The Duke of Sussex v News Group Newspapers Ltd
Jurisdiction | England & Wales |
Judge | Mr Justice Fancourt |
Judgment Date | 21 May 2024 |
Neutral Citation | [2024] EWHC 1208 (Ch) |
Court | Chancery Division |
Docket Number | Case No: BL-2019-001788 |
[2024] EWHC 1208 (Ch)
Mr Justice Fancourt
Case No: BL-2019-001788
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Rolls Building
Fetter Lane
London, EC4A 1NL
David Sherborne and Ben Hamer (instructed by Clintons Solicitors) for the Claimant
Anthony Hudson KC, Ben Silverstone and Harry Lambert (instructed by Clifford Chance LLP) for the Defendant
Hearing dates: 21, 22 March 2024
APPROVED JUDGMENT
(sent out 13 May 2024)
This judgment was handed down via hearing at 10.30 am on 21 May 2024 and by circulation to the parties or their representatives and by release to the National Archives.
Introduction
The Duke of Sussex seeks to amend his claim form and particulars of claim (“PoC”) in this long-running claim against the Defendant (“NGN”) that was issued in October 2019.
There are two sets of amendments to consider. The first set is consequential on an order that I made on 27 July 2023 (“the July 2023 Order”) granting NGN summary judgment on part of the Duke's claim and requiring him to amend his claim form and PoC “solely so as to give effect to [that decision]” (“the consequential amendments”). The second set are voluntary amendments that the Duke had (in part) indicated that he wished to make as long ago as March 2022, with a draft amended claim form and draft amended PoC first having been provided to NGN in October 2022 (“the voluntary amendments”). The application for permission to amend was issued on 8 September 2023 (“the Application”).
The July 2023 Order required two sequential sets of draft amendments because of the risk that the consequential amendments that the Duke was required to make (and the question of whether he had done so sufficiently) could become confused with the voluntary amendments, if they were not separately identified.
Some additional allegations have been added to the voluntary amendments since October 2022, with the most recent set of changes only being included in the new draft amended PoC provided to NGN shortly before the hearing in March 2024.
The trial of the claim, which was originally scheduled for November 2021 and then January 2024, has been delayed twice. The first occasion was because the Duke was unable to exchange witness statements in accordance with the timetable for the 2021 trial, and the second, in mid-2023, when his legal team indicated that his case could not be ready for a trial in 2024 (in part because of the intended Application). As there were at that time about 100 claimants awaiting a trial and NGN did not object, I agreed that the Duke's claim could await the second scheduled trial in January 2025.
The trial date is of significance because one of the issues raised by NGN on this application is whether the application for the voluntary amendments is now a “very late amendment” because it jeopardises the trial date, or only (as the Duke accepts) a “late” amendment. This is very far from the only objection taken by NGN, but it was one of the central objections. Regrettably, the Application was not one that could be resolved shortly: both sets of proposed amendments give rise to many contentious and complex issues, and the Application was vigorously debated before me over 2 days and even then required considerable further work on the papers after the hearing.
In relation to the consequential amendments, NGN strongly objects that the Duke has not complied with the July 2023 Order because he has not removed all the allegations of phone hacking and accessory unlawful information gathering on which I granted NGN summary judgment in the July 2023 Order. NGN raised its objections in good time in August 2023, in accordance with the timetable set by the July 2023 Order. The objections relate to both the terms of amendments actually made by the Duke in his draft and failure to remove or change other allegations in the original statement of case.
The disputes about the consequential amendments and the Application were not able to be heard before March 2024 because, from September 2023, the parties' legal teams (though not the Duke personally) were heavily engaged in preparing for a trial of 48 other claims due to start in January 2024.
In the event, all 48 claims were settled by the end of November 2023, and at a case management conference in December 2023 a date in February 2024 was fixed for a hearing of these matters. It then had to be re-scheduled to March 2024 because of delay in preparing and issuing an application by all remaining claimants in this phase of the MTVIL to re-re-amend the generic particulars of concealment and destruction (“GENPOC”), which was to be heard on an additional day at the same time as the Duke's Application.
I do not consider that the Duke or his legal team can be criticised for the delay from first raising the proposed Application in October 2022 until now. They were still awaiting a response from NGN to the draft amendments supplied in October 2022 when NGN issued an application in December 2022 to strike out or for summary judgment on the whole of the Duke's claim on limitation grounds, and said then for the first time that it refused consent to the voluntary amendments. Despite criticism by NGN for not having issued his application in December 2022, I consider that it was a reasonable decision to await the result of the strike out / summary judgment application before issuing an application to amend. The voluntary amendments did not directly affect the arguments based on s.32 Limitation Act 1980 with which the strike out / summary judgment application was solely concerned. Following my judgment on the strike out application in July 2023, the Duke did then issue his application promptly in accordance with the timetable in the July 2023 Order.
So far as delay is relied upon by NGN as a ground for refusing permission to amend, the relevant period of delay is therefore that between March 2022, when the Duke's solicitors indicated an intention to amend, and October 2022, when the draft amended PoC were first provided to NGN.
The Duke's particulars of claim
As it stood before I granted NGN summary judgment on the claim based on mobile voicemail interception and accessory unlawful information gathering (judgment at [2023] EWHC 1944 (Ch)), the Duke's claim was in respect of three different categories of misuse of his private information: accessing or attempting to access mobile telephone voicemail messages; obtaining private information by blagging; and obtaining private information by other unlawful use of private investigators (“PIs”). The claim was advanced in relation to the period 1996–2011 and by reference to three different centres of unlawful activity co-ordination: the News Department of the News of the World; the Features Department of the News of the World; and The Sun (in particular its Showbiz or “Bizarre” column, its Royal Correspondents, and its News Desk).
In support of those claims, the Duke pleaded reliance on 206 articles in Part G of the schedule to the PoC (“Part G” and “the Schedule” respectively). He also pleaded reliance on the content of the re-amended GENPOC and generic disclosure provided by NGN. He pleaded (as examples of private investigator work) 171 payment records or emails at para 6 PoC and an even larger number contained in confidential Part D of the Schedule.
Various documents were identified in para 7 PoC, the significant majority of which relate to voicemails and call data. Para 8 PoC pleads 817 items of call data on which the Duke relies, together with 4 private investigator invoices and 20 payment records.
It is alleged in paras 9 and 11 PoC that inferences are to be drawn that Mr Mulcaire and/or NGN's News Department at the News of the World targeted the Duke and accessed his voicemails, and obtained access to voicemail messages for and left by the Duke and his associates; that the Features Department of the News of the World targeted him and intercepted his voicemail messages on numerous occasions, using information (including phone numbers) obtained by external companies or individuals, as shown by PI invoices; and that the articles in Part G were derived from or based on or corroborated by information obtained through voicemail interception (para 13(e)).
In relation to The Sun, it is pleaded that the Duke was targeted by voicemail interception, blagging and unlawful PI activity, and two PI invoices and 12 payment records to PIs are specifically relied upon. Again, it is alleged (para 18 PoC) that the articles in Part G published by The Sun were derived from, based on or corroborated by information obtained from accessing the Duke's voicemails. Some of the articles are then summarised in para 20 PoC as “blatant examples” of voicemail interception and/or unlawful information gathering (“UIG”), almost all of which are concerned with suspicious calls, double taps and voicemail messages. Para 22 PoC pleads that the publication of the Part G articles is relied upon as being the product of misuse of private information and representing occasions of unlawful activity by NGN journalists or those acting for them.
The preponderance of all allegations in the unamended PoC is based on voicemail interception, though there are also significant allegations of PI UIG and a few occasions on which blagging is specifically alleged. All 205 articles in Part G are pleaded as being the product of voicemail interception, but elsewhere they are pleaded as being evidence of voicemail interception, blagging or unlawful PI activity. No articles are separately identified as being the product of blagging or PI activity but not voicemail interception.
The articles individually pleaded in para 20 PoC are, save in three cases,...
To continue reading
Request your trial