Gray v News Group Newspapers Ltd and Another; Coogan v Same: ChD 25 Feb 2011

The claimants said that agents of the defendant had unlawfully accessed their mobile phone systems. The court was now asked whether the agent (M) could rely on the privilege against self incrimination, and otherwise as to the progress of the case. The claimant asserted that their claim was an intellectual property claim, allowing section 72 to disallow the privilege. The defendant argued that ‘commercial information’ should be construed narrowly. M had been convicted of conspiracy to intercept communications and had served a prison sentence. The claimants argued that the range of calls and messages received on the phones included much confidential information both commercial and private.
Held: The actions of M were covered by section 72, and the privilege was not available to him. The limitation in meaning suggested by the defendants was rejected. ‘the definition of ‘intellectual property’ must be strictly and purposively construed.’ but ‘ the words ‘commercial information’ must be construed ejusdem generis as contemplating: ‘information of the same type (ejusdem generis) as the other examples of intellectual property which are listed in sub-s (5)’.
‘ The law of confidential information is a particular and developing area. It is sometimes convenient to regard actions brought to protect commercially confidential information, know-how, trade secrets and the like as intellectual property claims. That does not mean they will be regarded as such for all purposes. Nor does it make it helpful to try to over-analyse the similarities and differences between confidential information and a species of traditional intellectual property like patents or copyrights, however academically interesting that exercise may be. Technical and commercial information will not always be regarded as being ‘intellectual property’, nor will actions brought to vindicate such rights always be regarded as ‘proceedings for infringement of rights pertaining to any intellectual property’. But when Parliament has said expressly that ‘technical and commercial information’ should be regarded as a species of ‘intellectual property’ for the purpose of the partial abrogation of the privilege, it seems to me that the courts should not construe the term almost completely out of existence.’
And ‘what Parliament was concerned to achieve was to remove the privilege where the action was a claim to protect commercially confidential information, as much as where it was in respect of the infringement of the traditional kinds of intellectual property.’

Vos J
[2011] EWHC 349 (Ch), [2011] 2 All ER 725, [2011] 2 WLR 1401
Senior Courts Act 1981 72, Criminal Law Act 1977 1(1), Regulation of Investigatory Powers Act 2000 1(1), Civil Procedure Rules 24.2.3
England and Wales
CitedA T and T Istel Ltd and Another v Tully and Others CA 15-Jan-1992
An order that the results of disclosure were not to be used in criminal proceedings was enough to protect the defendant. The privilege against self incrimination could be over-ridden in this way, even if that privilege should be lightly set aside. . .
CitedA T and T Istel Ltd v Tully HL 9-Sep-1992
The second plaintff had agreed to supply computer systems to a health authority. New owners of the company discovered allegations that the contract had been operated fraudulently. An order had been obtained for production of documents, but the order . .
CitedTchenguiz and Others v Imerman CA 29-Jul-2010
Anticipating a refusal by H to disclose assets in ancillary relief proceedings, W’s brothers wrongfully accessed H’s computers to gather information. The court was asked whether the rule in Hildebrand remained correct. W appealed against an order . .
CitedDouglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
CitedRank Film Distributors v Video Information Centre CA 1980
The plaintiff film companies accused the defendants of pirating their films. They obtained Anton Piller orders which required the defendants to permit the plaintiffs to enter their premises to inspect and remove any unauthorised films, and three . .
CitedSociedade Nacional de Combustatives de Angola UEE v Lundqvist CA 1990
Large quantities of crude oil had been sold at an undervalue by a dishonest consultant and his associates. A Mareva injunction had been granted. The defendant objected to being required to disclose the extent of his foreign assets saying that such . .
CitedPhipps v Boardman HL 3-Nov-1966
A trustee has a duty to exploit any available opportunity for the trust. ‘Rules of equity have to be applied to such a great diversity of circumstances that they can be stated only in the most general terms and applied with particular attention to . .
CitedRio Tinto Zinc Corporation v Westinghouse Electric Corporation, Re Westinghouse Electric Corpn Uranium Contract Litigation MDL Docket No 235 (No 2) HL 1977
The court considered a claim that a party was not compelled to give evidence where it might incriminate him: ‘No one is bound to furnish information against himself. It [the common law] says: ‘If a witness claims the protection of the court, on the . .
CitedAttorney-General v Guardian Newspapers Ltd (No 2) (‘Spycatcher’) HL 13-Oct-1988
Loss of Confidentiality Protection – public domain
A retired secret service employee sought to publish his memoirs from Australia. The British government sought to restrain publication there, and the defendants sought to report those proceedings, which would involve publication of the allegations . .
CitedRegina v Edmundson 1859
Lord Campbell set out the principle of interpretation known as ‘ejusdem generis’ to the effect that ‘where there are general words following particular and specific words, the general words must be confined to the things of the same kind as those . .
CitedFraser and others v Oystertec Plc and others 3-Nov-2009
The court considered the meaning of ‘real’ prospects of success: ‘This does not mean that a party can successfully resist summary judgement by suggesting, like Mr Micawber, that something may turn up to save him, though he does not know what: see . .

Cited by:
At First InstancePhillips v Mulcaire SC 24-May-2012
The claimant worked as personal assistant to a well known public relations company. She alleged that the defendant had intercepted telephone message given by and left for her. The court was asked first as to whether the information amounted to . .
Appeal fromCoogan v News Group Newspapers Ltd etc CA 1-Feb-2012
The claimants said that their voicemail accounts had been hacked by one defendant on behalf of the other. They sought discovery of records, and the defendants argued for the benefit of the privilege against self incrimination.
Lord Neuberger MR . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Intellectual Property, Information, Media, Litigation Practice

Updated: 31 October 2021; Ref: scu.430232