With no “TKO”, it’s all systems go for Harry and his fellow claimants

Associated Newspapers Limited (ANL), publishers of the British tabloid the Daily Mail has failed in its summary judgment application to dismiss privacy and unlawful evidence gathering claims, initiated against it by Prince Harry and others October 2022. The judge, Mr. Justice Nicklin, found ANL had administered no “‘knockout’ blow” to the claim. Accordingly, the parties are set to meet for a show down in a show trial.

The matter is noteworthy not least because the list of claimants reads somewhat like a Who’s Who. As noted by the Judge: “The Claimants are all notable public figures who probably need no introduction. Baroness Lawrence is the mother of Stephen Lawrence, who was murdered in a racist attack in London. She is a member of the House of Lords. Ms. Hurley is an actress and businesswoman. Sir Elton John is an internationally acclaimed recording artist and Mr. Furnish, his husband, a well-known film producer and director. Sir Simon Hughes is a former Liberal Democrat politician, who was Minister of State for Civil Justice and Civil Liberties between 2013-2015. Prince Harry, the Duke of Sussex is a member of the Royal Family. Finally, Ms. Frost Law is an actress, director, producer, businesswoman and fashion designer.”  Pitted against that assembled throng in the blue corner, are the red-tops in the red corner - the Daily Mail, and its sister publications, the Mail on Sunday and Mail Online. 

The fight concerns allegations similar to those in the “phone hacking” scandal which brought the News of the World to its knees in 2011. But while that now defunct newspaper may have thrown in the towel after 168 years in business, the ANL titles robustly deny the accusations and appear up for the fight. Asserting the claims to be “preposterous” they sought to gain the court’s agreement with an application to dismiss them summarily, without troubling the witnesses with giving evidence at trial.

Many of the allegations of illegal activity stem from activities said to have taken place years, even decades, ago. The publishers sought to deliver a blow to their foes' claim, arguing that not only were the accusations substantively wrong, they were procedurally out of time as they were not within the six-year limitation period provided for under section 2 Limitation Act 1980. The claimants hit back with a swipe under section 32 Limitation Act which provides (as relevant) that where “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.” The defendants sought to block that blow with what in effect might be seen as a rather unattractive argument - that if the conduct were illegal, which they denied, the claimants could “with reasonable diligence have discovered it”. 

The claimants reject that they know or could have discovered this conduct. Elizabeth Hurley, for example, said that she was not aware of any activities concerning her until she was tipped in late 2020, by a whistleblower “confessing to the terrible things he had done on the instruction of The Mail on Sunday newspaper”. While she had “first got involved in Hugh’s world of exploring hacking and dark crimes committed in the shadows of British journalism in 2015” she said (Hugh being her former boyfriend Hugh Grant, now the director of the press reform campaign group Hacked Off) that “was all about the Mirror and nothing at all to do with The Mail…”

Prince Harry,  says that he only discovered the alleged unlawful acts by ANL against him “after I started to pursue my claims against NGN and MGN in late 2019.”

While evidence on these points was not insubstantial, it didn’t need at this stage to be considered in depth, the judge reminding the parties in his judgment that “This is a summary judgment application. If Associated cannot deliver a ‘knockout’ blow, in any particular claim, with its best evidence, the position is not going to be improved by poring over the detail of all the rest of the material. If such an exercise is ultimately required, the proper place at which to carry out a detailed consideration of the totality of the evidence is at a trial.”  At this stage, the simple question was this; did the claimants have “a real prospect, at a trial, of overcoming a defence of limitation advanced by Associated”? Yes, they did. “In my judgment, each Claimant has a real prospect of demonstrating that Associated (or those for whom Associated is responsible) concealed from him/her the relevant facts upon which a worthwhile claim of Unlawful Information Gathering could have been advanced.” 

Which means that the without a knock-out blow, the parties are set to meet in the ring for a fully-fledged trial. But it wasn’t all celebration for the claimants. The defence won an important bout relating to certain documents provided confidentially and on compulsion by Sir Brian Leveson within the Leveson Inquiry into the Culture, Practices and Ethics of the British. Back in 2011 various documents had been provided to the Leveson Inquiry relevant to alleged evidence gathering by the newspapers, including “ledger cards, recording payments to private investigators or other external providers of information, for both The Daily Mail and The Mail on Sunday (“the Ledgers”).” However, while at first sight they might be relevant to the instant proceedings, restriction orders had been placed on those documents by Sir Brian. Some of the information had made its way – the orders notwithstanding - into an online article,  and thence into the claimants' pleadings in this matter.  But according to the judge, “the Court could not permit the Claimants to use information derived from the Ledgers in their claim for as long as the Ledgers remained subject to the Final Restriction Order.”

Not dissimilar from the pre-match bravado of the boxing match, both sides have issued statements indicating that they are up for the fight and will relish the opportunity of landing the final blow for their cause, at trial. Harry and his fellow claimants anticipate proving that “serious criminal activity and gross breaches of privacy” took place, while the publishers intend to establish that the “lurid claims” of “phone-hacking, landline-tapping, burglary and sticky-window microphones are simply preposterous”. 

In most litigation claimant and defendant inevitably give it all they’ve got in fighting their case. Harry is on a mission to give the British tabloid press a bloody nose for what he sees as decades of abuse, assaults on his wife, and the death of his mother. ANL meanwhile is fighting for its own reputation as a publishing house which did not engage in the gloves-off newsgathering techniques which famously brought the News of the World crashing to the canvas. 

It is inevitable that as the fight continues, both sides will take a reputational knock or two – meanwhile, bets are on as to who will be on the rope. 

In related news…

Amber Melville-Brown is frequently sought out to comment regarding media and reputation matters. Click on the title below to read the full article.

• 'What Prince Harry's Daily Mail Ruling Could Mean for Tabloid Press,' Newsweek - November 13, 2023, quoted