The High Court has struck out a phone-hacking claim brought by Hugh Grant against News Group Newspapers over events that occurred ten years or more before he issued his claim.  The court held that it was statute-barred under the Limitation Act 1980, rejecting Mr Grant’s submission that the start of the limitation period had been delayed by NGN’s concealment of facts that he had not (or could not by reasonable diligence have) discovered. But the court gave him permission to pursue the rest of his claim in relation to other unlawful information-gathering by journalists at The Sun.
Hugh Grant sued NGN for misuse of his private information in The Sun newspaper. In his claim, Mr Grant identified six categories of unlawful information-gathering (UIG) on the part of NGN: (a) phone-hacking; (b) tapping of his landlines; (c) bugging of his home and car; (d) burglary of his home and office; (e) “blagging” of confidential information from third parties; and (f) instructing private investigators to carry out such unlawful acts.
NGN applied for strike-out or summary judgment of the claim, on the grounds that the claim was statute-barred, as the alleged events had occurred at least ten years before the claim was issued.
It was common ground that the primary limitation period under section 2 of the Limitation Act 1980 had expired before the claim was issued. Yet in support of his attempt to delay the start of the six-year limitation period under section 32(1)(b) of the Act, Mr Grant said that he saw evidence for the first time in 2021 that showed that NGN (and employees of The Sun) had carried out acts of UIG.
For the purposes of the application, NGN accepted that the allegations of deliberate concealment were presumed to be true. Accordingly, the only matter in issue, and the test to be applied, was whether Mr Grant had a realistic prospect of proving at trial that:
- he did not know about the concealment, and could not with reasonable diligence have discovered it, until 9 March 2016 at the earliest (i.e. six years before the date of issue);
- the concealed facts would have led a reasonable person to conclude that there was a worthwhile claim; and
- a reasonable person would thereby have sufficient confidence to embark on the preliminaries to issuing a claim.
On the third limb, Mr Justice Fancourt clarified that it was not necessary for such a person to have confidence that the claim would succeed or to have the evidence to prove it, or even necessarily be able to plead it before further investigation in order to issue a claim.
Section 32(1) of the Act provides that, “where in the case of any action for which a period of limitation is prescribed by this Act … any fact relevant to the plaintiff'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”.
“Any fact relevant to the plaintiff’s right of action” relates to the essential facts that a claimant must prove to establish a prima facie case, as distinct from evidence required to prove the case,  which is known as the "statement of claim” test. If a claimant can plead a cause of action on the facts, regardless of the existence of evidential support, that is when the limitation period will begin to run.
In FII v HMRC,  the Supreme Court held that the purpose of section 32(1) was to ensure that a claimant was not disadvantaged as a result of being unaware, due to fraud, concealment or mistake, of the circumstances giving rise to their cause of action, and that time therefore ran from the point when a claimant knew (or could with reasonable diligence have known) that they had a worthwhile claim.
In Gemalto Holding BV v Infineon Technologies AG  the Master of the Rolls noted that the FII test made clear that, in cases dealing with concealment, “what needs to have been discovered is just that, the concealment”, adding that: “Once the claimant knows objectively that a cartel has been concealed, it does not need to have certainty about its existence or about the details … The claimant cannot postpone the start of the limitation period until it has had the time to investigate the details of the claim and the possible defences and to evaluate its prospects … That is what the six-year limitation period is for.”
Mr Grant contended that he did not know (and could not reasonably have discovered) the relevant facts relating to phone-hacking by The Sun before he saw documents (and, in particular, invoices) in 2021/2022 that demonstrated that NGN had instructed private investigators to carry out acts of UIG against him, and so time did not start to run against him until then. But Fancourt J found that the facts evidenced by the invoices were not essential to the pleading of Mr Grant’s claim: the invoices were merely evidence or examples of alleged UIG, not essential facts for the pleading of the claim in that respect.
Other categories of UIG
The judge held that each of the separate categories of UIG alleged must be considered separately because the facts relating to each were different from each other, even if the cause of action was the same.
Mr Grant’s knowledge up to 2012
To demonstrate that the claim should have been brought earlier, NGN relied on the following points:
- Mr Grant was a founder of “Hacked Off” in 2011 and had a keen interest in phone-hacking. In or around 2011, he both gave and heard evidence at the Leveson Inquiry, including that filed on behalf of NGN.
- Mr Grant was aware at the time of (or could easily have identified) the 64 articles in The Sun during the period 1995-2011 that formed part of this claim, and that the content of most or all of those articles was regarded by him as private. Mr Grant had explained to Sir Brian Leveson (the presiding judge in the Leveson Inquiry) that he did not believe the pretence in articles that a "close friend" had provided the information. So, it was argued, it was not the case in this claim that the claimant was misled into thinking that the source of the articles was a disloyal friend or family member.
- Mr Grant had been informed by the police in 2006 that Glenn Mulcaire, a private investigator who was working for the tabloids, appeared to have been intercepting his voicemails. So Mr Grant actually knew that he had been the victim of phone-hacking at that time.
- Mr Grant brought a phone-hacking claim against another NGN title, the News of the World (NOTW) in 2012. His claim adopted the 2012 generic particulars of claim, which included an allegation about the instruction of journalists for The Sun to carry out voicemail interception. The 2012 claim also made allegations of false denials and a cover-up by NGN, and so Mr Grant was generally aware of NGN's concealment tactics.
- Mr Grant was aware of a detailed New York Times article published in September 2010, which alleged phone-hacking against Sean Hoare, a reporter, and Andy Coulson, deputy editor, when at The Sun.
- In April 2011, Mr Grant was told by Paul McMullan, a whistle-blower from the NOTW, that Rebekah Brooks and Mr Coulson were commissioning voicemail interception when at The Sun.
- In July 2011, Mr Grant's confidential medical details were published in The Sun. Mr Grant complained and was paid compensation. Mr Grant believed that the details were leaked by a corrupt hospital employee and did not know that it was a private investigator who had blagged the information, as he now does.
- At the time of the launch of ‘Hacked Off’ in 2011, Mr Grant made repeated statements to the media alleging phone-hacking by "the entire tabloid press in this country" on "an industrial scale", and stated that it was not just the NOTW that did it, and that it was "endemic in the British press".
- Mr Grant's written evidence dated 3 November 2011 stated that it was a myth that egregious abuses of privacy only happened at the NOTW. Mr Grant had suffered a burglary at his flat, following which one of the tabloids published a story about the flat’s interior. At the Enquiry, Mr Grant agreed that the burglary might have on the instructions of the press. Yet there was no evidence of any link to The Sun in relation to that burglary.
On that basis, NGN asserted that, as at 2012, Mr Grant knew that he had been hacked by the NOTW, and had at least a strong suspicion, though no proof or hard evidence, that other tabloid newspapers were involved.
Mr Grant’s knowledge after 2012
After he settled his claim against the NOTW in December 2012, Mr Grant tweeted "more trials of News of the World and Sun journalists to come", following the conviction of Mr Coulson and others. In a further tweet on 3 August 2014, Mr Grant recommended a newly published book, "Hack Attack”, in which his name was mentioned relating to the unexplained burglary, though not with reference to The Sun specifically.
In December 2015, the claimants in the hacking litigation applied for permission to amend their particulars of claim to add significantly to the limited allegation against The Sun. On 14 January 2016, Mr Grant tweeted the headline of an article from The Independent, which reported on the amendment application and on NGN’s denial together with its heading: "A 'new flank' of hacking claims have been opened against Rupert Murdoch's daily tabloid, lawyers confirmed.” NGN said that this demonstrated that Mr Grant was then aware of the case that was to be advanced in relation to phone-hacking by The Sun, and that there was evidence that the previous denials given by NGN in relation to The Sun were false.
In the judge’s view, it was impossible to conclude that, at the relevant time, Mr Grant did not know (or had no means of knowing) that he had a phone-hacking claim against The Sun. Mr Grant had exercised reasonable diligence, had access to the draft amended particulars (through his barrister) of the generic phone-hacking case and had the first-hand evidence referred to in The Independent's article. Mr Grant knew that he had been a victim of the interception of voicemail messages, and that The Sun had obtained private information about him somehow. The missing component was a sufficiently confident belief that The Sun had obtained that information by phone-hacking, due to NGN’s previous denials, but the credibility of those denials had been undermined by that point, and so Mr Grant indisputably had easy access to the relevant materials.
The judge decided that it was clear beyond reasonable doubt that, from January 2016, Mr Grant knew (or had ready access to) the relevant facts to have sufficient confidence to embark on the preliminaries to bringing a phone-hacking claim against NGN in relation to The Sun. As a result, the judge found that Mr Grant’s phone-hacking claim was statute-barred, and it was struck out.
The judge commented that the so-called practice of “landline-tapping” is factually distinct, and a distinct legal wrong, from phone-hacking. He found no evidence to show that Mr Grant knew facts about possible landline-tapping of his telephone or suspected it before 2021. The Independent article that Mr Grant tweeted only mentioned phone-hacking, and knowledge of the likelihood of phone-hacking did not prove knowledge of a likelihood of landline-tapping. So the judge ruled that such claim should be determined at a trial.
Mr Grant knew about the occasion in 2011 when his medical details were obtained from a hospital, but he believed that this was either provided by a hospital employee or obtained from them by a bribe. Like landline-tapping, blagging is a distinct legal wrong from phone-hacking. There was no evidence to prove that Mr Grant was aware (or believed) that any of the private information about him had been published as a result of The Sun employees, and the judge found that there was therefore an arguable case for trial.
Bugging of houses and cars was not in consideration by anyone until Mr Burrows' 2021 witness statements, when Mr Grant learnt that a tracking device had been placed in his car. The judge concluded, then, that Mr Grant did not know and could not reasonably have found out before 2021 that he had a worthwhile claim that NGN had bugged his house and car.
Mr Grant knew that his flat and office had been burgled in 1995 and 2003, respectively. There was no evidence to prove a link connecting the burglary with The Sun or an article published in The Sun. That only arose in 2021, through the evidence of Mr Burrows. The judge concluded that there was clearly a realistically arguable case that Mr Grant did not know that he had a worthwhile claim that The Sun commissioned burglaries of his property.
The use of private investigators was pleaded principally as being a means of conducting the other categories of UIG. The judge commented that NGN had not established that Mr Grant knew (or could have discovered) sufficient details about The Sun's unlawful use of private investigators to obtain private information about him. It was only on seeing invoices disclosed in NGN's generic disclosure in 2021 that Mr Grant believed that private investigators had been instructed by The Sun to target him in various ways, particularly in 2011.
The judge concluded that Mr Grant's claim for phone-hacking was statute-barred and granted NGN summary judgment in that respect. But the question as to whether the other UIG acts were statute-barred should be determined at trial.
This is a useful case to consider when assessing whether there are grounds to delay the start of the limitation period under section 32(1) of the Limitation Act 1980. The overarching point for practitioners to have in mind is that, while it is understandable that a claimant might prefer to wait until they have clear evidence to prove their claim before issuing proceedings, that will not be accepted by the courts as a justifiable reason for delay. This is because evidence and proof are irrelevant to the correct legal test to determine when the limitation period begins to run. Claimants should be mindful of this, and should take stock of the facts that they are aware of (or have the means of knowing about) when deciding whether or not to bring a legal action.
Written for Entertainment Law Review