Burrell v Clifford: Limitation and Triviality in Breach of Confidence and Breach of Privacy Claims

The former royal butler, Paul Burrell, is suing Max Clifford, the publicist (now serving a custodial sentence for various indecent assaults), for breaching his confidence and his privacy.  In In Burrell v Clifford [2015] EWHC 2001 (Ch) Mr Justice Mann heard an application by Clifford to strike out the claim on the basis that it was statue-barred and/or trivial.

Back in 2002, Burrell wrote a letter to Clifford, supposedly in confidence and for the purpose of obtaining Clifford’s advice, which set out details of his relationship with the Queen and the royal family.  Apparently unbeknownst to Burrell, Clifford faxed the letter to Rebekah Wade, then the editor of the News of the World.  However, the newspaper did not publish the letter or its contents.  In 2003, Burrell published a book ‘A Royal Duty’ which contained the same, or broadly similar, material.  The faxing of the letter was revealed to Burrell in 2011 or 2012, during the course of the Metropolitan Police investigations into phone hacking.  Burrell sued the publishers of the News of the World for allegedly hacking his phone, and later applied to join Clifford to those proceedings when he discovered the fax.  However, he then settled his claims against the paper before the joinder application could be determined.  Burrell subsequently issued the instant proceedings against Clifford.  He alleges that the sending of the fax was a breach of his confidence and/or an infringement of his right to privacy.  Clifford contends that the letter was intended as a ‘pitch document’ to enable Clifford to help Burrell sell his story, and its disclosure was permitted for that purpose, but he argued that the claim should in any event be struck out because: -

1. It was outside limitation; and/or
2. Its value was such that the costs involved in pursuing it would be disproportionate and therefore an abuse of process, pursuant to the principle in Jameel v Dow Jones & Co [2005] EWCA Civ 75 (‘Jameel’).

Limitation

Burrell conceded that, but for section 32 of the Limitation Act 1980, his claim would be outside limitation.  Section 32 allows for postponement of the limitation period where there has been fraud, concealment or mistake, until the same has been discovered, or could with reasonable diligence have been discovered.  Section 32(2) provides that ‘commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty’.  Burrell argued that he fell squarely within the terms of section 32(2).

Clifford's lawyers submitted that if he had sent the fax with a view to its contents being published, then his breach of duty would have come to Burrell’s attention shortly afterwards, and was therefore not ‘unlikely to be discovered for some time’.  His Lordship rejected this argument because it was not Burrell’s pleaded case that Clifford had sent the fax with a view to publication (he might have done so to gain influence with Ms Wade), but even if Clifford had sent the fax with that intention, (1) any publication might not have demonstrated the source of the information and (2) the period between the act and the publication could in event be considered to be ‘some time’ for the purposes of Section 32(2).  For Clifford to have succeed in defeating the section 32 argument at an interim stage, the position would have to have been ‘clear both as a matter of fact and as a matter of law’

Triviality

It was argued on behalf of Clifford that this was a ‘one-off wrongful act which did not result in a publication’ and that, moreover, Burrell could hardly be said to have suffered significant distress given that he himself put the information in the public domain shortly afterwards.  For these reasons, any damages arising were likely to be low, and any other relief would be pointless.  Added to that were a number of other factors, including that the claim was a stale one, and that it was being driven forward by virtue of the fact that Burrell was represented on a conditional fee agreement.  Costs budgets demonstrated that Burrell had incurred costs of over £28,000 and estimated that further costs of some £232,000 would be incurred (together with an uplift to reflect the fact that he was represented on a CFA) whilst Clifford’s costs were over £21,000 and expected to rise to over £125,000.  In short, the claim was worth so little that, as per Jameel, it would be an abuse of process to allow such costs and/or Court resources to be devoted to it.

His Lordship accepted that the fact of Burrell’s own publication was significant.  However, the question as to whether Burrell really cared about the privacy of the information, or, as he contends, whether circumstances had materially changed by the time he published his book, was one for investigation at trial.

The estimated costs of the action were indeed ‘alarming’ and ‘were it not for the existence of a CFA, it is much less likely that this claim would be brought through solicitors’.  However, it would be ‘wrong to infer that the financial benefit to solicitors improperly motivates the decision-making process’ and without evidence of an improper motivation, the mere fact of the CFA could not render the proceedings an abuse.

The real issue was whether the likely level of damages brought the case within the ambit of Jameel.  His Lordship agreed with much of what was said as to distress, envisaging that the only recoverable distress might be for Burrell’s discovering of his betrayal.  However, the wrong alleged was a serious one and was not, in and of itself, likely to result in merely nominal damages.  Damages were unlikely to be large, but there was nevertheless ‘a real possibility of some substantial (in the sense of being more than nominal or minimal) damages if the Claimant establishes the facts that he relies on’.   The case was therefore distinguishable from Jameel.  In the absence of any alternative method of redress (see Sullivan v Bristol Film Studios Ltd [2012] EMLR 27), the low level of damages was ‘not a sufficient reason to say that a claim is an abuse of process’.           

Proportionality

In a parting shot, His Lordship reminded the parties that costs budgeting was a means by which ‘to achieve a reduction in  the disproportionality of the costs’ and that the Defendant might wish to ‘protect himself by a well-judged Part 36 offer’