Associated Newspapers Ltd v His Royal Highness the Prince of Wales
| Jurisdiction | England & Wales |
| Judgment Date | 21 December 2006 |
| Neutral Citation | [2006] EWCA Civ 1776 |
| Docket Number | Case No: A3/2006/0882/CHANF |
| Court | Court of Appeal (Civil Division) |
| Date | 21 December 2006 |
[2006] EWCA Civ 1776
the Lord Chief Justice of England and Wales
the Master of the Rolls and
the Right Honourable Lord Justice May
Case No: A3/2006/0882/CHANF
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
M.Warby QC and P. Saini (instructed by Messrs Reynolds Porter Chamberlain LLP) for the Appellant
H. Tomlinson QC and L. Lane (instructed by Messrs Harbottle & Lewis) for the Respondent
Lord Phillips of Worth Matravers, Chief Justice
This is the judgment of the Court
Introduction
In this appeal the appellant ('the Newspaper') appeals against that part of the order of Blackburne J dated 17 March 2006 which granted summary judgment in respect of part of the claim of the respondent ('Prince Charles') for breach of confidence and infringement of copyright. The claim brought by Prince Charles related to eight hand written journals kept by Prince Charles to record his impressions and views in the course of overseas tours made by him between 1993 and 1999. Copies of these were provided to the Newspaper, via an intermediary, by an employee of Prince Charles in breach of her contract of employment. Summary judgment was given in respect of one of these, the journal that related to the Prince's visit to Hong Kong between 23 June and 3 July 1993 ('the Journal'), when the Colony was handed over to the Republic of China. The Newspaper had published substantial extracts from the Journal in the Mail on Sunday on 13 November 2005.
The Newspaper admits that Prince Charles owns the copyright in the Journal, but relies on defences under the Copyright, Designs and Patents Act 1988 ('the CDPA') to the allegation of infringement of that copyright. The Newspaper denies that the content of the Journal was confidential. Each of the parties has relied upon the impact of the Human Rights Act 1998 and the Human Rights Convention ('the Convention') on the issues raised in this action. Prince Charles alleges that the publication of the extracts from the Journal interfered with his right to respect for his private life and his correspondence under Article 8 of the Convention, so that it constituted in modern parlance a breach of privacy. The Newspaper denies this but alleges, in the alternative, that any interference with this right was justified under Article 8(2) as necessary to protect the rights of the Newspaper and the public under Article 10. Prince Charles accepts that the relief that he has claimed amounts to a restriction on the Newspaper's right of freedom of expression under Article 10, but alleges that this restriction is justified under Article 10(2) as necessary to protect his right to privacy, his copyright and to prevent the disclosure of information received in confidence.
Blackburne J's Order was made in proceedings for summary judgment brought by Prince Charles under CPR 24. Blackburne J concluded that, so far as the Journal was concerned, there was little relevant issue of fact and, insofar as there was any such issue, the Newspaper had no real prospect of succeeding on it. There were, however, substantial issues as to the application of the principles of the developing law of breach of privacy to the facts of this case. These issues were explored before the judge in a depth which was not typical of the ordinary proceeding under Part 24. Thus the skeleton argument submitted on behalf of Prince Charles extended to 44 pages and that submitted on behalf of the Newspaper to 30 pages. The hearing lasted 3 days and the judgment was 44 pages in length.
It seems to us that what the judge did, in effect, was to hold that there was no issue of fact in relation to the Journal that called for trial, so that disclosure and oral evidence were unnecessary, and to proceed to try the remaining issues. The judge resolved those issues in favour of Prince Charles. He entertained, however, full argument as to why those issues should be resolved in favour of the Newspaper and, had he been persuaded by that argument, would have been in a position to give final judgment against Prince Charles.
The preparations made for this appeal were appropriate for determination by this court of the substantive merits of the case, insofar as it relates to the Journal. The skeleton submitted on behalf of the Newspaper is 33 pages in length and that submitted on behalf of Prince Charles is 44 pages in length. Three files containing copies of 42 authorities were prepared for the hearing. In these circumstances we have been in no doubt as to how to give effect to the overriding objective as set out in CPR Part 1. Our first task must be to consider whether the judge was correct to conclude that there was no relevant issue of fact that required a trial. If he was not, then his order must be set aside and a trial ordered. If, however, there is no issue of fact that requires trial, we should treat this as an appeal on the merits that we can determine either by upholding the judge's Order in favour of Prince Charles, or by setting aside his order and giving judgment in favour of the Newspaper. Counsel for each of the parties very sensibly agreed with this course.
Blackburne J's judgment [2006] EWHC 522 (Ch) has not been reported. The convenient course is to annexe it to our own judgment, and we do so.
The facts
In order to facilitate the conduct of this litigation Prince Charles agreed to the full disclosure of the contents of the Journal. These are summarised by the judge at paragraphs 28 to 38 of his judgment and we shall not repeat that exercise. Suffice it to say they are a personal description of Prince Charles' participation in the events that marked the handing over of Hong Kong. These include a banquet which the Chinese President attended and which Prince Charles describes in a manner that is disparaging of the formalities and of the behaviour of the Chinese participants.
The publication of and comments on extracts from the Journal in the Mail on Sunday came shortly after a State visit to London by the Chinese President in the course of which he held a banquet at the Chinese Embassy. Prince Charles declined an invitation to that banquet. The judge summarises the articles in that newspaper and sets out the editorial comment at paragraphs 54 to 61 of his judgment. The front page headline was “Appalling Waxworks”, the phrase used by Prince Charles to describe the Chinese entourage, and the article to which it related started by stating that “Scathingly candid remarks Prince Charles has made about the Beijing leadership can be revealed today – just days after the Chinese President completed his controversial state visit to Britain”. Reference should be made to the judgment for details of the publication.
There were two areas where there was a degree of conflict in the evidence placed before the judge. Mr Warby QC for the Newspaper submitted that these conflicts required to be resolved at a trial. The first area covers the practice followed by Prince Charles in relation to causing or permitting others to see his journals and, in particular, the course that he followed in relation to the Journal. There are issues of fact in relation to this area. The second area relates to the general conduct of Prince Charles in making public his views and seeking to influence executive action and, in particular, to his conduct in declining invitations to two banquets given in London by the President of China, each one on the occasion of a state visit to this country. There is a degree of conflict of evidence as to his reasons for not attending the banquets.
The evidence in relation to the journals is set out in paragraphs 13 to 26 of Blackburne J's judgment. Evidence in statement form on behalf of Prince Charles was given by Sir Stephen Lamport, who was Prince Charles' Principal Private Secretary from 1996 to 2002 and by his successor, Sir Michael Peat. Evidence on behalf of the Newspaper was given by Mr Mark Bolland, who served as Assistant Secretary to Prince Charles from 1996 to 1997 and Deputy Private Secretary from 1997 to 2002. We shall start by setting out evidence which is not disputed.
Over the last 30 years it has been Prince Charles' practice to make a handwritten journal recording his views and impressions on completing a foreign visit. Sir Stephen described these as “candid and very personal, and intended as a private historical record”. Mr Bolland said that “he viewed the journals both as a historical record and as a bit of fun. He would try to make them amusing…”
On his return to this country the completed handwritten journal is photocopied by a member of staff in Prince Charles' Private Office. At the time of the journals which are the subject of this action this was Ms Sarah Goodall. Prince Charles handed her a list of those to whom the journal should be circulated. Each of these received with the journal a letter signed by Prince Charles. The envelope in which these were sent was marked 'Private and Confidential'. The Journal was circulated in this way.
The employment contracts of each of those in Prince Charles' service provided that any information in relation to him that was acquired during the course of his or her employment was subject to an undertaking of confidence and was not to be disclosed to any unauthorised person.
There is an issue as to the number of people to whom the Journal was sent. Sir Michael said that 14 copies were sent to...
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