HRH the Duchess of Sussex v Associated Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Warby |
| Judgment Date | 05 March 2021 |
| Neutral Citation | [2021] EWHC 510 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: IL-2019-000110 |
| Date | 05 March 2021 |
[2021] EWHC 510 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BUSINESS AND PROPERTY COURTS
INTELLECTUAL PROPERTY LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
THE RT HON. Lord Justice Warby
Sitting as a Judge of the High Court
Case No: IL-2019-000110
Ian Mill QC, Justin Rushbrooke QC, Jane Phillips and Jessie Bowhill (instructed by Schillings International LLP) for the Claimant
Antony White QC, Adrian Speck QC, Alexandra Marzec, Isabel Jamal and Gervase de Wilde (instructed by Reynolds Porter Chamberlain LLP) for the Defendant
Hearing date: 2 March 2021
Approved Judgment
I direct that 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
This is a claim for misuse of private information, breach of data protection rights, and copyright infringement. Details of the claims are contained in previous judgments of mine and need not be rehearsed here.
This judgment deals with matters consequential on my judgment on the claimant's application for summary judgment on her claims in misuse of private information and infringement of copyright. I heard argument on that application on 19 and 20 January 2021. On 11 February 2021 I handed down my reserved judgment (“the Summary Judgment” [2021] EWHC 273 (Ch)) and made an order that summary judgment should be entered for the claimant on liability for misuse of private information and, to the extent indicated in the Summary Judgment, on liability for copyright infringement.
This process was carried out remotely, without attendance from the parties. A date had already been fixed to deal with consequential matters, whatever the outcome of the application. The hearing was fixed for Tuesday 2 March 2021, with a provisional time estimate of 1 hour. Again, this was a remote hearing.
The written skeleton arguments were filed on Monday 1 March 2021. They made clear that this was to be a hearing involving a good deal more than the usual argument on costs and permission to appeal. An email from the defendant's solicitors suggested that in the light of this, as much as half a day might be needed. I agreed to allow half a day, to include time for judgment. There was still some room for manoeuvre, as my next appointment was not before 3.30pm.
In the event, the hearing ended at 3.25pm. It had lasted for a full 4 hours, of which 3 1/2 were taken up by Counsel's arguments. There was enough time for me to announce my decisions, and to give some reasons. But it proved necessary to reserve my decisions on some of the detail, and my reasons on some of the issues. Hence this judgment.
The Summary Judgment
The Summary Judgment is detailed, and runs to some 29,000 words, but in short I found that (1) the claimant was entitled to summary judgment on liability for misuse of private information; the defendant had no real prospect of successfully defending that claim, and there was no other compelling reason for a trial of that claim; (2) the claimant was entitled to summary judgment on the issues of subsistence and infringement of copyright, though some issues remained to be tried.
Those remaining issues arose from the defendant's contention that the claimant is not, or might not be, the sole owner of any copyright that subsisted in the Electronic Draft of the letter which is the subject of the claim. The putative co-author was Jason Knauf, of the Kensington Palace Communications Team, who was said to have been “involved” in the drafting process. The possibility was raised that this, coupled with his official role, might mean that there was a separate Crown copyright. I said this (at [166] and [168]):
“The defendant's factual and legal case on this issue both seem to me to occupy the shadowland between improbability and unreality. The case is contingent, inferential and imprecise. It cannot be described as convincing, and seems improbable. It lacks any direct evidence to support it, and it is far from clear that any such evidence will become available. It is not possible to envisage a Court concluding that Mr Knauf's contribution to the work as a whole was more than modest. The suggestion that his contribution generated a separate copyright, as opposed to a joint one is, in my judgment at the very outer margins of what is realistic.
…
I am not, however, persuaded that the need to try these issues carries with it the need for a trial of all the issues, notwithstanding the conclusions I have already expressed. That would not be consistent with the overriding objective. The trial will be the trial of limited issues within the copyright infringement claim, not a trial of the whole claim. The outcome could have consequences as to the extent to which the claimant can establish infringement of her copyright, and the remedies she can recover. But these in substance and reality are matters that go only to remedies, and are capable of resolution by case management. They are not a compelling reason for a trial of other issues on liability in this part of the claim. There is no room for doubt that the defendant's conduct involved an infringement of copyright in the Electronic Draft of which the claimant was the owner or, at worst, a co-owner.”
I summarised my overall conclusions on the copyright aspect in this way (at [169]):
“The claimant is entitled to summary judgment on the issues of subsistence and infringement. She is bound to prove that she was the or an owner of the or a copyright in the literary form of the Electronic Draft which copyright was infringed by the defendant, and the defences advanced would be bound to fail. There remain for resolution by way of a trial the issues — of minor significance in the overall context — as to whether the claimant was the sole author or whether the involvement of Mr Knauf — whatever it proves to have been – made him a co-author; and if so, what consequences that has as on the extent of the infringement of which the claimant may complain, and on the remedies available.”
The consequential issues
I read and heard argument on four main issues.
(1) What are the remaining issues in the action, and what is the most appropriate procedural mechanism for dealing with them?
(2) What remedies are appropriate at this stage? This issue raised a number of sub-issues. These are whether the claimant is entitled to:
(i) a declaration as to her rights;
(ii) injunctive relief to restrain repetition of the acts complained of;
(iii) an order for publication and dissemination pursuant to Article 15 of the Enforcement Directive and PD63;
(iv) an order for delivery up and/or destruction of infringing copies of the Electronic Draft;
(v) an account of profits for copyright infringement; and/or
(vi) damages for misuse of private information.
(3) What order should be made as to costs.
(4) Whether the defendant should be granted permission to appeal.
Some context
The claimant sought all the remedies I have listed at 9(2) above. She made clear that she was willing to waive her right to disclosure before making an election between damages and an account of profits for copyright infringement. Her position in relation to damages for misuse of private information was that, subject to certain conditions, she would agree to accept an award of nominal damages. She describes this as setting a “cap” on her damages. The claimant seeks directions that this matter be dealt with at the further hearing which all agree is required. This was presented by the defendant as the claimant effectively abandoning all her pleaded claims of damage.
This is a familiar posture, often adopted by publishers in defamation cases where the claimant offers to accept an apology and costs, or modest damages, in order to compromise a claim. I do not see it that way. Of course, the claimant cannot adopt this position and seek findings of fact in respect of any of the matters she has pleaded in support of her case on harm. But that is not the same as accepting that the pleaded case on harm is untrue. I accept the explanation provided on the claimant's behalf: that she is seeking to adopt a sensible and proportionate approach to the next stages of this case. The defendant's submission on this point does not seem to me to belong to the real world of this litigation.
That brings me to the conditions under which the claimant stated she was willing to accept only nominal damages for misuse of private information. These were two: that an order was made for an account of profits for copyright infringement, and that there should be no successful appeal against my decision. The defendant's position was that the claimant's reduced claim for damages should be assessed forthwith. It was then argued that it was not permissible for the claimant to seek simultaneously both damages (even nominal damages) and an account of profits, as to do so would violate the principle against approbating and reprobating the same act. I was referred to Ramzan v Brookwide Ltd [2011] EWCA Civ 985 [2011] 2 P & C R 22. That is a case aptly described by Arden LJ as “a remarkable case which involves the assessment of damages and interest resulting from the misappropriation by the appellant …. of a room forming part of a property owned by Mr Ramzan, then a bankrupt.” One of the issues was whether the judge had been inconsistent in awarding the claimant compensatory damages for the profits he would have made from the use of the room, and damages for breach of trust. The Court concluded that there was a single wrong, and...
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