Paul Burrell v Max Clifford
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mann |
| Judgment Date | 14 July 2015 |
| Neutral Citation | [2015] EWHC 2001 (Ch) |
| Court | Chancery Division |
| Date | 14 July 2015 |
| Docket Number | Case No: HC-2014000740 |
[2015] EWHC 2001 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mann
Case No: HC-2014000740
Mr William Bennett (instructed by Taylor Hampton) for the Claimant
Miss Lorna Skinner (instructed by LHS Solicitors) for the Defendant
Hearing dates: 25 th June 2015
There are two effective applications before me today, both of them seeking the striking out of this action. The first is based on a limitation point, and the second is based on the premise that this claim can be seen to be not worth devoting any costs or court resources to it, under the principles appearing in Jameel v Dow Jones & Co [2005] QB 946.
Background
The claimant is a former royal butler. The defendant is a well-known publicist, whose activities include the generation, avoidance or control (depending on requirements) of publicity for his clients. In 2002 the claimant approached the defendant. According to the pleaded case of the claimant, he was minded to engage the defendant to manage and control some adverse publicity he was receiving or feared. He pleads that Mr Clifford asked him to write down information about Mr Burrell's relationship with various members of the Royal Family, which was germane to the publicity issues which Mr Clifford might have to manage. Mr Burrell therefore wrote a six page letter containing details of that relationship. It is unnecessary to set out that detail. It is said to contain information that was private which the Particulars of Claim lists under 4 headings — information about personal gifts which Mr Burrell received from members of the Royal Family, information concerning the Queen's interest in the birth of Mr Burrell's first son, details concerning a serious accident sustained by Mr Burrell in the US and the assistance given by the Queen in that respect, and information concerning his relationship with the Queen. According to the claimant, that information was given in confidence so that he could receive advice and assistance from Mr Clifford. It was not to be disclosed to third parties. It is common ground that Mr Clifford caused the letter to be faxed to Ms Rebekah Wade, then editor of the News of the World. That is the act complained of in these proceedings and it is said to have been a breach of confidence and/or an infringement of Mr Burrell's privacy rights, in respect of which he seeks damages, injunctive relief restraining further disclosure, delivery up and declaratory relief.
Mr Clifford admits sending the fax, but it is his pleaded case that he was approached so that he could broker the sale of Mr Burrell's story to a newspaper. It is admitted that the communications between Mr Burrell and Mr Clifford were confidential but it is also averred that the letter was written so that it could be used as a "pitch document" to enable negotiations about the sale of the story, so that it could be disclosed for that purpose. That is the defence to the confidentiality/privacy aspects of the claim, but the Defence also takes a limitation point and the point that the claim is an abuse of process as presenting no real prospect of recovering anything other than meaningless or minor remedies — the Jameel point.
The News of the World did not, apparently, report any story based on that fax. A copy of the fax found its way into the hands of at least one other journalist (Mr Clive Goodman, in whose documents it was found by the police much later) and it is said that it is likely that it will have been seen by other journalists; but it is not alleged that there was wider publication than that.
The claimant's Reply deals with the limitation point by relying on section 32 of the Limitation Act 1980.
The limitation point
Mr Burrell does not dispute that, in the absence of the application of section 32, his claim would be limitation-barred. However, he does plead reliance on section 32. The relevant part of his Reply reads:
"3. In regard to paragraph 1, the Claimant relies upon section 32 of the Limitation Act 1980. The relevant act was concealed from the Claimant and therefore the six-year limitation period did not begin to run until he discovered that the Defendant had used his private and confidential information in the manner complained of."
The pleaded case then goes on to aver that Mr Burrell knew nothing of the alleged breach of confidence by Mr Clifford in sending the fax until he received a copy of the fax from the Metropolitan Police Service on 28 th June 2012, or alternatively had a brief opportunity to read it when he visited New Scotland Yard a year previously to view a full lever-arch file of documents which had been obtained as a result of a criminal investigation into two particular individuals, on 22 nd June 2011. Mr Burrell's case is that he could not reasonably have known about the act until then, and the act had been concealed in the sense that it occurred in circumstances in which he would not have been likely to know about it for some time.
Section 32 of the Limitation Act 1980 , so far as relevant, reads:
"32. Postponement of limitation period in case of fraud, concealment or mistake.
1) Subject to subsections (3) and (4A) below, where in the case of any action for which a period of limitation is prescribed by this Act, either -…(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant…
the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it….
(2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty."
Mr Burrell's case on this section is simple. He says that the fax was sent without his knowledge or approval, and he was not told after the event that it had been sent. As appears above, his case is that he knew absolutely nothing about it until he was told about it by the police years later. In the circumstances the wrong, which was committed deliberately, was committed in circumstances in which it was unlikely to be discovered for some time. That is said to bring Mr Burrell within the provisions of section 32 which I have quoted above.
The case of the defendant on the point involves an assertion that the fax was provided to the News of the World with a view to publication of the information it contained, so that it cannot be said that the breach of duty was "unlikely to be discovered for some time". Miss Lorna Skinner, for Mr Clifford, submits that if, as Mr Burrell is said to contend, Mr Clifford sent the fax with a view to its contents being published then the fact that he had acted in breach of duty would have come to Mr Burrell's attention very shortly afterwards. In those circumstances it is said that Mr Burrell cannot bring himself within section 32(1)(b). The claim should therefore be struck out.
In my view this line of argument is unsustainable. Miss Skinner's argument relies on paragraph 12 of the Particulars of Claim which is said to contain some sort of averment that Mr Clifford sent the document to the News of the World for publication. The short answer to that is that paragraph 12 does not contain such an averment. It contains material from which it is said to be inferred that Mr Clifford discussed issues concerning Mr Burrell with Ms Wade and that he imparted information which had been given by Mr Burrell in confidence. It is alleged that Mr Clifford could gain influence by passing such information, and he was frequently in contact with tabloid editors. Nowhere is it actually alleged that Mr Clifford intended that there should be publication of the particular information in question. Accordingly, the argument breaks down at that stage.
However, even if Mr Clifford had had that intention, the argument would still fail, or at least it would not obviously be successful. What Mr Clifford did (on the claimant's case, which is what the defendant's point turns on) is pass on information covertly. The circumstances of the transmission were such that Mr Burrell would not know about it at the time, and would not know about it until someone told him that it had happened, or until something happened from which he could reasonably infer that it had happened. It was not apparent at the date of the wrong that there would be a publication, or when it would be. As it happened, there was no publication. Even if use of the information in a publication would have demonstrated its source (which does not necessarily follow), until that event Mr Burrell could not have known about the wrongful act. The period between the passing of the information and that unknown event seems (at least arguably, and in my present view almost inevitably) to be a period which is "for some time" for the purposes of subsection (2). Subsection (2), and thereby subsection (i), would thus be invoked.
For the defendant to be able to succeed in knocking out a limitation counter-point at this stage the position must be clear both as a matter of fact and as a matter of law. Neither of those is the case in the present matter, and in the circumstances this basis for striking out the claim fails.
The Jameel point
Miss Skinner's second point is that this claim can be seen to be one which is worth so little that it would be disproportionate for costs to be incurred in relation to it...
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Paul Burrell v Max Clifford
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