HACKING CASE: Judge blasts "cheat" NGN defence doc as more pay offs buy James Murdoch breathing space
“As a helpful document, my first reaction…was that it was a cheat, not worthy of the profession,” he said.
He added: “I’m not impressed by it. I don’t think it’s a document intended to assist the court.
“It’s certainly not intended to assist the other side, and it’s redolent of somebody who is intending to ambush.”
Justice Mann’s strong words came as NGN was negotiating pay offs to the final claimants in a latest wave of cases alleging hacking, data theft, and board-level ‘concealment and destruction’ of evidence relating to the News of the World phone hacking scandal of 2006.
By doing so NGN and its heavyweight solicitors, Clifford Chance, delayed for the second time a full trial of the facts, due to start today (October 15), until February when five new cases, including those of Sir Elton John and Heather and Fiona Mills, are to open with four weeks of ‘cover up’ evidence.
NGN‘s Former Executive Chairmen James Murdoch and Les Hinton, CEO Ms Brooks, former lawyers Tom Crone and Jon Chapman, ex-IT chief Paul Cheesbrough and former General Manager and serving Wall Street Journal publisher Will Lewis, are among the executives accused over an alleged purge of evidence.
NGN does not admit any widespread wrongdoing by its executives or The Sun newspaper, but admits illegal news-gathering at the News of the World’s features department, but only between the years 2005 and 2006.
However, it is likely to withdraw one former NotW reporter from its witness list after the court heard he “did not tell the truth” in a sworn statement.
In a fractious run-up to the postponed trial, claimants’ lawyers accused NGN of a variety of unprofessional behaviour, including the breach of disclosure orders, stonewalling of questions, and other “sharp practice”.
Claimants’ barrister David Sherborne said one example was NGN producing, 16 months late, 229 invoices worth £214,000, potentially containing details of more than 1,000 victims of relevance, from a single private investigator, just last week, with trial due to start today.
With thousands more private investigator invoices and payment trails still withheld, in defiance of Justice Mann’s orders of June 16, 2017, requiring production, Mr Sherborne described NGN’s approach to disclosure of evidence as a game of “battleships”.
In a skeleton argument for the pre-trial review, he said: “NGN and its legal team must take proper responsibility for their disclosure obligations.
“It is not acceptable for a party in any litigation… to use its greater resources and knowledge about its own documents to engage in games…
“No more must the Claimants have to play a game of ‘battleships’ just to obtain highly relevant documents.”
Among those documents is a memo said to tie Murdoch’s former right hand man Les Hinton to the firm’s false “one rogue reporter” phone hacking defence of 2007-11.
The ‘Mulcaire options memo’, sent by NGN’s former legal manager Tom Crone to its then CEO Les Hinton in January 2007 discusses, claimants say, a pay off to former News of the World in-house phone hacker Glenn Mulcaire.
At the time, Mulcaire was threatening to expose senior guilty conspirators in an employment tribunal, until Hinton allegedly gagged Mulcaire with a pay off, leaving “rogue” Royal Editor Clive Goodman to take all the blame for four more years.
Having told the Metropolitan Police in 2011 it had lost this potentially incendiary document, NGN “very recently” found it again, according to Ms Montgomery, but now claim it as inadmissible due to legal privilege restrictions.
Claimants argued the document – the only one NGN is withholding amid many discussing Goodman and Mulcaire – should not enjoy legal privilege in any event because prosecutors would, had it been located, have exhibited it at the Old Bailey hacking trial of 2014.
Justice Mann ruled in favour of NGN’s argument, but suggested Claimants could try again for disclosure, dependent on the as yet unknown terms of the original Old Bailey criminal waiver.
In any event, the document may be disclosed under the “iniquity” rule, which prevents legal privilege applying to documents showing illegal conduct by the lawyers.
Worryingly for Rupert Murdoch, Glenn Mulcaire is now part of a chain of former NGN employees and private detectives to have turned on Britain’s most powerful tabloid publisher by supporting alleged victims with evidence and witness statements.
Mulcaire is joined by his old boss, the NotW’s convicted “master of the Dark Arts”, ex Head of News Greg Miskiw; one-time private eye to Fleet Street and convicted data blagger, Steve Whittamore, former Sun columnist Emma Jones, former NotW investigator Graham Johnson, and hacking trial “witness of truth”, former Sunday Mirror and NotW staffer Dan Evans.
While David Sherborne has been a familiar face in the hacking litigation from the start in 2015, Clare Montgomery QC has acted for Rupert Murdoch only since the claimants’ cross hairs fell on his son and top lieutenants.
Montgomery is known as an elite-practitioner with great skill in the criminal courts, notably in the areas of fraud and financial crime. She was also part of Andy Coulson’s defence team in the run up to his criminal trial in 2014.
She has elected, unusually for civil proceedings, not to respond to the concealment and destruction allegations against her client with a “positive case” rather instead simply saying: “prove it” to the claimants.
David Sherborne said: “How are we meant to deal with this? It’s simply… unfair on the claimants that we do not know how they put their case at this stage, just before the trial.”
Ms Montgomery defended NGN. She said: “In a case where, by and large, we are putting the claimants to proof, there is no positive case for us to outline…they are in no difficulty. They know these are vigorous non−admissions. We will put them to proof.”
Justice Mann ruled NGN had now ceded rights to properly cross-examine the claimants’ witnesses, and warned Ms Montgomery that her conduct during the forthcoming trial would be “policed”.
He also expressed regret at having to permit NGN’s skeleton argument document to stand, saying it went no further than legally satisfying minimum requirements.
He said: “That they have taken the view that they wish to put in that which they wish to put in, which basically says, “prove it”, and that may put them in all sorts of difficulties and limit their case at the trial but t hat’s basically what they say.”
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