The Duke of Sussex v News Group Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fancourt |
| Judgment Date | 27 July 2023 |
| Neutral Citation | [2023] EWHC 1944 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: BL-2019-001788 |
[2023] EWHC 1944 (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)
Royal Courts of Justice
Rolls Building
Fetter Lane
London, EC4A 1NL
Mr Anthony Hudson KC, Mr Ben Silverstone, Mr Harry Lambert and Ms Radha Bhatt (instructed by Clifford Chance LLP) for the Defendant
Mr David Sherborne and Mr Ben Hamer (instructed by Clintons) for the Claimant
Hearing dates: 25–27 April 2023, 5 July 2023
APPROVED JUDGMENT
This judgment was handed down via hearing at 10.00 am on 27 July 2023 by circulation to the parties or their representatives and by release to the National Archives.
Introduction
By application notice dated 7 December 2022, the Defendant, News Group Newspapers Limited (“NGN”), applied to strike out, or alternatively for summary judgment on, the whole of the claim issued by Prince Harry, the Duke of Sussex, on 27 September 2019 in the Mobile Telephone Voicemail Interception Litigation (“MTVIL”). I will refer to the Duke of Sussex in this judgment as “the Duke” and to NGN's application as “NGN's Application”.
Mr Anthony Hudson KC appeared with Mr Ben Silverstone, Mr Harry Lambert and Ms Radha Bhatt on behalf of NGN and Mr David Sherborne and Mr Ben Hamer appeared on behalf of the Duke. I heard NGN's Application initially over 3 days, together with an identical application issued by NGN in the MTVIL claim of Mr Hugh Grant. The applications were concerned with NGN's defence of limitation.
I handed down judgment in Mr Grant's claim on 26 May 2023. Resolution on the Duke's claim was delayed, owing to an application he made on day 3 of the hearing for permission to amend his Reply (“the Amendment Application”). Since the matter was adjourned, the Duke has issued a further application dated 15 May 2023 for permission to amend another statement of case, namely his Responses to NGN's Request for Further Information dated 22 November 2021 (“RRFI”). I will refer to that as “the RRFI Application”.
The Amendment Application and the RRFI Application were made because, in his witness statement dated 20 March 2023 opposing NGN's Application, the Duke described for the first time how, in about 2012, he was informed by either a lawyer acting on behalf of the Royal Family or a senior employee at Buckingham Palace of a “secret agreement” between the Palace and senior executives of NGN's parent company, which was to the effect that senior members of the Royal Family should not bring phone-hacking claims against NGN at that stage and should wait and issue them after the MTVIL was concluded, when NGN would apologise to the affected Royals and pay compensation.
The Duke now relies on this “secret agreement” to contend that NGN is estopped from relying on a defence of limitation. He contends that he relied on the secret agreement in 2012, and on negotiations being conducted afterwards between the two camps, by not bringing a phone-hacking claim against NGN when he otherwise would have done so. Prior to service of the Duke's witness statement in March 2023, his pleaded case had been that until about 2018 he was unaware that he had a phone-hacking claim to bring, and his case relied on NGN's deliberate concealment of relevant facts to delay time running against him, pursuant to s.32(1) Limitation Act 1980 (“s.32(1)”).
At the initial hearing of NGN's Application, Mr Sherborne on behalf of the Duke sought to rely on his evidence and a belatedly produced draft amended Reply to argue that NGN was (at least arguably) estopped from contending that the Duke's claim was time-barred, as an alternative to the existing pleaded case relying on s.32(1), and that accordingly NGN's Application had to be dismissed so that these matters could all be determined at a trial.
Although NGN's Application was to strike out the Duke's claim pursuant to rule 3.4 of the Civil Procedure Rules and for summary judgment in the alternative, Mr Hudson readily accepted that, in reality, this was an application for summary judgment. If that did not succeed, the strike out application would not.
It is common ground that the primary limitation period under s.2 of the 1980 Act expired before the claim was issued, but the Duke in his Reply had pleaded reliance on s.32(1)(b) of the Act to suspend the running of time against him until about 2018. It was only then, he said, that he realised that he had a claim to bring against NGN in relation to the conduct of employees of its newspapers, the News of the World and The Sun.
Although the Duke's witness statement explained the circumstances of the secret agreement, his statements of case did not plead any estoppel. Mr Hudson therefore did not address any case of estoppel based on the secret agreement in presenting NGN's Application, but he did refer to the evidence of the Duke and explained that it supported NGN's case that the Duke had no prospect of succeeding on s.32(1) at trial. This was because (he said) the evidence made it clear that the Duke had all the knowledge that he needed in or about 2012 to consider bringing his claim then, or at the latest by 27 September 2013, six years before the Duke's claim form was eventually issued (“the Applicable Date”).
It is self-evident that a factual case that one did not know before 2018 enough about deliberately concealed facts to be able to bring a worthwhile claim is inconsistent with a factual case that one would have issued a claim in 2012 were it not for an assurance that it was not necessary or appropriate to do so. A party is not permitted to plead alternative and inconsistent factual cases.
The difficulty facing the Duke at the hearing in April 2023 was that if the estoppel argument was to be relied on to defeat the summary judgment application, it needed to be pleaded; however, the court will not grant permission to amend to plead an inconsistent factual case. Without an amendment, the Duke's evidence appeared to undermine his pleaded case that relevant facts were concealed from him until 2018.
The Duke issued the Amendment Application at the end of the second day of the hearing. It was supported by short written evidence of the Duke's solicitor, Mr Chisholm Batten.
In the event, I decided that NGN could not reasonably be expected to respond to the Amendment Application without notice during the hearing, and I adjourned it for a further hearing, which was fixed for 5 July 2023. The parties concluded their submissions on the s.32(1) issue, as it stood, on the last day of the April hearing.
Having had time to reflect, the Duke then issued the RRFI Application on 15 May 2023. It seeks to remove any factual inconsistency between the pleaded s.32(1) case and the intended estoppel plea. The parties adduced further evidence and exchanged new, lengthy skeleton arguments addressing the Amendment Application and the RRFI Application.
The position now, put shortly, is that if I am persuaded to grant permission to amend the Reply there will be a triable issue on the estoppel case based on the secret agreement, which is not inconsistent with any s.32(1) factual case pleaded by the Duke, and NGN's Application will therefore fall to be dismissed. In those circumstances, there would be no benefit in determining the s.32(1) issue at this stage. Indeed, the facts relating to the Duke's state of knowledge prior to October 2013 and the facts relating to the secret agreement overlap and it would be inappropriate to decide either issue without hearing the evidence in full at a trial. If, on the other hand, permission to amend the Reply is refused, the remaining issue for determination is the s.32(1) issue, on which I heard all the argument in April.
The Statements of Case
The starting point is the Duke's currently pleaded claim, which, as indorsed on the claim form, is for
“Damages (including aggravated damages) for misuse of private information in relation to the obtaining or use of information relating to the Claimant or his private or professional life through accessing or attempting to access voicemail messages left for him or by him and/or blagging or the use of private investigators, and the publication of articles about the Claimant arising out of or containing or being corroborated by the same.”
The claim is based solely on the tort of misuse of private information but encompasses phone hacking, blagging of private information and using private investigators (“PIs”) to obtain private information.
The Duke filed his “claimant-specific” Particulars of Claim dated 30 October 2020 (over a year after issue of the claim form) following initial disclosure. This is standard procedure in the MTVIL. These Particulars were expressed to rely on the Re-Amended Generic Particulars of Claim for Pinetree and Weeting Claimants and the Amended Generic Particulars of Concealment and Destruction.
These generic statements of case give very detailed particulars of a claim relied upon now by all claimants within the MTVIL, alleging the considerable extent of phone hacking and unlawful information gathering (“UIG”) by NGN, the extent of knowledge and encouragement of what was being done by senior executives and editors, and the lengths to which editors and executives went in an endeavour to conceal UIG and destroy evidence of it.
The Duke's claimant-specific Particulars of Claim advance his case that his mobile phone (and those of his associates) were hacked during the period 1996- 2011 (“the Relevant Period”) and that during the Relevant Period NGN carried out other kinds of UIG targeted at him.
For the reasons given in my judgment, Grant v News Group Newspapers Ltd [2023] EWHC 1273 (Ch) (“ Grant”), the legal test to be applied as regards...
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