do not in themselves prove UIG. At most, they raise a suspicion that UIG may have occurred.

If time and resources were unlimited, it might be possible to investigate each instance further to determine whether UIG took place. However, this would entail a vast and potentially unmanageable inquiry. The principles of proportionality and the overriding objective – see July Judgment [53]-[57] – require that time, cost, and resources be carefully considered in defining the scope of civil litigation. These principles also call for a pragmatic and realistic approach in a case of this scale. It is expected that the Claimants will exercise restraint accordingly. If they do not, the Court will intervene to impose appropriate limits.

In relation to this general case of ‘targeting’, the Claimants generally cannot specify what information was obtained (if any), by whom, for what purpose, or whether it was published. Therefore, the mere fact of a payment to and use of a TPI cannot, itself, establish UIG. While such payments may suggest that a Claimant was targeted, they do not amount to proof of UIG. It is UIG that must be established to support a civil claim.

Disclosure has now been provided. With the benefit of that disclosure, the Claimants have been able to allege further specific incidents of UIG. These specific allegations will be determined at trial. It is neither proportionate nor necessary – except in relation to a properly defined and limited propensity case – to conduct a broader inquiry into general targeting of the Claimants.

Finally, it is necessary to explain why I have refused to allow parts of the Claimants’ case that Associated has deliberately destroyed documents to form part of the case going to trial.

The amendments sought to Paragraphs 16A and 16B advance a contention that TPI payment records and emails held by Associated should have been retained, but have been destroyed. The Claimants contend that the alleged destruction of documents is relevant, potentially, to inferences that could be drawn as to what the documents would have shown and also to the deliberate concealment case advanced to defeat Associated’s limitation defence.

Neither of these provides a justification for the amendments sought. Payment records could only demonstrate the broad scale of the use of TPIs. In some instances, the documents may shed light on the sort of inquiries that were carried out. But this is all too speculative. The Court could not safely draw inferences of fact, relevant to each Claimant’s case, from the general destruction of these documents as to what they would have shown had they been available. As to the concealment case, the only documents the destruction of which could be relevant would be documents that relate to the causes of action relied upon by the Claimants. The destruction would have to be alleged to have been deliberate and for the purpose of concealing the facts relevant to the claims. The focus would therefore have to be upon those alleged to have been involved in the Pleaded Articles (or other incidents). As Associated argued, the Claimants’ pleading does not allege deliberate conduct, and does not identify the relevant individuals or allege the specific intent required for concealment under s.32(1)(b) Limitation Act 1980: see Potter -v- Canada Square Operations [2024] AC 679 [108]-[109]. The individuals within a company alleged to have done the relevant acts with the necessary state of mind must be identified: Duchess of Sussex -v- Associated Newspapers Limited [2020] EMLR 21 [48]-[49]. For these reasons, permission to amend to add Paragraphs 16A and 16B is refused.