Douglas v Hello! Ltd (No.3)
| Jurisdiction | England & Wales |
| Judge | The Vice-Chancellor |
| Judgment Date | 27 January 2003 |
| Neutral Citation | [2003] EWHC 55 (Ch) |
| Docket Number | Case No: HC0100644 |
| Court | Chancery Division |
| Date | 27 January 2003 |
[2003] EWHC 55 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Vice-Chancellor
Case No: HC0100644
Mr. Michael Tugendhat QC, Mr. David Sherborne, and Mr. A. T. H. Smith (instructed by Messrs Theodore Goddard) for the Claimants
Mr. James Price QC, and Mr. Giles Fernando (instructed by Messrs Charles Russell) for the 1st to 3rd Defendants
Mr. Paul Fallon , Solicitor Advocate, (instructed by Messrs Reed Smith) for the 4th and 5th Defendants
Hearing dates: 16th – 21st January 2003
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The first and second claimants, Michael Douglas and Catherine Zeta-Jones, are well-known film and television stars. In January 2000 they became engaged to be married. This news gave rise to, amongst other things, competition for the exclusive right to publish photographs of the wedding between the third claimant, Northern & Shell plc ("OK!"), the publishers of a weekly magazine called OK! and the first and second defendants ("Hello!"), the publishers and distributors of a similar magazine called in its English version Hello!, its Spanish version Hola! and its French version Oh La!. Such right was conferred on OK! by an agreement in writing dated 10th November 2000 whereby Michael Douglas and Catherine Zeta-Jones granted to OK! the exclusive right to publish such photographs of their wedding as had been both taken by photographers hired by them and approved by them.
The wedding ceremony took place at the Plaza Hotel, New York on Saturday 18th November 2000. The reception was held at the same place and lasted into the early hours of Sunday 19th November 2000. Attendance at the ceremony and the reception was limited to the members of the families of the bride and groom and friends to whom an invitation had been extended. Extensive and elaborate precautions were taken by and on behalf of the bride and groom to exclude those who had not been invited and to prevent the taking of unauthorised photographs by guests, the staff of the hotel or others.
On Monday 20th November 2000 the editor of OK! was told that an unauthorised free-lance photographer had succeeded in taking or acquiring a set of photographs of the wedding which were in the control of the third defendant, Sr Eduardo Sanchez-Junco, the proprietor of the first and second defendants, and were to be used in the forthcoming edition of Hello!. Later that day a consignment of 240,700 copies of that edition numbered 639 arrived at Stansted Airport from Spain.
The claimants took immediate steps to prevent the distribution and sale of any copy of that edition of Hello! In the evening of 20th November 2000 Buckley J granted them injunctions for a limited period. The injunctions were continued until trial or further order by Hunt J on Tuesday 21st November 2000. Hello! Ltd appealed immediately to the Court of Appeal (Ward and Robert Walker LJJ) and a hearing by that court took place later on Tuesday 21st November 2000. Unfortunately the members of that court were unable to agree on the disposition of the appeal and a fresh hearing commenced on Wednesday 22nd November 2000 before Brooke, Sedley and Keene LJJ. At the conclusion of that hearing on 23rd November the Court allowed the appeal and discharged the order of Hunt J. Their reasons for doing so were handed down in writing on 21st December 2000.
At that stage the only defendant to the claim was the first defendant Hello! Ltd. The other defendants were added later, the second defendant Hola S.A. ("Hola") on 19th March 2002 and the third, fourth and fifth defendants Sr Sanchez-Junco, the Marquesa de Varela ("the Marquesa") and her company Neneto Overseas Ltd ("NOL") on 2nd May 2002. On the latter date, Jacob J also added as the sixth defendant Mr Philip Ramey, the photographer who had supplied the unauthorised photographs to Sr Sanchez-Junco, and gave permission to serve him out of the jurisdiction. That order was set aside by Laddie J on 3rd December 2002 and the claimants appealed with the permission of Arden LJ.
In the meantime there had been substantial correspondence between the solicitors for the claimants (Theodore Goddard) and those for the first three defendants, to whom I shall refer collectively as "the Hello! Defendants" (Charles Russell) concerning both the veracity of the evidence adduced by Hello! Ltd in the Court of Appeal and the adequacy of the documentary disclosure given on 18th February, 19th March, 30th May and 29th October 2002. On 26th November 2002 witness statements for use at the trial then fixed for Monday 20th January 2003 were exchanged between all parties.
The principal application now before me was made by the claimants on 13th December 2002. They seek an order that the defences of the Hello! Defendants be struck out and judgment be entered against them for damages to be assessed pursuant to CPR Rule 3.4(2) or the inherent jurisdiction of the court. The grounds for the application, duly particularised, are that the Hello! Defendants
"1) made or caused to be made false statements to the Court of Appeal in November 2000 knowingly or without an honest belief in their truth, and
2) deliberately destroyed or disposed of documents, and
3) made false disclosure statements knowingly, or without an honest belief in their truth
and have thereby interfered with the course of justice by so doing and/or have thereby put the fairness of the trial in jeopardy, and rendered any judgment that may be entered in their favour unsafe and further proceedings unsatisfactory and prevented the Court from doing justice."
The claimants also seek permission to re-amend their particulars of claim. Both applications are opposed by the Hello! Defendants. The Marquesa and NOL also oppose the application for permission to amend. In addition they have applied for an order that the particulars of claim be struck out as against them under CPR Rule 3.4(2)(a) or (b) on the grounds that they do not disclose reasonable grounds for bringing the claim against them or any serious issue to be tried as between the claimants and those defendants.
Thus the issues before me are:
a) Whether to strike out the defences of the Hello! Defendants on all or any of the grounds relied on;
b) whether to give permission to re-amend the particulars of claim; and
c) whether to strike out the claims made against the Marquesa and/or NOL.
Before dealing with them I should mention three unusual features. The first is the timing. The hearing before me started on Thursday 16th January 2002. By then the trial had been postponed to Monday 27th January 2002 with a time estimate of two to three weeks. In the course of the hearing I postponed the commencement of the trial for a further week to Monday 3rd February 2002. The hearing before me concluded on Tuesday 21st January 2002. (I add as a postscript that on Thursday 23rd and Friday 24th January 2003 the solicitors for the Hello! Defendants faxed and delivered by hand to my clerk a second statement of Ms Neal for use at the trial served on them by the solicitors for the claimants. I have not read that statement. It was plain from the correspondence that the solicitors for the other parties had not agreed that I should. The hearing in court had concluded on Tuesday 21st January and I had not asked for or given permission to the Hello! Defendants to adduce any further evidence.) Second, at the time of the hearing before me the constitution of the action was still uncertain as the appeal of the claimants from the order of Laddie J was due to be heard on Wednesday 22nd January 2002. I understand that the Court of Appeal allowed the claimants' appeal so that Mr Ramey has again become the sixth defendant. The third is the fact that four witnesses were cross-examined before me on issues which may also arise at the trial. I have made such findings as appear to me to be justified by the evidence, oral and documentary, before me. It must be borne in mind that the trial judge is likely to hear a good deal more evidence than I have and may arrive at different conclusions.
The Facts
In order to explain the nature of the applications, the submissions made to me and my conclusions on them I must describe the facts in a good deal more detail. It is not necessary to give any more detailed introduction of the claimants but I should do so in relation to the defendants and other individuals involved.
Hola is a company incorporated in Spain. It publishes the three magazines I have mentioned. Hello! Ltd is a company incorporated in England. It provides editorial, commercial and administrative services to Hola. Sr Sanchez-Junco is one of two owners of Hola and the Editor in chief of all three magazines but he is not a director of either Hola or Hello! Ltd. The managing director of both Hola and Hello! is Sr Javier Riera. Mr Anthony Luke is the co-ordinating editor of Hello! Snres Sanchez-Junco, Riera and Luke are based in Madrid. The relevant individuals based in London were Mrs Cartwright, Mrs Doughty and Ms Sue Neal. Mrs Cartwright and Mrs Doughty were respectively the publishing director and financial controller of Hello!. Ms Neal was the picture editor of Hola. Sr Sanchez-Junco, Sr Riera, Mrs Cartwright and Mrs Doughty were cross-examined, the first two through an interpreter.
The Marquesa describes herself as a media consultant. Her business includes acting as an intermediary in...
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