The transcripts of the official inquiry into the culture, practices and ethics of the press. More…


  • Mr Shear, your full name, please.

  • Thank you very much. You too have provided a witness statement which the Inquiry has seen. It is dated 8 November 2011. There's a statement of truth at the end of that statement. Do you confirm the truth of that statement?

  • Thank you very much. First of all, I'm going to ask you please to tell us a little about yourself, Mr Shear.

  • I'm a solicitor and partner at Berwin Leighton Paisner, which is an international law firm based in the City of London. I qualified in 1989. I practised initially commercial law and then became a commercial litigator and I am still today a commercial litigator. I have a very broad and wide-ranging commercial litigation practice with an area of specialism in both sports and media work.

    The first major case that I handled that brought me into, I suppose, close contact with the media was when I acted for Robbie Williams in the break-up of Take That in 1995. During the latter part of the 1990s and into or to the present day, I have acted for a broad spectrum of the actors and actresses from the high profile acting world, for sportsmen, sportswomen, especially Premier League footballers, for celebrities, for politicians, for a very broad range of those who could become or be of interest to the media.

  • And I think it's right that you are a claimant in the voicemail interception litigation which is in the Chancery Division to be heard by Mr Justice Vos in January of next year?

  • So you will understand that we cannot fairly discuss the merits of your individual case --

  • -- as opposed to the fact of your individual case. Your statement covers matters of opinion and hearsay evidence on the one hand, but also direct evidence on the other, and I'm going to deal first with the direct evidence, which probably starts at paragraph 28, please.

    You refer to the one incident when you arranged to meet a client, who of course you are not going to name, in the middle of a high profile crisis at a secret location in Oxfordshire, and you were followed by a reporter or photographer.

  • Yes. Over the years, I've acted on some extremely high-profile cases, and it is a fact that I've become quite well-known by those members of the press who are interested in those cases, and that they would often camp outside my office. Therefore if I wanted to have or the client needed to have a private meeting, we would often arrange to do it somewhere other than at my office.

  • On this particular occasion, the subject matter was extremely high profile and the whereabouts of the person concerned were of interest to the media generally.

  • Often because -- and in this case I'm sure it was the case -- because the picture was the thing that they wanted to publish. They wanted the current picture.

  • I spoke with the client, who was quite a long way away from his normal residence, and we arranged for a meeting place in the Oxfordshire countryside at a hotel. I have absolutely no idea who followed me. The likelihood is it was probably a member of the paparazzi or somebody who was given the task by one of the newspapers or general media concerned, but I was followed on that trip. Unfortunately for the person who was following me, I think they got lost somewhere behind me on the journey so, as I say, I have no idea who the actual person given the task was.

  • Then you say in paragraph 29 -- this is before the phone hacking scandal broke, as it were -- that clients often said to you that they felt that the press were monitoring their electronic communications. How often did this happen, these fears being expressed?

  • I would say very regularly. Certainly in the period from about, I suppose, 2004, 2005 onwards, clients began to believe that coincidences were being replaced by more likely interception of some form or another. I recall quite clearly clients becoming irritated or frustrated and suspicious that private information was finding its way into the popular media, and they identifies this with -- you know, stray facts that they knew were only privy to one or two people were being published. It caused them to ask questions not only of their family and friends but even of me. I recall it quite clearly.

    Then it became so sort of continuous that I suppose the suspicion that was directed at those that could have leaked it began to become more focused in their own minds about whether or not this information was being obtained by surveillance and, you know, for a variety of reasons, those that I acted for, some more than others, became more used to changing their mobile telephone numbers, would change them two or three times a year, and that was a common way for people to, I suppose, give themselves some confidence that perhaps there was a way that they -- although they had no actual evidence or basis other than their own suspicion, but could prevent easy access to information about them.

  • Yes. You refer to a specific incident in early 2008. Can you tell us a little bit more about that, please? This is paragraph 30 of your statement.

  • Yes. As I say, I've acted on a variety of high-profile cases, and once again, this was an extremely high profile matter where there were two participant -- or clients involved and the press had different but equally intensive interest in both of them. There was obviously a connection between them.

    The increase in interest had got to a point of almost fevered activity, and their house had been surrounded by the press for several days. It was because of events then occurring and concern over events that could occur that they needed to seek advice from me, both as a lawyer and also some common sense advice, hopefully as well.

  • Sorry? Occasionally -- occasionally, the clients need to be told the realities of what can occur as well as the legal advice of the circumstances in which they find themselves. Hopefully, I provide a blend of both. And they wanted to come and see me and we knew that if I went to them, then that would automatically -- I suppose not just accelerate but heighten interest, and if they came to my office, once again that would become an obvious point of focus for the media and a media scrum would develop.

    The idea was -- and it only arose literally an hour or so before the meeting -- was I suggested to them that if they could get out of their house, that they should come to my house, because the media didn't know where I lived, and they thought that was a pretty good idea and they lived out in the country and they felt that if there was anybody who was following them, that they could probably lose them in traffic or find some way to make it to my home.

    I recall very clearly the client saying, "Right, we've left. Send me a text" -- in fact, I think he said, "Send me a text", and I'd already left a voicemail message for him of my home address and details of how to get there, because he obviously needed to put it into his Satnav and also I wanted to explain to him as to which way was probably best for him coming from where he lived or where they lived.

    I remember very clearly being sort of at my front door and sort of looking out because I wanted to be there for when they arrived and I had space in my drive for them to park their car, and -- I mean, I was quite flabbergasted when about, I suppose, several minutes before they arrived, two cars turned up with four or five people in each car, that preceded them, and sort of parked sort of at one end of my street and one a little further down, to then have, a few minutes later, as I say, the clients come up.

    So it was absolutely clear to me that the paps or media concerned were well aware of where they were going to, and yet only I was privy to that information because I'd left the message and sent the text to the clients and only they were privy to it. So it was quite an extraordinary event, which was followed by, obviously, quite intensive interest in what was happening inside my house for the rest of that day and a media scrum outside for many hours.

  • Yes. Of course, everything that was happening within your house was protected by legal professional privilege, it goes without saying.

  • Yes, it was. It was a -- it was -- it was a private time not only for the clients so far as circumstances that related to them, but it was also a matter for them to seek and obtain legal advice, which is obviously professionally privileged, legal professional privilege.

  • Of course. You were so concerned that you tell us in paragraph 32 you wrote specifically to the Information Commissioner's office and to the Metropolitan Police, and you give the dates -- 2008, 2009 -- listing your clients, and indeed your own name was on the list, with a general enquiry in relation to phone hacking. You say at the end of paragraph 32 the response from the police and the Information Commissioner was negative. Are you saying by that that they didn't reply to your letter or are you saying that by that they did reply and say that you and your clients were not the subject of phone hacking?

  • Well, I became interested in the development of the information that came out of the various criminal trials that had taken place, but I asked the clients, I suppose in around about 2007, would they like to take matters forward. By 2008, a number of them had indicated that they did. Some didn't, actually. Some preferred or felt that they could suffer recrimination or further interest by the media by pursuing an action and decided that they actively didn't want to pursue it.

    So as you say, or as I have said, in around about 2008, 2009, I sent a long list of clients' names, at their request, to both the police and to the Information Commissioner. I included my name on it as just a -- it was actually a suggestion of one of my partners that I may be collaterally interested in -- to them and could have been subject.

    So when I received the response -- and I did receive a response from both the Information Commissioner and from the Metropolitan Police -- the responses were specifically: no, no information had been found on any of the names contained on the list. I reported back to the clients and said no information, and at the time I recall thinking: well, there's two circumstances. Either there were -- all of the data and evidence had been collated and reviewed and no names had been found, or they hadn't finished the review, and the third option was that actually not all of that evidence which related to misconduct by the News of the World had actually been retained and considered.

    But I reported back to the clients and some of them were -- I suppose felt that it was unlikely that they had not been the subject of some form of unlawful surveillance, and others were actually very pleased that their names didn't appear.

    It was with some surprise that in the early part of this year -- it was about the end of January, February -- that I was contacted by officers from Operation Weeting who asked to come see me to talk to me about a number of my clients who -- whose names did appear in the evidence that had been reconsidered or reviewed by Operation Weeting, and they came to see me and started to go through the process.

  • Yes, and were you shown relevant pages from the Mulcaire note book which related to you?

  • I was. Actually, it's become almost a regular event. A specific officer was assigned -- Michelle Roycroft(?) was assigned to me and to my clients, and I was shown the information that related to my name and the detail of that, and it jumped out of the page at me, actually, although it wasn't quite as specific as I now know in relation to other clients, but I immediately recognised the contents of voicemail messages that had been left for me and conversations that had followed those messages.

    They were slightly cryptic but the detail was very clear and it related to information and advice that I'd given to a client and to others who were advising him in relation to a case where I was acting for that client on a regulatory matter.

  • I think News International will want me to say, although I'm not going to contradict anything you've just said, that what you've just said is or may be an issue in the civil proceedings.

  • I understand that, and obviously I've spoken to -- or I'm aware that those that left the messages for me also recall what was said at that time as well, but I appreciate that it's in contest.

  • Let me just understand that. In relation to the advice that you had given, are you saying that was left on a voicemail message?

  • No. I was actually in the hearing at the time, and I -- the way in which it worked was that I would leave messages for those who were representing my client and they left messages for me, and they also received contact from third parties -- in this case, it was actually from a journalist -- and they left a very detailed message for me about what the journalist --

  • It's all messages and journalists left messages for me as well. So yes, it's messages to and from.

  • You refer specifically to one incident in paragraph 36 advising a footballer in relation to regulatory proceedings.

  • Yes. That's to what it relates.

  • Thank you. May I move back in your statement now, please, Mr Shear, and this is -- you're dealing with your opinions. You express a general opinion about tabloid conduct under the rubric which mentions paragraph 4 and the commercial pressures. In your own words, please, what are those pressures operating at the moment?

  • I believe it's a business model that's become almost dependent and infatuated with sensationalist and titillating stories, to the point where the facility that -- and this is just my opinion, as I say -- that phone hacking or unlawful surveillance provided allowed those that were utilising it and reviewing the information to not only build their stories but to pad them out with detail, and this coincided with the financial benefit that a newspaper could have from providing a diet of easily digestible, sensationalist sort of fodder on a regular basis.

    It's been a progression of sort of fairly sort of, I suppose, privacy-invading but interesting to a section of the public intrusion into the private lives of the rich and famous, powerful or others that has kind of created this sort of self-generating process where people want to see or hear of the next event.

  • So that's -- that's what I've seen, that's how I've seen it develop.

    It certainly was not quite as prevalent in the same sort of guise in the mid-1990s. I think it became more organised and more orchestrated as we sort of turned into the early part of 2000. Certainly the News of the World was out in front as the most effective story-gatherer, and certainly quite a bit of daylight appeared between News of the World and the other papers with whom they competed.

    I think that the types of surveillance that were being undertaken are unlikely to have been isolated to one newspaper, purely because of the movement of journalists between the different newspapers. I mean, there aren't that many newspapers as employers out there who would be available for the journalists to work for, and it's -- I was certainly aware of significant movement in the early part -- early/mid part of the 2000s, I suppose from 2003 to 2005, of journalists from some newspaper groups specifically to the News of the World.

  • One theme that the Inquiry has received, it came through the seminars but also in evidence which has come in from the press, is that the model you're giving us is entirely incorrect, that whereas it might have been true to some extent in the 1980s and early 1990s, the effect of the PCC is to improve press behaviour and therefore you're giving us a stereotypical view, no doubt bona fide, they would say, but it's completely wrong. Do you want to comment on that?

  • I don't accept that at all, actually. I think that the press are extremely adept at identifying and calculating opportunities and then exploiting them, whether it be from chequebook journalism and the persuasion of young girls to sell their stories on a sort of regular basis, all the way through to identifying which stories to alert the target of that relates to private information pre-publication and which stories to leave to the potential risk of post-publication damages.

    In that sense, the PCC is certainly no match for that kind of organised and focused financial calculation. I think the PCC as a body, although there are areas -- and I'll come back to them -- there are areas where I think they're effective, generally speaking, the PCC, as I perceive them, their role is one of mediator. They're not a regulator, they have no power to investigate and I think that without being empowered and having the teeth to appropriately investigate and to regulate the members of the media, they're an ineffective body.

    It doesn't just come down to investigation and regulation. I think there's also an issue here of training, and where one has a sort of a systemic loss or dilution of ethics to the extent that we've seen at the News of the World -- and as I say, I don't believe that's really isolated to just that paper -- I think one has to question the extent to which the journalists have been trained about the requirements upon them and the obligations upon them and their employers to act ethically. I think that an element that should also be introduced into any body that replaces the PCC or any enhancement to the PCC's powers is a requirement for appropriate training or ongoing training for the journalist to enhance the ethical conduct.

    So far as the one area where I do think the PCC have been effective is that they have provided an anti-harassment phone line and I think that is quite an effective facility, and I myself have actually, on occasion, recommended that clients that were concerned about doorstepping utilise that helpline, and I know they've done a good job with that. But I'm afraid so far as broader regulation or investigation is concerned, the PCC, today and yesterday, is certainly no match for the larger and effective media organisations to whom they are meant to mediate for.

  • In terms of the kiss and tell stories you mentioned in paragraph 8 of your statement, do you have personal knowledge of the amount of sums of money which pass hands between newspapers and these women for the purchase of these stories?

  • I have had accounts from several young women concerned. I think there was a tariff that almost evolved over time, some of it on a competitive basis between the different newspapers, because obviously if the story was particularly high profile, the target person was of particular interest or the young lady had an effective agent -- and some of them did have very good agents who would increase the temperature and amount for an auction for that kiss and tell story. That tariff, as I say here probably went for something like 10,000 for the most innocuous up to half a million. The upper end of that, or the number I give at the upper end of that, is slightly anecdotal. I have heard accounts of people who have been involved in the most high-profile cases -- for example Rebecca Loos and others -- who have been paid very large sums for their stories. But the young ladies concerned became aware that there was a tariff, and as I mentioned in my statement, there's certainly a group of repeat performers, if I can put it that way, who became fairly regular kiss-and-tell girls, who obviously took advantage of that and I do believe that -- well, I know on certainly more than one occasion, clients of mine have been faced not only with the prospect of being alerted that the newspapers had a kiss-and-tell girl, but also that that young lady would, if she were paid more money, not sell her story, and that in itself often, certainly on more than one occasion, appeared to be an orchestrated attempt to persuade our clients to actually pay off the young ladies, which in itself could become an enhanced story, almost in a form of orchestrated blackmail.

    So, you know, the supplement to the standard kiss-and-tell story I think occurred around 2006, 2007, where there was an appetite to kind of move it away from the standard to something a little more interesting, and, you know, even the readers of our regular Sunday and daily tabloid papers needed some variety and I think that's partially what occurred.

  • You go so far as to say in paragraph 12 that in your view, the tabloids consciously calculate the financial risk of publishing a story. I suppose that would include, in relation to a kiss-and-tell story: "It would cost us X to buy the story, that will yield us additional circulation of Y and therefore there is a financial benefit", but have you any evidence for that apart from speculation?

  • Well, I think it's about the progression of behaviour. I had very good working relationships with most of the national newspapers. I was probably, and still am, one of their principal adversaries, and you know, it's not just a question of whether or not you're an adversary on a weekly or daily basis but you have to behave adversarially all the time. We did have good relationships, and during the early part of this century, 2000 up until 2008 and 2009, even -- I suppose even now occasionally, the papers were -- would occasionally alert us to a story that they were going to publish, and that was certainly more prevalent the further one goes back than it is currently. So we would be contacted, perhaps on a Thursday or Friday, in relation to a story that was being developed for publication on a Sunday. It ordinary involved either material that was potentially defamatory and the newspaper was looking to balance out their risk by putting the story to the target's lawyers, or alternatively it concerned material that was of a private nature and they were trying to assess what, if any, resistance they would receive.

    In order to enhance and regularise their approach to me, I would send out a list of all of my clients with a notice basically saying that if you have any material which you intend to publish, please put it to us first because it gives us the right of response, and certainly up until, I suppose, the last few years, the journalists and the legal departments would put that material to us. But over time, what's actually happened is two things. Firstly, the amount of damages that were awarded in relation to defamation, to libel generally, has reduced. So I suppose when one goes back in time to the Elton John cases, they were the last of the very high damages awards. So it's been on a sliding scale coming downwards, and the maximum amounts that have been provided by way of damages in relation to breach of privacy have been relatively modest. If a newspaper or a media organisation can calculate the financial consequences post-publication, they can also calculate whether or not the benefits of publishing the story without actually approaching the target or their lawyers first outweigh the risk or financial consequences of awards against them, and even costs post-publication.

    So what I have seen is a reluctance by the media generally to put stories pre-publication and to stand back and await the fallout, if you like, after publication.

    That has two effects. Firstly, some people view it as once the stable door is open and the private information is in the public domain, what's the point in litigating after the event? It only reinforces and reminds the reader, and those who perhaps didn't even read the information, about the private information, so there's a natural deterrent post-publication, in some people's minds, to commence proceedings.

    Secondly, so far as defamatory material is concerned, I suppose there is an easier outcome for the defendants in any action post-publication, and that is to make an offer in order to satisfy the claim.

    So certainly so far as private information is concerned, I've detected and seen a reluctance over the last few years by the media to actually put stories pre-publication.

  • Yes. That's helpful, Mr Shear. It appears to us the distinction between stories which are private and true, where there's a pure privacy issue, and stories which are private and untrue, where there's a privacy issue and a defamation issue.

  • Yes, there is a technical distinction between the two.

  • David Sherborne, who I've instructed, as I have Hugh Tomlinson, and I have debated over the last ten years as to the effect or the potential to bring privacy actions where there is the notion of false privacy, where in order to contest the information, the private information, you have to reveal some private information, and therefore whatever one does, by contesting it, one is opening one's private life to inspection by others in circumstances where you would not ordinarily wish to do so.

    And you're right that that overlaps with the potential for defamation proceedings as well, because obviously the consequence of false privacy or false information is a claim in defamation after publication.

  • Yes. Can I deal with the perhaps the pure privacy point and the genie out of the bottle issue, and that locks in with the issue of pre-notification. Of course, if the target is given the chance to apply for an injunction, that which is in the bottle has the chance of remaining there. From your own personal experience, are you able to say how often this opportunity is now being given to clients of yours?

  • Increasingly rarely. I think it's proportionate to the size and nature and possible impact of the story. The bigger the story, the less likely the opportunity is given. I've run probably as many, if not more than any other -- I've run more pre-publication anonymity injunctions or -- than possibly any other lawyer in the area, or have started to commence them and have newspapers back down. I would say at one point we were looking at or in confrontation with the larger newspaper groups almost every weekend -- and it is more at weekends than during the week because the Sunday tabloids have more of an opportunity to build up a story and ordinarily a larger budget to do so.

    Over the last few years, that's receded dramatically, and it's not just the coincidence of this Inquiry and the prominence of the phone hacking scenarios; it's more about a change in behaviour and a reluctance to be, if you like, knocked off a story by the media generally.

  • Yes. It might also depend on how High Court judges are responding to these applications, and of course we don't get much of a sense of that because of the very nature of the application. We see the judgments in the contested damages cases, of which there are quite a few. But is the position this: that the High Court judge will wish to see demonstrated a clear public interest in the breach of privacy?

  • Certainly. Let me be absolutely clear about this. Seeking and obtaining an anonymity order is no easy thing. They are extremely hard fought. Those on the opposite side, our adversaries at the media, do not take them lightly, and the judges who hear the application want to be assured that the individual's rights have been fully engaged, firstly. That's the most obvious point, whether or not there is an inherent right to privacy in the information which the section of the media is seeking to publish.

    The second point is whether or not the balancing act in relation to public interest has been outweighed by the press' desire for freedom of expression, and appropriate freedom of expression, or alternatively the individual's rights. Don't get me wrong with this. I echo the last witness's sentiment that for us to live in a democracy of the type that we all desire to live in, we need a strong and effective and free press, and I believe that that balancing act in relation to public interest is an absolutely vital part of the process, and it is, as I say, hard fought, but almost invariably, certainly with respect to the sensationalist and titillating stories which we've spoken about, it's very, very hard, if not occasionally impossible, to detect a public interest rather than a sort of faint interest by the public in being titillated and inserting themselves into the private lives of celebrities.

    I'm afraid that that's the sort of background as to how those injunctions occur. If one can demonstrate those two ingredients, then one has a fighting chance of persuading a High Court judge that an anonymity order is appropriate.

  • Thank you. In paragraph 14 and following of your statement, you deal with a specific matter which arose in 2003.

  • An alleged rape incident. Is there anything you wish to add to that or highlight, Mr Shear?

  • I suppose it's an example of how a newspaper might seek to bring into the public domain information about which, if they brought into the public domain themselves, they would suffer either risk of defamation actions or risk of privacy actions, and I suppose in that particular instance, the individual involved was -- I used the expression there "vilified", because he was unwilling to participate in or to condone intrusion into his private life and therefore whilst he was a high profile footballer, at the same time he wanted to retain a private life, and the newspapers didn't appreciate that he would contest that -- their intrusion, and in this particular instance or circumstance -- I can give you some details because there's quite a lot in the public domain already.

  • There were a group of footballers who were staying at the Grosvenor House Hotel. They were the subject of a complaint by a young lady that she had been sexually assaulted and raped. I acted for the footballers concerned. Unfortunately for one of my clients, he was also staying in the hotel and was probably of more interest and had a higher profile than the other footballers and was the vilified footballer who I mentioned a few moments ago. There was a -- I think a clear focus by the newspapers to identify him as being the likely potential accused, if you like, and to bring his name into the public domain, by inference and suggestion, by the placing of stories and pictures in close proximity to the articles as they were published.

    I mean, this was as very high profile event that was front-page news for several weeks. There didn't seem to be much interest in actually identifying whether or not he was -- it was appropriate for him to be brought or his name to be brought out in this fashion, and we let it be known that he was not actually present at any event about which he could be -- should be of any concern to him or interest to them, but they went ahead and inferred his involvement and we subsequently sued and -- we subsequently sued and the matter was --

  • Yes. So in the end it was the law of defamation which provided the resolution?

  • Yes. I think that there was a point where so many people were -- there was so much in the way of suggestion and inference that his name was being bandied about as the likely instigator or perpetrator, and it was being traded on the Internet, and so he felt that he had to come out and actually clear his name voluntarily. And you know, not only is it embarrassing in that circumstance; people actually remember the wrong part of the story as well as the right part of the story, for his activity and for his willingness to come out and say, firstly, "I was not involved and they've tried to involve me", and secondly also for his -- I suppose his willingness to pursue the media after the event, he for many years after the case was resolved became the subject of unwarranted attention as well, almost on a vindictive basis by many sections of those newspapers that were the subject of our proceedings.

  • You refer to the issue of what you call revenge-fuelled attacks in paragraph 23, and you mention a specific case which, for obvious reasons, you can't delve into the detail of. This is paragraph 24. You do refer to a three-year campaign by the press, which presumably followed the libel settlement. This is paragraph 25.

  • I know it's going to be difficult to give examples without revealing perhaps the identity of your client, but is there anything more that you can say about that on a sort of anonymous basis?

  • I think that this particular instance was particularly disgraceful, actually. I think that the notion that they had any belief in the integrity of the story was completely set aside by what we learnt later on. This appeared to be an opportunity by newspapers generally to buy a video which contained supposedly explicit material. The newspaper concerned decided not to buy the video but publish an unsubstantiated story which did not seek to identify but only create speculation about our client.

    We -- the way in which they did it was intended to either identify him for the benefit of those who were able to reconstruct a pixelated image by cross-referencing it on -- it was pixelated with a silhouette -- by cross-referencing against photographs that were published in other media and therefore, if you like, bring in his name.

    What they didn't appreciate is that jigsaw identification is actionable. We contested it and the consequences of that is that not only was he, I suppose, a general target of interest because of his ability and talent as a professional sportsman, but also in other areas, but there was definitely an element of a revenge-fuelled fervour, because there seemed to be a desire to, if you like, dish out retribution and they were determined to prove something that was damaging to his reputation or to his private life as part of the, if you like, the quid pro quo of having the temerity to take on the national media in those circumstances.

    And, you know, if any person is put under a microscope, an intensive microscope, and if there are large amounts that are being bandied about for the provision of information, the old style chequebook journalism, together with, if you like, the focus and intensity of targeting a personal, together with the -- what appears to be a systemic approach to surveillance with phone hacking and other facilities, provides some results, and those results were certainly exploited beyond what was, I feel, appropriate or even vaguely in any form of public interest scenario. So it's excessive.

  • You have assisted the Inquiry with analysis, from your perspective, of the business model of newspapers and the risks they take, you say, with the calculation, conscious or otherwise, that in the end circulation figures were be increased and that will cover any damages in defamation or privacy they might have to pay. May I ask you, though, about the business model of solicitors' firms such as yours, because this is a point which I'm sure the press would wish me to make of you. Is it right that in many of these cases you work on conditional fee arrangements with your clients?

  • On some, yes, I do. I've only done so for the last, I suppose, four or five years maximum. It's -- I did it for -- I started to do it for two or three reasons, and it's not only in the area of media or privacy-related or defamation-related work. I do it in other areas.

    It's to, if you like, balance out the power quotient between the parties who are adversaries. It's also to utilise the potential of risk and also, if you like, to create a dialogue between the solicitor who's acting for my adversary and that adversary, so that whether it's in a commercial case or whether it's in a media or defamation case, that dialogue about the consequences of pursuing a defence in an action are often brought home very clearly when there's a discussion about finances that are involved, and I've noticed that those cases where there is the -- a CFA, conditional fee agreement in place are often more likely to settle, not because the opposing party is concerned about whether or not they're actually going to win or lose the case, but it's more about actually accelerating and bringing earlier in the action that consideration of whether or not it's worthwhile elongating the case and continuing the defence because if they lose they're going to -- the costs will increase.

  • If I put the point of view of the opposing party. Imagine this scenario. You've told us that damages in privacy cases are not particularly large. The largest that's been awarded is £60,000.

  • Imagine a case where the opponent, the claimant, is on a 100 per cent CFA. A commercial firm such as yours, obviously you will employ appropriate counsel to represent the client. The legal costs are going to get out of hand, to use the vernacular, very soon, and therefore the newspaper calculates, even with potentially defensible cases, that they are almost compelled to settle those rather than fight them because the risks are now disproportionately high. Isn't that right?

  • No. I don't accept that for a moment.

    Let's look at a case -- for example, you mentioned the highest case at £60,000. That's no more than sort of a very gentle parking fine in proportion to the turnover and the financial returns on publishing very high-profile stories. If one puts it into some form of a context, the highest damages award at 60,000 does not really compare to the premium being paid to the kiss-and-tell girls at the end of the story provision equation. If the newspapers feel, as they should do on quite a high proportion of the cases, that they are at risk of losing on a case, then they clearly have the opportunity to settle that case by making a sensible and appropriate and proportionate offer in settlement.

    Now, if they do that early, then the consequences of CFA do not actually bite upon them as to the adverse costs or the escalation of the adverse costs. Let's also be clear about this: the maximum consequences to a newspaper are double, so it's 100 per cent uplift if all of those on the other side, including the solicitors and the barristers, are all on 100 per cent uplift, and the case is found to warrant 100 per cent uplift. But I can tell you I've done cases that are CFA-based and I've taken them to assessment as well as they ordinarily go to assessment, and actually, as in most litigation, the courts only award something in the region of 65 to 75 per cent of the costs on assessment to the winning party, and therefore there is a heavy dilution to the, if you like, 100 per cent uplift in any event.

    Really, the risk to the newspapers of a CFA biting are only restricted to those cases where they actually lose them. I do not believe there is a real deterrent factor there where they have a significant prospect of losing. Really, any litigant, where they have a case where they believe that they have a less than 50 per cent chance of winning that case, should really be settling out in any event.

  • Okay, Mr Shear. Approximately how many cases over the last few years in this area have you done on a CFA? Approximately?

  • Excluding the phone hacking cases that we're conducting at the moment, no more than a handful. Maybe six or seven.

  • Have you lost any of those?

  • Can you give us some idea of the --

  • Sorry, can I just interject? You will appreciate that when one assesses whether a CFA is appropriate to enter into as a solicitor, we weigh up the merits of the case very carefully, because we're taking a significant risk in investing our time --

  • -- into that case. So I wouldn't take a case which I didn't believe was likely to have good or very good prospects of success, and so therefore one would only choose an appropriate case to enter into a CFA on.

  • That's very sensible. Unless there's no doubt about it, the risk assessment is carried out the solicitor and, if appropriate, counsel before any significant work is done, but enough work for you to evaluate whether it's a good, bad or indifferent case. That's right, isn't it?

  • And your policy, probably quite prudently, is only to take cases which have a better than 50 per cent chance; is that correct?

  • From the newspapers' perspective, if you imagine the uncertainties of litigation, we can all see cases which are stone cold winners, stone called losers, but many cases fall in the middle, the 40 to 60 per cent chance of success bracket. The existence of a CFA agreement will cause a prudent newspaper to be more cautious in relation to litigation and at least possibly to adopt a more defensive approach and settle it earlier. Wouldn't you agree with that?

  • Not necessarily. I believe that there has, over the last few years, I suppose, since the evolution and development of privacy law in this country and the passing of the Human Rights Act, been a slightly strange attitude and an opaque view about what is and what is not in the public interest, and this sort of devotion to promoting a right to publish because of role models and hypocrisy became a sort of a ready mantra, and I think it's pervaded through the decision-making process. So even where there is a clear case where private information has been utilised and disseminated and that actually it looks like -- it looks pretty clear that there was no proper public interest ground upon which the media went on to publish it, because they haven't been able to identify evidence or submit that evidence, they've still gone ahead and contested the cases.

    I think it's partially because they see it as not just one battle but an ongoing war, and that they feel the necessity to maintain arms at every single battle, even though they may look like cases that shouldn't be contested, and I think that's also pervaded through to the way in which they've then, if you like, published either the story or recrimination in relation to the consequences of their publication, whether it be defamation findings against them or privacy findings against them by either seeking to vilify the High Court judges who have heard those cases, or the participants in the action in further targeting them later on.

    So it kind of blends through it. I don't think there's necessarily a totally rational view with which some of these cases are -- in which the media have continued to contest them is maintained.

  • Yes. It's right to say, though, in relation to CFAs, two things. First of all, they're under close scrutiny following Lord Justice Jackson's report, which we know about.

  • And secondly, as I mentioned this time last being, there is jurisprudence in the European Court of Human Rights, Miller v MGN, I think, which specifically say on the facts of that case -- it was Naomi Campbell's case -- that there was a breach of article 10 of the Convention in relation to CFAs. So these are all matters which will need to be considered.

    May I touch on, though, one aspect of the public interest and suggest that in the cases which fall in the middle of the spectrum, there are quite difficult judgmental issues.

    We can quite see cases on one end of the spectrum where -- I'm giving you a hypothetical case -- a politician -- and this has been mentioned -- takes a particular stance in relation to family life, that stance is made explicit, and then, unfortunately, the politician lapses from that in his or her private life. There may be not much dispute about that sort of case, but the identification of a public interest in exposing the mismatch, to put it in those terms, may be quite clear. Is that acceptable?

  • Then on the other end -- and maybe we'll be seeing evidence bearing on this a bit later in the week -- we have successful people who have bent over backwards to protect their privacy, in particular the privacy of their children, where maybe it's very difficult to see a proper public interest in delving at all into their private life. Those quite straightforward cases.

    What about cases in the middle and perhaps some of the role model cases? Aren't those cases so inevitably bound up with public expectations about how people should behave -- maybe footballers in a certain position in a national team or whatever, just to give you one possible example -- that it's very difficult to be dogmatic as to where the public interest lies. In the end, it's a matter of opinion, isn't it?

  • I think that there are distinctions between the different classes or groups of those to whom you refer. Like you, if I -- if one of our elected officials was transgressing in a way that diminished the standing which we should hold them in, then I would want to know about it. If there was some event that was occurring that related to the wellbeing of society, I would want to know about it and I'm sure everyone else would want to know about it, and therefore their rights to privacy in those circumstances are clearly diminished. But you can normally separate what is private information from what is information that should be disseminated in the public interest.

    When you speak of role models, or when you speak of those who play football, you know, there are different categories there as well. There are those who have to make their living from promoting their onscreen persona and therefore have to support that persona with marketing activities such as actors or actresses who appear in high -- large motion pictures. They have to go through a process, but do we actually know the person? No. We know their on-screen persona. We know the persona which has evolved through our perception of what they're about.

    I believe that they are still entitled to a private life, and the same goes for professional footballers. It's hard to understand how the suggestion that all professional footballers, or even those that play for the national team, should be automatically considered to be a role model to all who read the newspapers or all who watch them play. The main reason why they've achieved that success is because of their on-pitch or on-field ability and excellence, largely as a result of having decided from a very early age that they wanted to be a professional sportsman. They haven't actually decided that what they really want to be is a professional sportsman who also appears in the newspaper or in the media, because the vast majority of our professional footballers earn very, very, very little money from off-pitch activities. It's only an absolute handful who have earned any significant sums, and only one or two of them who could fall into the category of being a crossover between professional sports and general media profile.

    So I don't accept it so far as the professional footballers are concerned, unless one has a case, and there are cases, that do stand out as obvious cases where there may be public interest reasons why that information should be disseminated, but the overwhelming majority are private.

    There's one further point I would like to put on that. This mantra of journalists and lawyers who have worked for the News of the World and other newspapers constantly saying, "Oh, your client's a role model, they're a role model, look, they have acted as a hypocrite", and to hear of that from the senior journalists who I knew extremely well at the News of the World and the editors and the editors of the various -- whether it be from news or features or sports or whatever, and hearing this over and over again about how my clients have been hypocrites because they'd had, I don't know, an additional relationship or whatever, to then learn of the activities of the News of the World, whilst they had supposedly been seeking to identify the hypocrisy of others, and yet they themselves, throughout this period, were acting unlawfully, is the ultimate in hypocrisy, in my view.

  • One can see the weakness of the tit-for-tat argument, but that be said, the present England manager has supported the view of the journalists in relation to the England captain a couple of years ago. It took him, I think, six minutes to sack the captain for failing to be the role model he was supposed to be, so the journalistic view is not necessarily out on a limb, is it?

  • I'm never quite sure to the extent of which the decision-making of an England manager is detached from the marketing and PR people who operate it, but you're absolutely right. There may be positions within public life, such as the captain of a national team, where standards of their private life are expected by those who place them into those positions to be higher than others. But fine, what are we talking about there? We're talking about a relatively few people. Most people can actually separate their public engagements, actions and, if you like, activities, from those which are private.

    I mean, I have no -- other than my activities as being a lawyer acting for people perhaps in the media or for large companies, I have no public persona. I can separate out my private life from what I do and act on behalf of clients in relation to, and most people in public life have been adept at actually separating out those circumstances, especially when it comes to their family circumstances and children and elderly parents, et cetera.

  • Well, Mr Shear, thank you for bearing with me. I've given you a bit of a platform. You have taken up the opportunity very eloquently, if I may say so. So it's absolutely clear, others who will be in a position to express a contrary view, will be given exactly the same courtesy, but I am grateful to you for coming and I have no further questions for you.

  • I have three topics which move it back a little bit, and each arise from something you said.

    You spoke about the concern of your clients following 2004 about the question of interception and then finding about the Mulcaire notebook, and the intrusiveness that you were experiencing through your clients.

    What I'd like to know is whether that has stayed the same, got better or worse in the years since 2006, 2007, 2008, as we've learnt more and more about what's going on. In other words, what I'm trying to pick up on is the question: "We've understood it", say the press, "we've got the picture, and it's now very different".

  • You give a number of time periods there.

  • Yes, and you can talk all the way through them.

  • Sure. I actually think that the biggest separator has occurred perhaps in the period from the summer of this year onwards, and then before then from about the mid-part of 2010. So I'm dealing with the time period where there has been the greatest sensitivity and probably the fewest stories and the least intrusion has occurred whilst, I suppose, the microscope of this Inquiry and the prospect of phone hacking claims are most apparent and clear.

    When one goes backwards in time, and I recall that the periods from about 2003, 2004, and that goes back to several cases where I was acting, to 2005 in relation to some high-profile matters that I was involved in, I think that there was an atmosphere not just of complacency but also that they were almost untouchable and therefore their activities became incredibly intrusive and that there was a fever pitch of trying to produce more and more and more detailed stories during that period with a far lower recognition for either consequences or private -- or personal private rights.

    So I think it accelerated and increased during the period from about 2003 to about 2008 and 2009, and has receded. Whether it's temporary because of the focus of this Inquiry, only time will tell.

  • So there's something potentially positive come out of it anyway.

  • Out of your Inquiry? I'm sure that -- if I can morph that into perhaps a further question, I think if all that comes out of this is a more effective way to facilitate a body that investigates and regulates and trains our media so that it is an effective, if you like, counterbalance to ensure an appropriate democratic process, then, you know, if that's all that comes out of it, that will be a very good thing, an extremely good thing, because I think that some of the proportionality and balance had not just eroded but become almost ignored. I think that people lost their ethical compass here, and it became systemic so that there was a real weight and an incentive for people to push the boundaries further and further, and that's why this sort of feeling. I almost detected it as a kind of -- as I mentioned before, this view that they were untouchable and could do almost anything.

  • All right. The second question is to some extent linked. You were talking about the question of prior notification and you told Mr Jay that there was a time when you were in touch with newspapers almost every week when there was prior notification of potential stories, but that had decreased dramatically, and you explained it because of the damages and the balancing risk that you perceived the newspapers were taking.

    What I want to know is: have there been in this period fewer stories? In other words, if the line of stories had remained the same, then you would expect increased involvement of you post-publication, whereas previously you'd been able to dampen down the risk of publication of stories. If, of course, there aren't more stories, then that itself might reveal greater responsibility or a greater decision-making being taken by the press not to pursue particular lines.

    Do you see the question?

  • I think I do. I think recently there have been fewer stories which transgress. I think historically what occurred was that, you know, the law of privacy evolved gradually so that originally the reason why the press were putting stories to us was to evaluate the risk of defamation damages or damages arising from defamation that occurred post-publication and they would assess that risk pre-publication, and also to assess whether or not they would effective have some resistance or no resistance from publishing a story or to acquire additional information.

    What actually occurred was that as they put those stories to us and the law or, if you like, the scope and the way in which privacy arguments could be deployed increased, there was a crossover, so that as they put particular stories to us, we could identify whether or not they were appropriate stories to contest publication at all on the grounds that they stepped on the personal or individual's rights to privacy.

    But what also occurred at the same time was that there was an increase in volume of stories being generated or investigated, so that perhaps from, I don't know, the late 1990s to the early part of 2000, there would be maybe one sensationalist, titillating Sunday story that was really a kiss-and-tell perhaps once every three or four weeks. It accelerated and increased dramatically during the sort of 2003, 2004 and onward era.

    So there's lots of different dynamics to what was happening in the number of stories and the reasons why they did or did not become published.

  • There's a knock-on to that, of course, that you may be acting for the celebrities and the famous who have the wherewithal firstly to instruct you, or even to know about you, and second, to do something about it if they want to. Do you have any observations upon the risks to those who do not have the wherewithal or the money or the knowledge to engage with the press at this sort of level?

  • I think unless -- there's two parts to that, isn't there? There's those people who have had stories published about them where they feel that to contest those stories and to commence proceedings is either continuing the pain and therefore become deterred from doing so, or don't have the financial capability to even consider commencing proceedings.

    I think that's a combination of, if you like, the emotional consequences of having your private life or defamatory statements published about you, coinciding with your financial capabilities, and there are those clients who do have the financial capability but become deterred because they feel that they are confronting organisations which are enormous and which have extremely deep pockets.

    As somebody once said to me, you know, why take on a newspaper when actually they just order up another barrel of ink and you're at risk in the future? And that is something that I've heard regularly over the years that deters people from taking on proceedings -- or taking on the media organisations, because they feel that they will -- it will be a war they will never win, and that at some point that they will just have to give up the process.

    Some people are extremely focused about it and will fight to protect their rights and fight to protect the rights of their families and are very protective of their family situation and will not stand for it, and they're normally the ones that actually have continued and pursued proceedings which have resulted in substantial damages.

  • Okay. The third and final area that I wanted to ask you concerns an area which we're certainly going to have to look at, but which nobody has yet mentioned, which is the Internet. You made the point that I think your footballer was concerned about the jigsaw identification using material from the Internet. Have you had to engage with those that are responsible for putting material out on the Internet? And if so, with what effect? Because that is, in part, the elephant in the room.

  • I've had three cases which have involved the dissemination of information via the Internet, either as a result of, if you like, viral rumours or other means. They've all had different consequences and different dynamics to them.

    It's an extremely difficult problem to confront. I remember the first case that I was involved in that related to that is the Grosvenor House case that I referred to a few moments ago. That case was the subject of huge speculation and a lot of it was undertaken by emails between people who were either emailing websites or blogs or amongst people within businesses, and there is -- it is extremely difficult to prevent, if you like, identification or, I suppose, focus by dissemination of information on the Internet.

    On that case, we made it very clear to employers of large organisations that they should not condone what were defamatory emails by being passed within their organisations and we did actually manage to prevent some of the fall-outs by using that sort of technique.

    Interestingly, in another case that I had, where it was regarding the false identification -- or the identification of the client, it's the pixelated or silhouette image matter that I referred to, one of the issues that the newspaper concerned raised was that, irrespective of the fact that it had been identified on the Internet who the person was in the image that was silhouetted, that relatively few people became aware of the identity of that person because it was being traded on the Internet, it was on an Internet publication and then it sort of morphed its way very gradually into the mainstream media. On that occasion, I actually used the Internet to undertake a poll to find out how many people did manage to identify the person.

    So it cuts in both ways. You know, it is a tool that can be used, but it is an extension of the media which is very difficult to moderate. I have identified situations in the past where I felt that it was going to be counter-productive to attempt to restrict or to change the agenda under discussion. It's almost like the finger in the dyke; you can often create a bigger consequences by contesting than you would by allowing it to pervade.

    I've also noticed one other feature, which I think is relatively sinister, and that's more recently where I believe that sections of the media have instigated or stimulated media -- Internet-led discussion and debate and, I suppose, tittle-tattle, in order to bring into the Internet culture information which then supports and reduces the risks and damages which would be available to the mainstream media if repeated within the mainstream media. So I have seen an element where the Internet is being used or utilised in a very, as I said, sinister fashion, in order to disseminate that.

  • Have you attempted to engage with any of the Internet service providers?

  • Yes, we have. Certainly with respect to Google and Twitter, but that's more as a -- in situations where they have been custodians of the information, the same thing with, perhaps, Wikipedia as well, where information has been brought into these media forums and that we've engaged them and identified the assertions or information generally that's being passed between people and asked them to moderate it or remove it.

    There's a variety of responses that one receives. Often it's very slow. I think they're concerned to become too involved or too much of a participant.

    So far as Google is concerned, it's a difficult situation to confront because they don't have any of their servers in the UK, and therefore one is placed in a position where one is seeking to persuade them of what is appropriate as opposed to inappropriate conduct or communication. They've become more responsive.

    I think Twitter is a difficult social media forum to control or to moderate. People close their Twitter accounts. I've had a number of clients whose names have been utilised by others to open Twitter accounts and then utilised to then disseminate defamatory or other material, quite wrongly, and it's quite difficult to get that dealt with.

  • Thank you. Thank you very much indeed.

    There's no applications you make under section 10, Mr Sherborne?

  • Sir, no, there isn't. Thank you very much, though.

  • I think that's probably enough for the morning, and we'll adjourn now and resume at 2 o'clock, if that's all right. Thank you.

  • (The luncheon adjournment)

  • Sir, the next witness is Mr Hugh Grant, please.