Through the looking glass: Huge numbers of emails related to allegations of phone hacking have gone missing – without explanation, court hears.
Judge rules for more searches of emails and call data to be handed over.
By Byline Investigates
Lawyers for alleged phone hacking victims have asked Britain’s biggest publisher why so few emails have been handed over in legal proceedings.
When asked to state how many emails of Group Legal Director Marcus Partington existed on a search database, Mirror Group Newspapers said there were only ‘two or three’ – from a four year period.
The search period was between 2000 and 2004, when phone hacking was rife across the Daily Mirror, Sunday Mirror and The People.
Caption: MGN said that it had found only two or three emails from Mr. Partington's company email account between 2000 and 2004.
There are “enormous gaps,” in information released by Mirror Group Newspapers to phone-hacking claimants, barrister David Sherborne told the High Court. At a case management hearing in London, Mr. Sherborne claimed that a lack of email and other evidence, given to the alleged victims legal team, was “deeply unsatisfactory.”
The court, which sat on Thursday June 20th and the following day, heard about the case of former television presenter John Leslie.
The court was shown a spreadsheet which showed, the barrister said, an absence of email evidence relating to articles Mr Leslie was suing over.
He said that Mr Peter Willis, a former TV Editor and “very senior figure in the newspaper,” had been calling a confidential telephone number shared by Mr Leslie and his agent, adding, “there is no good reason for this.”
Yet, despite the fact there were thirty Mirror group newspaper articles - whose origins as potentially the product of illegal hacking and blagging were being challenged during this period - only two emails had been disclosed by MGN relating to how the stories had been produced. In total, no emails had been given to his legal team about 91 of the 141 articles which Leslie was suing over.
Mr. Sherborne pointed to the disclosure of information relating to a MGN journalist Caroline Waterson who, he said, was involved in a number of stories about Mr Leslie, but yet no emails from her had been disclosed. He argued that this raised serious concerns about the “Clearwell database” which is used by MGN to search for the purpose of meeting its legal obligations to disclose relevant information, and said the Company had clearly not complied with an earlier order made by managing judge, Mr. Justice Mann.
The court was then shown an email from Claire Collins, a former journalist at The People newspaper, sent to her News Editor Ian Edmondson.
The subject was “Re Leslie,” and discussed “what doors were being knocked.” While this was clearly a reply to an earlier email, Sherborne said, the original did not appear in the disclosed material. Mr Justice Mann asked if this might not be a reply to an email, but perhaps rather the response to a telephone conversation. Mr. Sherbourne insisted that the format of the subject line of the email showed it was a reply.
Mr. Sherborne continued by saying that MGN computer hard drives, which were required to be meant to be kept intact by the Leveson Inquiry, which took place in 2012, were now unavailable. He suggested that all the claimants wanted was a reasonable explanation of what had happened to this data. Had it been lost or deleted? The only response the claimants had received, he told the court, was that the defendant “did not have any document retention strategy in place” at the time. Counsel argued that this was not an answer. “Why did the head of the legal department only have three emails?” he asked, noting that the man in question – Group Legal Director Marcus Partington - was still employed by MGN so he could be asked for an explanation.
Mr Richard Spearman QC, for the defendants, then rose to reply. He said Mr Sherborne’s claim that there was further email evidence, which had not yet been disclosed, was “pure speculation,” and said that, where there were email “chains” these had been disclosed. Just because the word “re:” appeared in an email title, he argued, did not automatically mean it was a reply to another email, as this could have just have easily have been typed in by the sender.
He said that MGN had done the necessary work, and conducted keyword searches through the Clearwell database, which was programmed to look for email chains. Some of the back-up files, he admitted, had been “corrupted.”
Mr Justice Mann then intervened, noting that if there was an original email that was being replied to there would be two copies, one in the sent items of the sender, and one received by the recipient. He said if both had been lost, “that would be a bit odd.” Mr Spearman said “this is because of the backing-up of data.”
“Or the non-backing up of data,” the judge pointed out.
Mr Sherborne then replied. He said that the belief of the claimants was that the documents were likely to exist. He noted one email was in response to an ‘out-of-office’ automated reply, and said, that nobody would type in “re: out-of-the-office,” in an email subject line, adding, “outside of the Alice in Wonderland world they [MGN] seem to exist in.” It had to be a subject line which was generated automatically when replying to an email
Having heard both sides, Mr Justice Mann then made his ruling.
The judge said that that it was apparent from the content of some of the emails that they were replies, or may have been replied to. He said that MGN’s dismissal of this as “speculation,” was clearly wrong. He concluded that the evidence that had been heard by the court today had led to questions about the integrity of the Clearwell database and he was not satisfied with MGN’s response to these questions.
“If emails were deleted they must have been deleted in two email boxes, which raises eyebrows,” Mr Justice Mann said. He then directed further searches to be carried out, but only on a sample of 100 emails, in the Leslie casse, to be nominated by the claimants, to test if there was any suggestion that other evidence existed.
Mr Sherbourne then moved on to his next application. He said that two journalists, Mr Peter Willis and Ms Caroline Waterson, had been very involved in producing contested articles about the claimant John Leslie. so he had asked for the disclosure of mobile call data from these two journalists. However, MGN had responded, the judge said, by saying that this was “not available”. Counsel for the claimants asked if the court could rule that there had to be an explanation given for this, to confirm if it had never existed or if it had later been lost? “We just want to know what the answer is,’ he said.
Mr Spearman for MGN then responded. He said: “We have disclosed all the call data relevant to Mr Leslie’s claim..we’ve disclosed everything we’ve got, that’s it.”
The judge ruled that MGN should respond to the question: whether the data hadn’t existed in the first place, or if it had been lost over time?
More follows in the next instalment of this court report.