Paul Burrell v Max Clifford

JurisdictionEngland & Wales
CourtChancery Division
JudgeRichard Spearman
Judgment Date19 February 2016
Neutral Citation[2016] EWHC 294 (Ch)
Docket NumberClaim No: HC-2014-000740

[2016] EWHC 294 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Richard Spearman Q.C.

(sitting as a Deputy Judge of the Chancery Division)

Claim No: HC-2014-000740

Between:
Paul Burrell
Claimant
and
Max Clifford
Defendant

William Bennett (instructed by Taylor Hampton) for the Claimant

Steven Barrett (instructed by Pitmans LLP) for the Defendant

Hearing dates: 25 and 26 January 2016

Richard Spearman Q.C.:

Introduction

1

This is the trial of a claim for breach of confidence and misuse of private information. The Claimant ("Mr Burrell") was employed by the Royal Family for 21 years, and was, among other things, the butler to the late Diana, Princess of Wales, until her death in a road traffic accident on 31 August 1997. In November 1997, Mr Burrell was awarded the Royal Victorian Medal for services to the Royal Family, and he has since written a number of books, made a number of television and media appearances, and run a florist. The Defendant ("Mr Clifford") was for many years a prominent and successful public relations consultant, operating through the medium of a company which was owned and controlled by him called Max Clifford Associates Limited ("MCA").

2

Mr Burrell was represented by William Bennett and Mr Clifford by Steven Barrett. They conducted the trial with efficiency and moderation. Their sensible written opening and closing submissions made it possible to limit speeches and oral argument to little more than one hour in total. I am grateful to both of them for their assistance.

Outline of the issues

3

At the heart of the case is a letter written by Mr Burrell which comprises six pages of manuscript, although the second page is missing and nobody who gave evidence before me claimed to remember the precise contents of that page ("the Letter"). It is common ground that the contents of the Letter can be placed in the following categories:

(i) Information concerning personal gifts from the Queen and the Duke of Edinburgh to Mr Burrell and his wife during the years for which Mr Burrell was employed by the Royal Family.

(ii) Information concerning the Queen's interest in the birth of Mr Burrell's first son.

(iii) Details concerning a serious accident suffered by Mr Burrell while in the USA with the Queen, his subsequent medical treatment, and the assistance given to him in that regard by the Queen.

(iv) Information concerning Mr Burrell's relationship with the Queen.

4

On a date which Mr Burrell originally put as in or around April or May 2001, but which by the time of the trial he accepted was in about April or May 2002, and following one or more meetings between the two of them, Mr Burrell sent the Letter to Mr Clifford.

5

On 2 November 2002, the Letter was sent, together with a covering message, by fax ("the Fax") to Rebekah Wade, the then editor of the News of the World. The accompanying message is signed "With love Anne Marie", and it seems likely from Mr Clifford's evidence that the individual who sent the Fax was his personal assistant.

6

That communication was made with a view to interesting the News of the World in publishing a story utilising the information contained in the Letter, although no such publication in fact took place. The Letter contained information concerning Mr Burrell's dealings with various members of the Royal Family which was not in the public domain at any of those times, and it was therefore both private and confidential.

7

None of these matters is in dispute. However, what is very much in dispute is whether Mr Clifford, who does not deny personal responsibility for the sending of the Fax, did anything wrong in communicating the contents of the Letter to the News of the World.

8

Accordingly, the central issue concerning liability in the case is whether or not that communication was authorised by Mr Burrell. Behind that issue are issues concerning the nature of the services which Mr Burrell approached Mr Clifford to provide, the purpose for which Mr Burrell sent the Letter to Mr Clifford, and whether any authority to disseminate the contents of the Letter which Mr Clifford may have had was still in existence on 2 November 2002 when the Fax was sent to Ms Wade. If liability is made out, there are issues as to the appropriate level of financial compensation. I am not concerned to decide non-pecuniary remedies, because the parties have agreed them.

9

Mr Clifford's pleaded case also raises an issue on limitation. There was no dispute between the parties that the applicable limitation period is one of six years, and that, in light of the fact that the Fax was sent on 2 November 2002 and the fact that the claim form was not issued until 16 October 2014, Mr Burrell's claim is, on the face of it, time barred. However, it is Mr Burrell's case that the Fax was sent without his knowledge or approval, and that he did not discover, and could not with reasonable diligence have discovered, that the Fax had been sent until either 22 June 2011 or 28 June 2012. Those were the dates on which, respectively, Mr Burrell was afforded an opportunity to read the Fax and was sent a copy of the Fax by the Metropolitan Police Service ("the MPS"). The background is that the MPS had obtained the Fax, and had first shown and later provided a copy of it to Mr Burrell, as part of the investigation into "phone-hacking". In these circumstances, Mr Burrell relies on the provisions of section 32 of the Limitation Act 1980 as postponing the start of the limitation period until one or other of those dates, each of which is less than six years before the claim form was issued.

10

I expressed the view at the start of the trial, and repeated it during closing submissions, that the argument based on limitation probably adds nothing to Mr Clifford's case. In a nutshell, the essential difference between the parties as to their meetings in early 2002 is as follows. On the one hand, Mr Burrell contends that he consulted Mr Clifford to seek his assistance in combatting adverse publicity to which he and his family were being subjected in light of certain allegations which formed the subject of criminal proceedings against him. On the other hand, Mr Clifford contends that Mr Burrell consulted him to negotiate the sale of Mr Burrell's story (although, because selling such a story might adversely affect Mr Burrell's defence, Mr Clifford says that exercise had to be put on hold until after the conclusion of those criminal proceedings). If Mr Clifford is right on that issue, and on the further issue as to whether any authority that he had to market the story to a newspaper was terminated before the Fax was sent, then he has no need of the limitation defence. Conversely, if Mr Burrell succeeds on either of those issues, then the sending of the Fax was unauthorised, and it seems highly improbable that Mr Burrell would have waited to complain until 24 October 2012 (the date of his letter of claim to Mr Clifford) if the sending of the Fax had not been concealed from him in 2002. Accordingly, if the sending truly was unauthorised, it is on the face of it hard to see a basis for finding that Mr Clifford did not deliberately conceal from Mr Burrell facts involved in Mr Clifford's breach of duty, and thus bring about a case of concealment for the purposes of section 32 of the Limitation Act 1980.

11

At an earlier stage, Mr Clifford attempted to have this claim struck out on two grounds. First, that it is time barred. Second, that it is an abuse of process — because, in essence, there is no real prospect that Mr Burrell will recover any relief or remedy which is not out of all proportion to the trouble to the parties, costs and court time which will be expended in trying it (see Jameel v Dow Jones & Co [2005] QB 846). That application came before Mann J in June 2015, and was dismissed for reasons set out in a detailed reserved judgment dated 14 July 2015: Burrell v Clifford [2015] EWHC 2001 (Ch).

12

One of the arguments which Mann J had to consider was whether Mr Burrell could only hope to recover damages which are nugatory. Mann J held at [29] that "There is a real possibility of some substantial (in the sense of being more than nominal or minimal) damages if [Mr Burrell] establishes the facts that he relies on". In Gulati v MGN Limited [2015] EWHC 1482 (Ch) ( "Gulati"), Mann J had earlier carried out an extensive review of earlier authorities, and made a careful analysis of damages in cases concerning misuse of private information, and his decision was later affirmed by the Court of Appeal: Representative Claimants v MGN Limited [2015] EWCA Civ 1291 ( "Gulati Appeal"). I was informed that the defendants in Gulati Appeal are seeking permission to appeal to the Supreme Court, but at present the analysis in that case is the most recent and comprehensive in this area, and must be taken to be correct. On the basis of the materials and arguments before him in the present case, Mann J said that he agreed with the thrust of a lot of the points made on behalf of Mr Clifford as to the likely level of Mr Burrell's damages. Mann J observed that it appeared unlikely in the extreme that the damages in the present case could be as much as £50,000; that it might be thought surprising if they were as much as £25,000; and that "whether they might be below that figure is more open to debate" (see [28]–[29]).

Criminal proceedings

13

Both Mr Burrell and Mr Clifford have had encounters with the criminal justice system.

14

On 18 January 2001, the police searched Mr Burrell's home and he was arrested. On 16 August 2001, Mr Burrell was charged with stealing 342 items of property from the Royal Household, following the death of the Princess of Wales. Mr Burrell was tried at the Old Bailey. The first trial began on 14 October 2002 and ended with the jury being discharged on 16...

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    • 24 July 2018
    ...of embarrassing the Claimant and bringing pressure to bear on him in the US litigation” and submits that there are parallels with Burrell v Clifford [2017] EMLR 2. 62 I deal below with whether the Claimant is really interested in vindicating his Article 8 rights, but I do not accept that, o......
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