HRH The Duke of Sussex v News Group Newspapers Limited

On 21 May 2024, I handed down a judgment (“the May 2024 Judgment”) which decided that the Claimant (“the Duke”) had failed to draft amended Particulars of Claim that complied with my Order of 27 July 2023 (“the July 2023 Order”), granted permission in principle for certain proposed voluntary amendments to the Particulars of Claim and refused permission for others, and refused permission for yet further amendments unless appropriate particulars were provided.

I gave directions on 21 May 2024 (“the May 2024 Order”) requiring the Duke to serve a further version of his draft amended Particulars of Claim that gave proper effect to the 27 July 2023 Order and pleaded his permitted and conditionally permitted voluntary amendments in accordance with the terms of the May 2024 Judgment, distinguishing between each category of amendments.

Anticipating that any draft provided by the Duke would not be agreed by the Defendant (“NGN”), I directed that NGN should respond in the form of a schedule, identifying which parts of the draft were objected to, and that I should resolve any dispute on the papers.

By the time of a case management conference in the MTVIL managed litigation in July 2024, NGN had responded as directed to the Duke’s further draft, but it was clear that a longer process of re-drafting and identification of disputed content would be needed. The Duke agreed to submit a further revised draft, taking account of some of NGN’s objections. I directed that NGN should serve a further schedule of objections by 7 August 2024 and that the Duke should respond in the schedule by 21 August 2024. There would then be written submissions exchanged by 4 September 2024, so that I could determine the remaining disputes expeditiously on the papers thereafter. The directions were complied with, save that the parties agreed to extend the deadline for filing their submissions.

As a result of holidays of court staff, my clerk and myself during the court vacation, the materials were not available to me until Monday 23 September 2024.

This work – to finalise the Duke’s pleaded case – is being done in the context of a 6-8 weeks trial due to start in January 2025, and there are existing directions for witness statements of fact to be exchanged starting in late October 2024.

It is clearly imperative that the content of the pleaded case is resolved as soon as possible. I had, perhaps unduly optimistically, expected that the residual disputed material would be limited, in view of the length and detail of my May 2024 Judgment explaining exactly what was permitted and what was required. But, in the event, I am faced with a table of disputes running to 44 pages, with 49 separate items or groups of items disputed (only a handful of which were eventually agreed) (“the Table”), and 34 pages of dense submissions by NGN in support of their objections, which amplify the content of the Table.

NGN submits that I should now rule that the consequential amendments do not give effect to the July 2023 Order and that the voluntary amendments for which permission is sought should be refused.

I have previously indicated to the parties that this individual claim (not the MTVIL as a whole), although it raises important issues, is starting to absorb more than an appropriate share of the court’s resources, contrary to the requirement in the overriding objective to deal with cases justly and at proportionate cost. It is now doing so. The claim at times resembles more an entrenched front in a campaign between two obdurate but well-resourced armies than a claim for misuse of private information. It is unsatisfactory to say the least that the court should be faced a second time with having to resolve such a large extent of disputed material on amendments to a statement of case.

I have also previously indicated that this claim will not be adjourned and will be either tried in January 2025 or settled, since it was issued as far back as September 2019 and has been stood out of eligibility for 2 previous listed trial dates. That remains the position.

In light of this and the urgency of the matter, having regard to the imminence of final trial preparations, I shall make this judgment as short as reasonably possible, so that matters can progress without delay. I have read carefully the contents of the Table and the written submissions of both sides. The fact that I do not refer to each point raised and every argument deployed does not mean that I have not considered them in reaching my conclusions.

It is important also to bear in mind that there are two different types of proposed amendment in the final draft amended Particulars of Claim (“the Draft”) that are unresolved: (1) consequential amendments, to give effect to my 2023 Order that (in effect) the remaining causes of action for misuse of private information (“MOPI”) must be disentangled from the previous allegations of mobile voicemail interception, so that it is clear what causes of action remain; and (2) the voluntary amendments, to add permitted new claims where, in my May 2024 Judgment, I concluded that they were permitted in principle but inadequately pleaded. This second category comprised “landline claims”, as defined in the May 2024 Judgment to include landline voicemail interception (“LVMI”), live phone call interception, bugging, analogue scanning and tracking, and breach of confidence claims. There were also some minor points where clarification of the pleaded case was required.

These are the only matters that should be live at this stage: all other proposed amendments were either permitted or refused by my May 2024 Judgment and Order. The revised draft directed by the May 2024 Order was therefore not a further opportunity for the Duke to plead discrete new causes of action that had not been pleaded in the original draft, nor was the Table an opportunity for NGN to raise new objections to the content of the previous draft. Regrettably, it appears to me that, to varying extents, both parties have crossed the line in these respects beyond what was indicated in the May 2024 Judgment as permissible. Thus, for example, NGN’s renewed complaint about various parts of the draft being “otiose” or “vague” or “confusing” will not be entertained, save where the criticism relates to the newly drafted material itself. In this regard, the Duke makes quite clear, in his draft and in the Table and his submissions, that his causes of action are limited to those specified in paras 22A-I of the Draft and Parts G and H of its Schedule, so it is pointless for NGN to complain that it is unclear whether other material in the Draft is relied on as a cause of action.

On a different point, it is somewhat obtuse and pointless for NGN to complain that the Duke has failed to give full particulars of the nature of the MOPI complained of, or the acts that amounted to a breach of a duty of confidence (“BOC”), who exactly committed the wrong in question and when, where the facts relating to the Duke’s case have allegedly been concealed by NGN and are not within his knowledge. As regards Parts G and H of the Schedule to the Draft, the Duke pleads that these contain the only facts, by way of particulars, that he is able to plead and (subject to evidence emerging ex improviso at trial) that he will adduce at trial, and that his case as to the alleged MOPI or BOC is an inferential one, based on the only known facts. In the event that the Duke seeks to lead further facts relevant to any cause of action at trial that have not been pleaded, NGN will be entitled to object. NGN may have a point in some individual causes of action alleged, however, where it is said that the Duke has not spelt out what information is alleged to be private or confidential to him, especially where the pleaded facts relate to PI activity directed at one of his associates.

With that introduction, I deal briefly below with each of the separate heads of objection (called “Rows” in the Table).

Row 16 – paragraph 13 is not relied on as a cause of action, and there is in any event nothing materially new that is pleaded here by way of amendment. The amendments are mostly deletions in accordance with the July 2023 Order and the May 2024 Judgment. Objection dismissed.

Row 30 – paragraph 22D is apparently an attempt to rely on causes of action that cannot be identified, as the Duke seeks to bring a claim in relation to other causes of action of which he can provide no particulars whatsoever. This is misconceived. A claim cannot be brought in respect of unidentifiable causes of action: there must be some factual foundation for an individual allegation of MOPI. Whether damages awarded for repeated misuse (if established at trial) can extend beyond the specific causes of action proved is a separate question. The amendment except for the first sentence of paragraph 22D is therefore disallowed.

Row 32 – paragraph 22G introduces the BOC claims in Part G. As to the criticism that in relation to each claim it is not identified (as required) whether the information is alleged to be self-evidently confidential or only confidential on the basis of particular facts, it is true that the Duke has not addressed this and so it must be taken that, absent a plea of particular facts relied upon to establish confidentiality, his case at trial is that the information identified is self-evidently confidential. The Duke will not be permitted at trial to rely on unpleaded facts to establish the confidential nature of information relied on. The complaint that paragraph 22G.1 is internally inconsistent (as opposed to clumsily drafted) is not understood, as it is arguable both that there was a breach regardless of the character of the information and that the information was confidential.

Row 38 – this objection relates to the adequacy of Part G as the only place where particulars of individual causes of action are provided. NGN’s main objection is that in each case the column headed “Unlawful act alleged” is completed on an unspecific and generalised basis, without specifying exactly what unlawful act is alleged. This is in my view misconceived. The plea is that the Duke infers that the information in question was wrongly obtained by one means or another. The Duke is not in a position to plead how NGN obtained it. The plea of inference makes clear that the Duke’s case is not based on facts other than those that are identified, from which he will seek to draw inferential conclusions. If a different factual case from that pleaded is led by the Duke at trial, as opposed to facts emerging ex improviso, NGN will be able to say that the case advanced on the facts is not pleaded as a cause of action.

Row 39 – the objection to rows 14 and 15 of Part G relates to the description of the confidential information, namely “Confidential information regarding the Claimant’s activities on a trip and/or the article marks an occasion around which there was unlawful information gathering” (emphasis added). The plea is in the context of a BOC claim, as the articles date from 1998, and so the cause of action is breach of confidence, not MOPI. It is unclear to me what the alternative plea can mean, without identifying other confidential information apart from what was published. The inference of unlawful act relating to both articles, in column G of Part G, refers to the nature of the confidential information in column F as being the basis of the inference. I therefore agree with NGN that this plea does not make sense. If the Duke intends to plead other confidential information that was not in the publication, he needs to do so expressly. The objection is upheld and permission to include the words “and/or the article marks an occasion around which there was unlawful information gathering” is refused.

Row 40 – this objection relates to a discrete point in that unlawful act or acts broadly pleaded in column G for rows 24-25 include the words “and/or computer (email) hacking (as defined in paragraph 3(c) of the PI Annexe to the RRAGPCD)”. This appears to be a new sub-species of claim that has not previously been introduced into the proposed voluntary amendments. The reason why it is pleaded here is that the articles were written by Mr Goodman, who worked closely with Mr Mulcaire, who has previously been admitted by NGN in one case to have used computer hacking. On that revised basis, it can be seen that the allegation is in relation to PI activity by Mr Mulcaire and is not a new claim against NGN’s journalists that would be subject to s.35 Limitation Act restrictions, for the reasons given in the May 2024 Judgment. On that basis, NGN’s objections seem to me to fall away and the plea is a legitimate and specific allegation for which there is some evidential foundation. Objection dismissed.

Row 41 – this objection raises a similar issue to Row 40, above. What is alleged as one possible unlawful act in this case is “unlawful payments to employees of private companies (as defined in paragraph 1(h) of the PI Annexe to the RRAGPCD)”. If the allegation is that PIs made the unlawful payments to employees, it seems to me to be permissible for the same reasons given in relation to row 40. However, it is not clear that this is the case, as the Duke argues that an employee providing information in return for payment would be in the same position as a PI. I do not accept that such an employee is to be equated with a PI, as defined in the Draft by reference to the PI Annexe. Accordingly, if the case intended to be advanced is that NGN’s journalists made unlawful payments to employees of private companies, that is arguably a new claim, newly raised, and is too late to be raised now, even if it can be said to arise out of the same or substantially the same facts as other allegations (which is doubtful). Accordingly, unless the Duke is able properly to plead that this is an allegation that one or more of the PIs identified as being relevant to his claim made unlawful payments to employees, and includes all facts that he intends to advance at trial in that regard, permission to make this amendment is refused to the extent of the words quoted above, but not otherwise.

Row 42 – the objection here is to repeated use in different variant forms of the formulation “and/or supplied the product of their [PI] activities to [NGN]”, on the basis that no case for mere supply to NGN being unlawful or otherwise a MOPI is pleaded. The Duke accepts in his response in the Table that a further amended version is appropriate, adding the words “(who knew that it has been illegally obtained and/or used the material provided for unlawful purposes)”. To this, NGN contends that “and/or used the material provided for unlawful purposes” is objectionable for lack of particularity of the unlawful purposes. I agree with NGN that, if NGN did not know that the material it received (unrequested) had been obtained illegally, the basis on which it is suggested that it then used the material unlawfully needs to be particularised. It has not been, and so I disallow from the proposed revised amendment (which I otherwise permit) the words “and/or used the material provided for unlawful purposes” in relation to each row of Part G identified in the schedule.

The subsidiary point is that payment record A is dated 7 August 2000, which means that no claim for MOPI can exist. Paragraph 22C pleads that Part H relates to misuse of private information only. On that basis, as the Duke accepted in his written submissions, the claim in relation to record A cannot standand permission is refused for that amendment, but otherwise granted for Part H.

It follows that I grant permission for the amendments in the Draft except to the extent of the matters identified under rows 10, 30, 33, 39, 41, 42, 43, 44, 46, 47 and 48 above. Where, in relation to any of those rows, I indicate that permission would be granted on a particular basis but not as pleaded, the Duke must either remove the amendment from the Draft or vary the plea as indicated.

There are further references to “bugging” in a generalised form in para 4C(b) of the Draft and at row 51 of Part H, where the phrase “Bugging and/or other Unlawful Acts” appears. There being no particulars of these allegations, permission for them is refused. It follows from the above that I should also refuse permission for the Duke’s proposed amendments to the Claim Form to the extent of the words “and/or the use of listening and tracking devices”.

The parties disagreed about whether the terms of the July 2024 Order should include a requirement that the parties identify their cases as to the date on which they contend that any landline claims are deemed to have been issued (on the basis set out in Advanced Control Systems, Inc v Efacec Engenharia e Sistemas S.A. [2021] EWHC 914 (TCC)) (“the ACS Date”) (see at [189] of the May 2024 Judgment). The July 2024 Order does not include that requirement for the simple reason that it was not ordered at the time of the July 2024 hearing. It is however necessary for any dispute about the ACS Date to be resolved. The Duke contends that, subject to NGN pleading limitation to the landline claims, it would argue that permission to bring the claims should be subject to a deemed ACS Date of 7 September 2017, i.e. 6 years before the Duke’s application for permission for the voluntary amendments was made. NGN clarified that its position is that the date is the date on which the amended Particulars of Claim are actually served. Whether this difference is best resolved before or at trial I leave to the parties to consider. The consequence of deciding it at trial would be that evidence of the Duke’s actual and constructive knowledge of the matters alleged would have to be investigated at two different dates, but whether that is unduly burdensome, compared with the time and cost of resolving it ahead of trial, is unclear at this time.  In any event, the reality is that it is very unlikely that I will be able to receive submissions and determine this issue before the date set for exchange of witness statements.

There is only limited time for the final version of the Amended Particulars of Claim to be pleaded, served and responded to by way of Amended Defence. Both parties should continue to work on the statements of case without delaying until receipt of the hand down version of this judgment. The parties should include with their suggested corrections to the draft judgment a proposed timescale for these steps, as part of a draft order reflecting the content of the judgment. I will make an order on the date of formal hand down of this judgment.