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Case Comment: New Judgment: Phillips v Mulcaire [2012] UKSC 28

On appeal from: [2012] EWCA Civ 48 Phillips applied to add Mulcaire as a defendant in proceedings relating to alleged hacking of her voicemail, and for an order for disclosure forcing him to identify the person instructing him to intercept messages. Mulcaire appealed against decisions holding that the Senior Courts Act 1981, s 72 excluded his common law right to the privilege against self-incrimination. The Supreme Court unanimously rejected Mulcaire’s appeal: s 72 excluded his privilege. The proceedings brought by Phillips were “proceedings for . . . rights pertaining to . . . intellectual property” and the conspiracy proceedings to which Mulcaire would expose himself on disclosure amounted to a “related offence”. An excessively narrow approach to interpreting the legislation might frustrate the legislative purpose of these provisions, which is to reduce the risk of injustice to victims of crimes. The information described in Phillips’ pleading is “technical or commercial information” falling within the definition of “intellectual property” in s 72(5) of the 1981 Act, despite the fact that such could not normally be described as “intellectual property”.