HRH The Duchess of Sussex v Associated Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Warby |
| Judgment Date | 22 March 2021 |
| Neutral Citation | [2021] EWHC 669 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: IL-2019-000110 |
| Date | 22 March 2021 |
[2021] EWHC 669 (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
Alexandra Marzec and Gervase de Wilde (instructed by Reynolds Porter Chamberlain LLP) for the Defendant
Following written submissions
Approved Judgment
On 11 February 2021, I handed down judgment explaining why I had concluded that there should be summary judgment for the claimant on liability for misuse of private information and copyright infringement: [2021] EWHC 273 (Ch) (“the Summary Judgment”). On 2 March 2021, there was a hearing to deal with matters consequential on the Summary Judgment. My decisions on those issues and my reasons were provided in rulings made at that hearing, and in my reserved judgment of 5 March 2021: [2021] EWHC 510 (Ch) (“the Consequentials Judgment”).
Two of the decisions I made at and after the consequentials hearing are relevant for present purposes:
(1) I decided there should be an injunction restraining further misuse of private information in the Letter (“the Misuse Injunction”) but subject to a proviso (“the Public Domain Proviso”) which I described in this way (at [21(2)]):
“… a limited public domain carve-out to ensure that it does not prohibit publication of a fair and accurate report of the judgment (or for that matter commentary on the judgment).”
(2) I decided I had power, and it was appropriate in all the circumstances, to make an order under PD63 para 26.2 (“the Publication Order”) for dissemination and publication of an account of that part of the Summary Judgment that held that the defendant had infringed the claimant's copyright in the Letter: ibid., [67–70].
No order reflecting the Summary Judgment and Consequentials Judgment has yet been drawn up. That is for two main reasons. I had given the defendant time, after the 2 March hearing, to put in representations about practicalities which remained incomplete at the time judgment was handed down. I had also left some issues of detail for further argument and final resolution. At [69] I referred to the scope for further representations on practicalities. At [72] I made clear that “although I have decided the issues of principle, some matters of drafting remain to be completed” and that the orders I had identified “will not take effect until they have been reduced to writing in final form and issued by way of a formal order of the Court.”
My aim was to make clear that this would not be a case within the default rule, that judgments and orders take effect from the time of their pronouncement ( CPR 40.7(1)). The intended effect – and I believe the actual effect — was not only that there was, for the time being, no order of the Court prohibiting continued publication and obliging the defendant to publish the Statement. In addition, the parties' rights to seek permission to appeal were preserved, as these do not crystallise, and time does not begin to run, until a final decision is made. The time of the final decision, in this case, will be the date of hand-down of this judgment and the associated order. That follows the submission of written argument from both sides on the outstanding issues. The parties have agreed that I should resolve those issues “on paper” without a hearing.
The matters that remain outstanding are these: (1) one issue about the Misuse Injunction — the form which should be taken by the Public Domain Proviso; (2) four issues about the Publication Order: (a) when the statement should be published; (b) the form it should take; (c) whether I should grant the defendant permission to appeal against the Publication Order; and (d) whether I should grant the defendant's application for a stay of the Publication Order pending a possible appeal. The fact that all these applications are before me at the same time avoids the difficulties that can arise if a party fails to seek permission to appeal at the time a decision is made: see Lisle-Mainwaring v Associated Newspapers Ltd [2018] EWCA Civ 1470, [2018] 1 WLR 4766.
The Public Domain Proviso
The issue is a narrow one. The claimant proposes the following wording:-
“provided that nothing in this Order shall prevent the publication, disclosure or communication of any fair and accurate report of the judgment given on the Summary Judgment Application or any fair and accurate commentary on that judgment.”
The defendant objects to the inclusion of the words I have underlined.
The objection is that the inclusion of these words would give rise to the spectre of the defendant being threatened with prosecution for contempt for publishing in good faith a report of the judgment merely because the report contained a minor inaccuracy or was seen by the claimant to be unfair. The risk is said to be even greater in respect of commentaries. The claimant's position is that these objections are misconceived because the concepts of fairness and accuracy are well understood in this context and “there would be no difficulty in assessing whether or not a report and/or commentary is fair and accurate” for the purposes of a contempt application.
In my judgement, the defendant's submissions are to be preferred. “Fair and accurate” are words I used in the Consequentials Judgment but, as the defendant submits, I did so to indicate the aim and purpose of the carve-out, and not by way of definition, still less as a model for the drafting of an order. I was conscious that the wording of such a proviso could pose problems, even in the context of a court report. Unfair or inaccurate reporting might in principle give rise to civil liability. If so, that would be a spur to fairness and accuracy and make the inclusion of those words less important for the due protection of the claimant's rights. In any event, I accept that the risk that reporting may be, or be seen to be, unfair or inaccurate is not one that should carry with it the possibility of contempt proceedings.
Further, it would be wrong to limit the scope of the carve-out for commentary to comment which is “fair and accurate”. I do not believe that is the effect of the words I used in brackets in [21(2)] of the Consequentials Judgment, and it was certainly not my intention. It would be inappropriate for a number of reasons to impose prior restraint on either “inaccurate comment” (whatever that may mean) or “unfair comment” (as to which no yardstick is available). My intention in referring to comment was to broaden rather than narrow the scope of the Public Domain Proviso. The omission of the words “fair and accurate” reflects that intention, and I therefore approve this aspect of the order in the version proposed by the defendant, which satisfies the cardinal requirement that an order of this kind must be clear and capable of being readily understood.
The Publication Order
Timing
The claimant submits that the order should require publication within 7 days of the Court's order. That would mean hard-copy publication on the next Sunday after the Order. The defendant seeks 14 days, in order to have the option of placing the statement in the following week's issue of the Mail on Sunday. In the events that have happened, the options would be Sunday 28 March 2021 or Easter Sunday, 4 April 2021. The defendant's argument is that the news agenda for a future Sunday cannot be predicted in advance, and that allowing this limited measure of editorial freedom would not materially prejudice the claimant or undermine the aim of the Order. I agree with those submissions.
The claimant submits that there should be no further delay in the matter; she has had to wait long enough and should have certainty. Counsel make the further point that the defendant will be unable to tell on 28 March what the news agenda might be on the following weekend. That is a fair point, as far as it goes. But it does not go all the way. This is not red-hot news, of a perishable kind. I also take account here of the conclusion I have reached on the matter of a stay, to which I shall come. Those conclusions mean that whatever order I make it will not give the claimant certainty at this stage.
Form
Mail on Sunday
I accepted the claimant's application for an order that there should be a Notice inside the paper and a Statement on the front page, leading the reader to the Notice. The parties have agreed the...
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HRH The Duchess of Sussex v Associated Newspapers Ltd
...summary judgment ( [2021] EWHC 510 (Ch), “the Consequentials Judgment”), and the second on matters of detail relating to remedies ( [2021] EWHC 669 (Ch), “the Remedies 4 I have now heard further argument, at a hearing to fix directions for the remaining stages of the case. I have ordered ......