Culture, Media and Sport CommitteeAttachments

(JCP 1)

Pike, Julian

From:	Tom Crone
Sent:	24 May 2008 18:10
To:	Colin Myler
Cc:	Julian Pike
Subject:	strictly private and confidential and legally privlieged.
Attachments:	taylordoccopy.doc

There it is CoIin … as concise as I could do it. Julian is getting a copy. His tel no. is in last par of the memo and email address should be above.

(JCP 2–3)

Strictly private and confidential and legally privileged.

Gordon Taylor v News Group Newspapers Ltd

Background

1. In January 2007 News of the World Reporter, Clive Goodman and private detective, Glenn Mulcaire were sentenced to four and six months respectively for conspiracy to access telephone voicemail messages of three members of the Royal Household staff. Mulcaire also pleaded guilty to accessing the voicemails of five other famous people one of whom was Gordon Taylor, Chief Executive of the Professional Footballers Association (“the PFA”).

2. Mulcaire’s relationship with the News of the World went back to around 2000. Through one or other of his companies he had been contracted annually to supply a “research and information service” on an exclusive basis.

3. Gordon Taylor is the only one of the victims to issue civil proceedings (though the others could still do so). He is suing NGN Ltd and Mulcaire jointly for breach of confidence, misuse of private information and invasion of privacy. And alleges that acting in concert we accessed, listened to and recorded his voicemail messages from about January 2005 until May 2006.

4. Taylor served a full pleaded claim on us which did not seem to be supported by any evidence and we filed a defence denying any involvement in accessing or making use of information from his voicemails, Mulcaire, it seems, was never properly served with the Claim and until recently has played no part in the proceedings.

Current position

5. Unknown to us, a few months ago Taylor applied to and obtained from the court an Order obliging the Police to release the criminal prosecution paperwork and evidence to his lawyers. He obtained another Order obliging the Information Commissioner to release the evidence for his “What Price Privacy” papers on the unlawful trade in private information (these contain a “league table” of newspapers and Data Protection Act infringements).

6. Amongst the prosecution paperwork were the documents seized when they raided Mulcaire’s property, one of which was a contract dated 4 February, 2005, between Mulcaire and the News of the World to pay him £7,000 for information on an affair being conducted by Graham Taylor. Another was an email from a News of the World reporter to Mulcaire enclosing a large number of transcripts of voicemails from Taylor’s telephone.

7. Amongst the documents from the Information Commissioner is a list of named News of the World journalists and a detailed table of Data Protection infringements between 2001 and 2003 (this is based upon evidence seized in a raid on another private investigator who was subsequently prosecuted). A number of those names are still with us and some of them have moved to prominent positions on NoW and The Sun. Typical infringements are “turning round” car reg and mobile phone numbers (illegal).

8. This evidence, particularly the email from the News of the World is fatal to our case.

9. Taylor has now amended his pleadings to include this material and we have to file an amended Defence by 9 June. He has also finally served Mulcaire who also has the 9 June deadline.

10. Recognising the inevitable, I authorised our solicitors, Farrers, to make a formal offer to Taylor of £150K plus costs. We thought it unlikely he would take it but hoped it would open negotiations which would lead to a confidential settlement. The response from his solicitors is that he “is not interested in settling, it’s a matter of principle and he wants to take it to trial”.

Where we go

11. Our position is very perilous. The damning email is genuine and proves we actively made use of a large number of extremely private voicemails from Taylor’s telephone in June/July 2005 and that this was pursuant to a February 2005 contract, ie a five to six month operation. He has no evidence that the News of the World continued to act illegally after that but he can prove Mulcaire continued to access his mobile until May 2006 (because Mulcaire pleaded guilty to it).

12. We will be getting guidance from a senior QC next week about our next step. Inevitably this will be at the very least an admission of liability to a large part of the claim and an attempt to put Taylor under costs pressure by making a formal offer of substantial damages and his costs. He is claiming both ordinary damages and exemplary (punitive) damages and will succeed on both claims. This case will be expensive.

13. Mulcaire is likely to offer no defence and will have judgement entered against him. He wants us to indemnify him and I think we should. The damages awarded will effectively be against him and us jointly and we do not want Mulcaire fighting against us.

14. Julian Pike at Farrers is handling our case he’s on [REDACTED].

(JCP 4)

Pike, Julian

From:	Tom Crone
Sent:	24 May 2008 19:25
To:	Julian Pike
Subject:	FW: Festival Travel and Charlie Talbot

… in case it’s not clear it seems Talbot is nothing to do with us … the way it’s written couldn’t be a NoW journo anyway … it’s drivel.

From:	Tom Crone
Sent:	24 May 2008 19:23
To:	Julian Pike
Subject:	FW: Festival Travel and Charlie Talbot

Julian,

I went thru the new Taylor docs with [REDACTED] today. [REDACTED] now remembers the transcripts … he was given the story only at the end to do the showdown and write it up … Mulcaire had been dealing with Greg Miskiw for months on it before that.

I showed [REDACTED] the Charlie Talbot email … he had no knowledge of it but reckoned it was a wird Mulcaire angle to suggest a real source … Mulcaire did this project as something entirely self-initiated (something he did from time to time) and brought it in to us as a package for sale ... hence the separate contract.

Taylor was one of his fixations (he is an obssessive) … he was always claiming close contacts with the PFA … and hinting he knew Taylor … every year he would invite [REDACTED] to the PFA dinner and sort of hint he’d got the tickets from Taylor.

[REDACTED] went looking on internet for the Talbot email address … he found it in sec … it’s a travel agent in Haydns Rd, Wimbledon … then he looked for Charlie Talbot … he’s a Wimbledon AFC player … see websites below and on my next email.

You’ll have seen the memo I did for Colin M … he’s going to use it as the basis for his chat with Chief Exec James Murdoch … BUT he’d very much like us to get a view on next step and how much from our QC first … please report to him direct next week … and he has your mobile.

Tom

From:	[REDACTED]
Sent:	24 May 2008 17:31
To:	Tom Crone
Subject:	Festival Travel and Charlie Talbot

Festival Travel
http://www.britishservices.co.uk/travela/london/wimbledon.htm

Charlie Talbot
http://www.afcwimbledon.co.uk/players.php?squad+56&Psection_Id=3&Psub_section_Id=3&player_Id=1199&position=Defender

Charlie Talbot—do a search on this site for “Charlie Talbot” and you will see he is the “club journalist” and web designer for AFC Wimbledon
http://wwvv.surreyfa.co.uk/wImmag/apr04mag.pdf

(JCP 5–7)

Transcript of Pike Notes of Call with Colin Myler 27 May 2008

Spoke to James Murdoch
not any options—wait for silks view —

one result of Goodman—CG sprayed — around allegations. horrid process,—1E, NW + SK

Ross Hall, IE Associate Ed, GM, Mulcaire

didn’t believe culture in the newsroom—Editor
didn’t know a [indecipherable]

here investigation into IE, NW, SK

RH reporter—diligent reporter

Assurances — to PCC
 —" made by CM to staff
Les evidence to committee —
new contracts for emees + freelancers —
seminars —

info commissioner —

CM — my position as Editor—cannot ignore
it—back to CG + — appealed agst his sacking
failed to give direct evidence.—had to be seen
new editor cldn’t be seen to dismiss their
allegations —

have email from member of staff

[NEXT PAGE]

Les no longer here—James wld say get rid
of them—cut out cancer

(JCP 8)

Record of Attendance

Client:	NGN
Matter:	Taylor
Date:	3 June 2008
Ref:	JCP/kp

JCP telephoning to speak to Mark Lewis

Told he was on holiday. Leaving a message for Jessica Kraja to call.

Attending JK on her calling back

Speaking without prejudice. Said that we were about to send a further Part 36 Offer in the sum of £350,000. We were very comfortable that this would not be beaten by the Claimant if this matter were to proceed to trial. However, there was an opportunity to resolve this matter now and the client was willing to pay something more—not a stratospheric amount—to resolve it this week on the basis that drew a line in the sand and that the deal was confidential.

Said that we appreciated it might be sensible from Taylor’s point of view if Mark Lewis was back from holiday and we thought in those circumstances, it might be sensible to agree an extension of say 7 or 14 days for service of the Amended Defence. JK said she would speak to Mark Lewis.

(JCP 10)

Transcript of Pike Notes of Call with Mark Lewis 6 June 2008

£1.2m confidentiality
Apart—[“5” or “s”]

Mark Lewis
Don’t know if that is a [indecipherable]
7 figures not to open his mouth
be vindicated or rich
paid £1 million all costs
indemnity costs 200k inc barrister + VAT —      

He won’t be beat

advised not be casual not at risk any
more—j might think been generous
I want to carry on because of issues
because NGN is wrong then carry on
one way or another this is going to hurt —

want to show NoW stories—NoW
doing this—rife in organisation—Palt
enquiries told this not happening when it was
I want to speak out about this.

(JCP 11)

Record of Attendance

Client:	NGN
Matter:	Gordon Taylor
Date:	6 June 2008
Ref:	JCP/ny

JCP telephoning Mark Lewis and leaving messages for him to call

Subsequently attending Mark Lewis.

Said that JCP had sent across a part 36 letter in the sum of £350,000. Said there might be a little bit on the table if a confidentiality deal could be agreed. ML said that he had not spoken to his clients in the last couple of days about precisely what he wanted, but from early discussions, he had clearly been of the view that he wanted seven figures not to open his mouth. He wanted to be vindicated or made rich. As well as £1 million, he wanted all his costs being paid. ML said that his costs were approximately £200,000 including counsel’s fees plus VAT.

Said that there was no prospect of his client beating the £250,000 in court. ML confirmed that he had advised his client that he was no longer casually not at risk with the £350,000 paid in. The judge might think he was being generous towards Taylor with any award that still falls short of the money in court.

ML said that Taylor wanted to carry on because of all the issues surrounding what NGN had done. One way or another, this was going to hurt NGN. Taylor wanted to show that the News of the World stories had been illegally obtained. He wanted to demonstrate that The NOW had been doing this and that it was rife in the organisation when The NOW had been making public statements including statements in parliament telling them that they were simply a rogue trader. Taylor was not happy about this. He wanted to speak out about all of this.

Said we thought there was little point in Taylor proceeding to a trial. He was not going to be vindicated by going to trial and failing to beat the payment in court. Did he really want to face the prospect of having to pay or not receiving full payment because he wanted to proceed not withstanding the money on offer. ML said that his client was quite aware of that possibility. He wanted to push it.

Asked about extending time for service of the defence. We thought it would be helpful to both sides if an opportunity could be given to resolve this matter during the course of next week. We were probably looking to put the defence back until Friday. ML said he would take instructions.

(JCP 13)

Transcript of Pike Notes of Call with Tom Crone 10 June 2008

Tom
Mtg with JM + CM
JM sd he wanted to think through options

CM moving towards to tell Taylor to fuck off
on the end of drip drip—do a deal with them —
paying them off + then silence fails —
if intriguing progress —

GM in more deeply—if damages award
admitting liability—be in jointly for
+ if he is

(JPC 14-19)

FARRER&CO

Report Date & Time: 21/10/2011 10:22:36

Client Details

New Group Newspaper Ltd

Matter Details

Gordon Taylor

Client Partner

JCP Pike, Julian

Team

Media Disputes

Opening Base Time Balance

0.00

Billed Time Balance

Opening Base Value Balance

0.00

Billed Value Balance

BILLED TIME DETAIL REPORT BETWEEN 24/05/2008 AND 10/06/2008

Date	Fee Earner	Details	Charge Type	WIP Status	Bill Number	Rate	Special Rate	Hours	Base Value	To Bill Value	Billed Value	Cum Time	Cum Value
27/05/2008	JCP	Pike, Julian General call to c mylr’s office (6 mins); call from c myler (18 mins); call to george davies office (6 mins);	C	B				1.00
28/05/2008	JCP	Pike, Julian Phone In c myler	C	B				0.50
02/06/2008	JCP	Pike, Julian Phone Out m silverleaf	C	B				0.30
02/06/2008	JCP	Pike, Julian General considering counsel’s draft advice, making amends and emailing m silverleaf	C	B				0.90
03/06/2008	JCP	Pike, Julian Letters In m silverleaf in and out						0.20
03/06/2008	JCP	Pike, Julian Phone Out jessica kraja w/p	C	B				0.10
03/06/2008	JCP	Pike, Julian Phone In call j kraja w/p	C	B				0.10
03/06/2008	JCP	Pike, Julian Phone In tgc (12 mins);	C	B				0.60
03/06/2008	JCP	Pike, Julian Letters Out emails tgc and m silverleaf	C	B				0.30
06/06/2008	JCP	Pike, Julian General w/p call m lewis (6 mins); call to m lewis re extension (6 mins);	C	B				1.10
10/06/2008	JCP	Pike, Julian General call with t crone; emails to t crone	C	B				1.70
10/06/2008	JCP	Pike, Julian Phone In tgc post meeting with j murdoch	C	B				0.20

(JCP 20–26)

Opinion

Introduction

1. My client, News Group Newspapers Limited (NGN) is the defendant to proceedings brought by Gordon Taylor, the chief executive of the Professional Footballers Association (PFA). NGN is the publisher of both The Sun and the News of the World. Mr Taylor was one of a number of prominent individuals whose mobile telephone voicemails were illegally accessed during 2005 and 2006 by Glenn Mulcaire, a private investigator contracted to NGN to carry out research. In November 2006 Mr Mulcaire pleaded guilty to a charge of illegal access to Mr Taylor’s voicemail and a number of similar charges. On 27 January 2007 he was sentenced to a period of two months’ imprisonment on this charge to run concurrently with sentences for four other similar charges and consecutively to a sentence of four months’ imprisonment on a charge of conspiracy to access the voicemails of three members of the Royal household. At the same hearing the then Royal editor of the News of the World, Clive Goodman, was sentenced to a period of four months’ imprisonment on the conspiracy charge.

2. In his action Mr Taylor claims that the accessing of his voicemail messages was a breach of confidence, a misuse of private information and an invasion of privacy. He brings claims against both NGN and Mr Mulcaire. Mr Taylor claims an injunction and damages for these wrongful acts together with delivery up of any material embodying information obtained from the illegal accessing of his voicemails in the possession of either defendant. Mr Taylor also complains that NGN has failed to deal properly with a data subject access request under the Data Protection Act 1998. He seeks an order that NGN complies with the request.

3. At the outset, NGN’s response to the claim was to deny liability on the basis that Mr Mulcaire was acting on his own initiative in accessing Mr Taylor’s e-mails and that accordingly NGN was not responsible for anything that he did. The position has now changed. In January this year, Mr Taylor obtained orders against the Metropolitan Police and the Information Commissioner for disclosure of information relating to the accessing of his voicemail messages. The material obtained from the Metropolitan Police has disclosed that at least three NGN journalists (Greg Miskiw, [REDACTED], and Ross Hindley) appear to have been intimately involved in Mr Mulcaire’s illegal researching into Mr Taylor’s affairs. The disclosure from the Information Commissioner comprises material obtained by the Commissioner during an enquiry called Operation Motorman into the practices of journalists in seeking Information from enquiry agents which, on the face of it, required illegal access to data sources.

4. The results of the third party disclosures have been very damaging to NGN. It seems clear that Mr Mulcaire was specifically asked to look into certain activities by Mr Taylor, in particular, whether [REDACTED].There is a document dated 4 February 2005 and signed by Mr Miskiw on behalf of the News of the World, agreeing to pay Paul Williams £7,000 on publication of a story concerning [REDACTED] based on information provided by Mr Williams. Paul Williams is known to be an alias used by Mr Mulcaire. There are transcripts of a number of Mr Taylor’s voicemails and also of [REDACTED] voicemails made, or at least collated into an e-mail, by Mr Hindley. There is a draft article (which may have been written by [REDACTED] under a pseudonym although I understand [REDACTED] disputes this) based upon the contents of these voicemail messages disclosing [REDACTED] both of whom are identified by aliases.

5. As an aside, the information obtained by Mr Mulcaire, establishes to a high degree of likelihood that [REDACTED]. This, however, is irrelevant. [REDACTED] there is no public interest (as opposed to [REDACTED] in its exposure. In particular, there is no overriding interest in its disclosure which could possibly justify the use of unlawful means to obtain information about it.

6. In the light of these facts, it seems to me, as it seems to both my instructing solicitors and junior counsel, that NGN’s prospects of avoiding liability for the claims of breach of confidence and invasion of privacy made by Mr Taylor are slim to the extent of being non-existent. NGN must be vicariously liable for the conduct of its employees unless they were acting on a frolic of their own. The latter claim appears on the information now available to be impossible to establish. There is overwhelming evidence of the involvement of a number of senior NGN journalists in the illegal enquiries into [REDACTED]. In addition there is substantial surrounding material about the extent of NGN journalists’ attempts to obtain access to information illegally in relation to other individuals. In the light of these facts there is a powerful case that there is (or was) a culture of illegal information access used at NGN in order to produce stories for publication. Not only does this mean that NGN is virtually certain to be held liable to Mr Taylor, to have this paraded at a public trial would, I imagine, be extremely damaging to NGN’s public reputation.

7. I should at this point mention that when Mr Mulcaire was sentenced for the offences noted above, it seems to have been accepted by the prosecution and the court that his contract with NGN to provide research services was for legitimate activities and a confiscation order was made only in relation to additional cash payments made to him by Mr Goodman for the particular activities relating to the members of the Royal Household. The recently disclosed information seems to throw that acceptance into considerable doubt: if the trial proceeds, there would seem to be little doubt that Mr Taylor’s case will be advanced on the basis that Mr Mulcaire was specifically employed by NGN to engage in illegal information gathering to provide the basis for stories to appear in NGN’s newspapers. I would not imagine that NGN wishes this kind of allegation to be given any more publicity than is inevitable from the bringing of the claim.

8. In these circumstances I have been asked to provide advice on the likely quantum of damages and on tactics for dealing with Mr Taylor’s claim.

Quantum

9. Mr Taylor claims both aggravated and exemplary damages for the torts of which he complains. The pleadings set out in some detail the basis for these claims. They include the sensitive private nature of the information on his voicemails, the fact that his work requires that many well-known individuals and people in positions of influence and power are able to trust him and treat his voicemail as entirely confidential, the hurt to his family and friends on discovering that their private words have been accessed, the increased difficulty Mr Taylor has experienced in doing his job now that his voicemail is not trusted and other similar matters.

10. To support the claim for exemplary damages, it is expressly pleaded that NGN calculated that the profits to be obtained from illegal access to voicemails outweighed any loss and damage that Mr Taylor might recover and that NGN ought accordingly to be “financially punished for the improper and grossly offensive acts of its journalists and persons that it engages to carry out such acts” (Amended Particulars of Claim paragraph 50(8)).

11. It seems to me to be dear, first, that on the current state of the authorities, both aggravated and exemplary damages are available to Mr Taylor. Reference to the speeches in the House of Lords in Rookes v Barnard ([1964] AC 1129) and the subsequent consideration of that case in more recent authorities such as Kuddus v Chief Constable of Leicestershire ([2002] 2 AC 122) makes it plain that both kinds of damages are in principle capable of being awarded in appropriate circumstances in a claim for breach of confidence. Exemplary damages are only available where “the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff” (per Devlin J in Rookes v Barnard at 1226).

12. It also seems clear that the nature of the wrongs complained of by Mr Taylor and the conduct by NGN’s journalists makes it almost inevitable that the court will wish to mark its disapproval of their activities by awarding an enhanced level of damages. The accessing of Mr Taylor’s and [REDACTED] voicemails was not only illegal but will be seen as immoral and repugnant by any judge who is likely to hear the action. Gross J, who sentenced Mr Mulcaire, described it as “the lowest of the low” and his reaction may be considered typical.

13. Whether the enhanced award of damages is constituted by aggravated or exemplary damages may be thought to be academic, but it is important to remember that they are different in principle. Aggravated damages are by way of compensation for increased levels of hurt to the claimant. Exemplary damages are unique to the common law and are expressly designed to punish the defendant. Lord Devlin in his speech in Rookes v Barnard made it clear that he regarded exemplary damages as entirely exceptional and to be confined within moderate limits. At 1227–8 he made the following instructive comments:

“the power to award exemplary damages constitutes a weapon that, while it can be used in defence of liberty, as in the Wilkes case, can also be used against liberty. Some of the awards that juries have made in the past seem to me to amount to a greater punishment than would be likely to be incurred in the conduct were criminal; and, moreover, a punishment imposed without the safeguard which the criminal law gives to an offender. I should not allow the respect which is traditionally paid to an assessment of damages by a fury to prevent me from seeing that the weapon is used with restraint.

…

In a case in which exemplary damages are appropriate, a Jury should be directed that if, but only if, the sum which they have in mind to award as compensation (which may, of course, be a sum aggravated by the way in which the defendant has behaved to the plaintiff) is inadequate to punish him for his outrageous conduct, to mark their disapproval of such conduct, and to deter him from repeating it, then it can award some larger sum.”

It seems clear that Lord Devlin at least envisaged that awards of exemplary damages would be likely to be made only in cases where aggravated damages were also awarded and that, in such cases, a relatively modest uplift to the aggravated damages should be given. My researches have not (yet) found any more recent cases in which this approach has been doubted. However, whilst this principle is easy to state, its application to the present case is fraught with difficulty and uncertainty.

14. It is also clear that Lord Devlin was alert to the risks inherent in imposing a punishment on a defendant without the safeguards of the criminal law. Such risks are all the greater where the conduct is in fact criminal and the defendant has either been prosecuted and therefore punished already or has not been prosecuted at all. It seems to me to be at the very least arguable that exemplary damages ought not to be awarded in such cases. The relevant prosecuting authorities have already considered the facts and brought the charges they considered appropriate in the circumstances. The appropriate criminal defendants have been punished to the appropriate extent. No further punishment is justifiable. I propose, nevertheless, to proceed on the basis that exemplary damages may be awarded in this case. In doing so, I shall adopt Lord Devlin’s approach and take it that they are likely to represent a relatively small uplift on any aggravated damages awarded.

15. The starting point for assessment of damages in this case is that Mr Taylor has suffered no apparent financial loss or special damage. The damages to be assessed are general damages for the hurt he and those around him have suffered as aggravated by the wickedness of Mr Mulcaire’s and NGN’s conduct. Damages are therefore at large and will in my view be assessed by the judge as a round sum aiming at an overall figure which the judge thinks represents a reasonable assessment of the size of the sum which should be given to reflect the gross and illegal intrusion into Mr Taylor’s private and professional life and the defendants’ motives in making this intrusion.

16. There are no precedents for awards of damages in such cases and analogies with other causes of action are unhelpful. Damages in libel cases reflect the effect of the publicity given to the false allegations. Here there was none. Damages in a conventional breach of confidence case reflect either the commercial value of the information or the personal hurt its exposure has caused. Here again, there is no exposure save to the extent that Mr Taylor establishes that the way his friends, family and colleagues behave towards him has changed. The reality is that such evidence is likely to establish little alteration in patterns of conduct save possibly for a short period after Mr Mulcaire’s activities became public. Accordingly, any rational assessment of damages leads to a relatively small sum. I share with my instructing solicitors the view that such a conclusion is improbable. The court is bound to wish to mark its disapproval of the defendants’ conduct by awarding a substantial sum by way of damages.

17. In these circumstances it is impossible to arrive with any certainty at the likely level of damages which will be awarded. My view is that the court might award a sum at any level from £25,000 to £250,000 or possibly even more, although I think this extremely unlikely. My best guess is that the award will be either about £100,000 or about £250,000 depending upon the personal reaction of the judge who hears the claim. These are to my mind the sorts of figure which are likely to commend themselves to a judge trying to reflect both disapproval and deterrence. Regrettably, I do not see how one can provide any more precise assessment at this stage.

Tactics

18. I do not think that the level of damages at which a judge will ultimately settle can be predicted with any certainty. It follows that all my client can do is make commercial calculations about the risks and benefits of adopting any particular position. It is therefore necessary to consider whether the claimant will settle if offered enough money or whether he wants his day in court (as he now says although did not originally). It is also in my view necessary to consider the extent to which admissions of liability can or should be made both to minimise NGN’s attempt to defend a claim the court will consider indefensible and to minimise the likelihood of harmful publicity.

19. I have specifically been asked to advise whether the present Part 36 Offer of £150,000 should be increased. In my view it probably should unless NGN is prepared to risk some form of public trial although I recognise that this is a very finely balanced decision and it might be sensible at least to defer an increased offer until the defence has been amended as I suggest below. Mr Taylor originally indicated that he would settle for £250,000 plus costs. If the offer is increased to that level, he may take it. If he does not, NGN is no worse off than it is now. If Mr Taylor changes his mind later and wishes to accept the increased offer, then we can negotiate the terms and the problem will have gone away. If he does not, then the claim will have to be litigated to some extent, subject to what follows, just as it will now. The alternative of leaving the offer as it stands exposes NGN to the risk that the court will ultimately settle on a higher figure. Whilst this may be relatively unlikely, I can see very little downside (save an additional exposure of £100,000) to protect itself from that risk.

20. When I first read my instructions, my immediate reaction was that NGN should submit to judgment on liability (except possibly in relation to the Data Protection Act claim as to which I do not at present have enough information to assess its merits), On reading the Amended Particulars of Claim, however, it seemed to me that total acceptance of the allegations made was likely to be difficult. It may therefore be the case that NGN can only make limited admissions. It seems to me that it is obvious that this should be done at the earliest opportunity if only to minimise the extent to which allegations which are obviously going to be accepted by the court are challenged by NGN.

21. In the limited time available I have not been able to form a clear view as to the extent of the admissions that can reasonably be made. My approach, however, would be to endeavour to make sufficient admissions to ground liability and to offer to submit to judgment on the basis of such admissions. That would place Mr Taylor in the position of having to decide whether to press on with the more extensive allegations or to accept that liability is established on the basis of the admissions made. If he chooses to press on, his costs will be increased. If a larger offer has been made, he is then at even greater risk on costs because he will have to establish not only liability but also the truth of the more extensive factual allegations and that they increase the extent of liability to justify a claim to costs from now on.

22. I would therefore strongly recommend that NGN amends its defence in response to the Amended Particulars of Claim to make sufficient admissions to enable it to admit liability and offer to submit to judgment on those admissions. The precise extent of the admissions will need very careful consideration.

23. There will also be significant further tactical decisions to be taken very shortly. I consider that to address these with a basic approach has been decided is premature and complex. For example, one will need to consider further disclosure and the appropriate approach to evidence in the light of the admissions. That cannot realistically be done until the extent of the admissions has been determined.

24. I trust that this advice is sufficient to enable my instructing solicitors and client to decide how best to proceed. I appreciate that this advice requires a number of difficult decisions to be taken and that the correctness of those decisions may be very difficult to determine. I am more than happy to discuss any points arising from this advice and to consider any consequential issues whenever convenient. Finally, I should note that since I wrote this opinion yesterday I have been asked two further questions. Those questions are answered in an e-mail this morning and this opinion should be read in conjunction with the comments in that e-mail.

Michael Silverleaf QC

3 June 2008

(JCP 27)

THE NEWS OF THE WORLD undertakes not to publish any information/pictures supplied by PAUL WILLIAMS in connection with [REDACTED] PFA Chief Executive Gordon Taylor.

The News of the World agrees to pay a minimum sum of £7,000.00 on publication of the story based on Information provided by Mr. Williams. This figure will be re-negotiable on the basis of prominence given to the story.

Signed............

Dated: 4 February 2005

(JCP 28–29)

… paragraph 9.2 to Mr Myler’s evidence that “Burton Copeland were given ‘every financial document which could possibly be relevant’ to the paper’s dealings with Mulcaire and they confirmed that ‘they could find no evidence from these documents or their other enquiries which suggested complicity by The News of the World or other members of its staff beyond Clive Goodman in criminal activities’”.

18. The Firm draws attention to this evidence because it indicates that there has been some confusion in the mind of Mr Rupert Murdoch, or perhaps that he has been misinformed, about the role of the Firm. As stated above, his account of the instructions to the Firm were that it had been retained “to find out what the hell was going on”.1 It is quite (clear that that is not what the Firm was instructed to do. But the evidence above suggests that Mr Rupert Murdoch may in fact have been thinking of the Instructions given to Burton Copeland.2 Given that News International has waived privilege over its instructions to and advice from the Firm, the CMSC might consider asking News International similarly to waive privilege over its instructions to and advice from Burton Copeland.

Privilege and Confidentiality

19. It has been suggested that if the Firm had found evidence, in the course of its retainer by News International, of criminal offences having been committed by News International executives, then the Firm would have been entitled (or oven obliged) to report its findings directly to the police. The Firm wishes to explain the correct position, as to which the law is clear.

20. When a client consults a lawyer to take advice in a relevant legal context, then what the client tells the lawyer is subject to legal advice privilege. This means that the lawyer Is obliged to keep what he or she learns about the client’s affairs in the course of the retainer completely confidential, unless and until the client decides otherwise. (It is for this reason that it has been so difficult for the Firm to provide this response to the Committees.) We have set out in Appendix C a summary of the relevant law.

21. Even if, therefore, some emails reviewed by the Firm had been suggestive of criminal conduct by employees of News international, then the Firm could not possibly have reported this to the police without client consent. That would have been against the Firm’s obligations under clear modern law of the highest authority and a very serious breach of professional conduct. Further, neither common law, statute or regulation imposed any relevant obligation on the Firm to break its duties of confidence by reporting to any external authority. Criticism of the Firn for failing to report News International to the police or any other external body is therefore wholly misplaced, regardless of what the emails do or do not show.

What happened to the file

22. It has been suggested in some quarters that it is surprising that it took until April 2011 for the Firm’s file on this matter to have come to light. We therefore think it would be of assistance to the Committees to understand what happened.

(a)Once the Firm’s letter had been issued on 29 May 2007, the retainer came to an end.3 The Firm issued its bill on 13 June 2007, and News International paid it on 31 July 2007. The file went into archive storage with an external storage company, Restore, on 10 November 2008.4

(b)One by one, all those who had been involved in the retainer left the Firm in the normal course of events, as set out above. After the last member of the junior reviewing team left on 28 January 2011, there was literally no one left at the Firm who had had any involvement in the original retainer at all.

(c)The first time that the Firm’s 2007 involvement was mentioned to Parliament, so far as the Firm can ascertain, was in the evidence given to the CMSC leading to its Second Report dated 24 February 2010. The Firm’s name was not mentioned in oral evidence, but was mentioned In written evidence and this was recorded in the appendices to the Second Report (which also quoted in full the letter of 29 May 2007). The letter …

(JCP 30–32)

APPENDIX C

Legal Professional Privilege

1. The privilege belongs to the client, not the lawyer. This is absolutely clear on the law. The lawyer has no power to decide what is and is not released from privilege; only the client can do this. In fact, the lawyer has a positive professional obligation to assert the privilege on behalf of his client unless it has been waived (R v Central Criminal Court ex p Francis & Francis [1989] 1 AC 346; Bolkiah v KPMG [1999] 2 AC 222) and so the Court may intervene to prevent a lawyer from breaking a client’s privilege (Harmony Shipping v Saudi Europe Line [1979] I WLR 1380).

2. The right to communicate in absolute confidence with a lawyer is now recognised by the House of Lords as a fundamental human right: Morgan Grenfell v Special Commissioner of Income Tax [2003] 1 AC 563. The absolute nature of the right Is graphically illustrated by the decision of the House of Lords in R v Derby Magistrates ex p B [1996] 1 AC 487, in which it was held that privilege even protects a confession to a lawyer of having committed murder.

3. This is not a balancing act, in which the Courts (still less the lawyers) weigh up the relative importance of the information against the right of the client to preserve privilege. Privilege is absolute unless over-ridden by express primary legislation. In one of the leading modern cases in the subject, Three Rivers DC v Bank of England [2005] 1 AC 610, Lord Scott explained this at para 24:

If a communication or document qualifies for legal professional privilege, the privilege is absolute. It cannot be overridden by some supposedly greater public interest. It can be waived by the person, the client, entitled to it and it can be overridden by statute: (cf R (Morgan Grenfell & Co Ltd) v Special Comr of Income Tax [2003] 1 AC 563), but it is otherwise absolute. There to no balancing exercise that has to be carried out: see B v Auckland District Law Society [2003] 2 AC 736, 756-759, paras 46–54). The Supreme Court of Canada has held that legal professional privilege although of great importance is not absolute and can be set aside if a sufficiently compelling public interest for doing so, such as public safety, can be shown: see Jones v Smith [1999] 1 SCR 455. But no other common law Jurisdiction has, so far as I am aware, developed the law of privilege in this way. Certainly in this country legal professional privilege, if it is attracted by a particular communication between lawyer and client or attaches to a particular document, cannot be set aside on the ground that some other higher public interest requires that to be done.

4. The reason for this absolute privilege existing is because all over the world, it has been recognised that the proper administration of justice requires that a client can consult a lawyer In the absolute certainty that whatever the client tells the lawyer, whatever the lawyer learns about the client, the lawyer is bound not to communicate that information to any third party. As Lord Millett put it in B v Auckland District Law Society [2003] 2 AC 736 at para 47:

a lawyer must be able to give his client an absolute and unqualified assurance that whatever the client tells him in confidence will never be disclosed without his consent.

5. This is not a peculiarity of English law. In the Three Rivers decision, Lord Scott set out authorities not only from this jurisdiction but also from the United States, Europe, Canada, Australia and New Zealand which all speak with one voice (see paras 31–34), Lord Scott concluded that all these authorities:

recognise that unless the clients can be assured that what they tell their lawyers will not be disclosed by the lawyers without their (the clients’) consent, there will be cases In which the requisite candour will be absent

and concluded that it is necessary as a matter of policy that

communications between clients and lawyers, whereby the clients are hoping for the assistance of the lawyers’ legal skills in the management of their (the clients’) affairs, should be secure against the possibility of any scrutiny from others, whether the police, the executive, business competitors, Inquisitive busybodies or anyone else.

6. Unsurprisingly this state of the law is reflected in the Code of Conduct issued by the Solicitors Regulation Authority: see Rule 4.01 (“You and your firm must keep the affairs of clients and former clients confidential except where disclosure is required or permitted by law or by your client (or former client).”) There are very few circumstances in which disclosure is either required or permitted by law, none of which arise in this case. The only one which could have any relevance is what is known as the “fraud exception”: privilege never attaches to communications between lawyer and client if the client has a secret intention of using the advice to enable him to further or facilitate crime or fraud. Please note that this applies only where the client consults a lawyer with the motive of obtaining advice which will assist him in the commission of an offence (not privileged), as distinct from a client consulting a lawyer about an offence which has already been committed (privileged). This distinction runs through all the authorities but is neatly encapsulated in a dictum of Lord Sumner in O’Rourke v Darbishire [1920] AC 581 at 613:

To consult a solicitor about an intended course of action, in order to be advised whether it is legitimate or not, or to lay before a solicitor the facts relating to a charge of fraud, actually made or anticipated, and make a clean breast of it with the object of being advised about the best way to meet it, is a very different thing from consulting him in order to learn how to plan, execute or stifle an actual fraud.

For the lawyer to appreciate that this exception is engaged, however, the lawyer must have prima facie evidence suggesting that he is being used by the client in that way. The Firm had no such evidence (and for the avoidance of doubt, is making no suggestion in this response that News International had such a purpose).