Limitation actually—section 32(1) in misuse of private information claims (Grant v News Group Newspapers)
Information Law analysis: Mr Justice Fancourt granted NGN summary judgment on the phone-hacking element of actor Hugh Grant's claim, based on NGN’s defence that limitation had expired.
However, he dismissed the remainder of NGN’s summary judgment application; Mr Grant's claims in respect of five other types of unlawful activity undertaken by The Sun including landline tapping, bugging and the use of private investigators (‘PI’) (other than for phone-hacking purposes) will therefore continue to trial, which is set to take place in January 2024. In making his decision, Fancourt J considered Mr Grant's reliance on section 32(1) of the Limitation Act 1980 (LA 1980). He held that each of the separate categories of unlawful information gathering (‘UIG’) alleged against The Sun must be considered separately in respect of limitation issues, as opposed to treating UIG as if it were an ‘umbrella claim’, despite the claim being based solely on the tort of misuse of private information.
Grant v News Group Newspapers Ltd  EWHC 1273 (Ch)
What are the practical implications of this case?
While it was common ground that the primary limitation period expired before the claim was issued, Mr Grant sought to rely on LA 1980, s 32(1)(b) as suspending the clock until about 2021. Section 32(1)(b) states that where ‘any fact relevant to the plantiff's right of action has been deliberately concealed from him by the defendant;…the period of limitation shall not begin to run until the plaintiff has discovered the…concealment…or could with reasonable diligence have discovered it’.
A hurdle that claimants such as Mr Grant often have to overcome in bringing a misuse of private information claim is the concealment element, such that they do not know about the prospect of a claim until much after the misuse occurred. In particular, Mr Grant said that he relied upon the denials by editors and executives of The Sun at the Leveson Inquiry.
After Test Claimants in the FII Group Litigation v HMRC  AC 1 and Gemalto Holding BV v Infineon Technologies AG 3 WLR 1141, the test to be applied is whether a claimant knew facts, or could with reasonable diligence have known facts, that would have led a reasonable person to conclude there was a worthwhile claim. A lack of evidence of the alleged wrongdoing is not the test to be met.
This will be of particular interest to practitioners when advising clients: in practice this means claimants may have their claim struck out in a deliberate concealment case if they take too long to gather evidence and investigate merits before issuing a claim. In addition, the limitation period attaching to each element of the claim will have to be considered carefully and separately, rather than considering limitation as against the facts of the claim more broadly.
What was the background?
On 9 March 2022, Mr Grant brought a claim in the Mobile Telephone Voicemail Interception Litigation (MTVIL) against NGN in relation to the conduct of employees of The Sun, one of NGN's newspapers. In his claim, Mr Grant alleges that The Sun unlawfully carried out UIG between 1995 and 2011 including phone hacking, landline tapping, obtaining private information by deception (blagging), bugging his private property, targeted burglaries, and the use of PIs for the purposes of writing articles about him, intimidating him and deterring him from speaking out about tabloid press.
The onus was on NGN in its application to strike out, or alternatively for summary judgment, to persuade the court that on the balance of probabilities by 9 March 2016 there was no real prospect of Mr Grant proving at trial that he did not know or could not reasonably have discovered sufficient facts to conclude that he had a worthwhile claim.
NGN contended it was clear that Mr Grant was ‘at the epicentre’ of the phone hacking scandal, and would have known enough to conclude that he had a worthwhile claim long before 2021.
Mr Grant's case was that he did not know (and could not reasonably have discovered) the facts relevant to the individually pleaded causes of action before he saw documents in 2021 and 2022 as part of the MTVIL litigation that demonstrated NGN had instructed PIs to carry out acts of UIG against him. Accordingly, his position was that time did not start to run against him until then.
What did the court decide?
Fancourt J noted that, after FII and Gemalto, the focus is not on what remains concealed but on what is known, or what could be reasonably discovered, ensuring a claimant is no longer disadvantaged so far as limitation is concerned. A claimant being able to plead fewer or no examples would be irrelevant if they considered they had a worthwhile claim for UIG.
NGN relied on statements including tweets by Mr Grant in relation to his knowledge of UIG. Notably, on 14 January 2016 he tweeted about a ‘new flank’ of hacking claims being opened against Rupert Murdoch's daily tabloid. Fancourt J held it was ‘clear beyond reasonable doubt’ that from January 2016 Mr Grant knew (or had ready access to) the relevant facts to embark on a phone-hacking claim against NGN.
However, if a claim form pleads several distinct causes of action, and a claimant knew more than six years before issue that they had a worthwhile claim in relation to some but not others, the fact that some causes of action are statute-barred does not mean that others are. For example, ‘[t]o say that if Mr Grant knew sufficient to embark on…bringing a claim based on voicemail interception he knew enough to do so in relation to commissioned burglaries is plainly wrong’.
Although Mr Grant was unable to rely on LA 1980, s 32(1) in respect of phone-hacking (NGN successfully obtained summary judgment on this claim) it was held that he has a realistically arguable case that the other rights of action are not statute-barred. These will therefore be decided at trial.
- Court: Chancery Division
- Judge: Mr Justice Fancourt
- Date of judgment: 26 May 2023