High Court strikes out parts of HRH The Duchess of Sussex’s claim against The Mail on Sunday

In HRH The Duchess of Sussex v Associated Newspapers Ltd [2020] EWHC 1058 (Ch), the High Court struck out parts of the Duchess’ claim against Associated Newspapers Limited (‘ANL’), the publisher of The Mail on Sunday and operator of the MailOnline website.

Background

The Duchess’ claim is for misuse of private information, breach of the General Data Protection Regulation (EU Regulation 2016/679) (‘the GDPR’), and copyright infringement.  She is suing in respect of five articles published on 10 February 2019; two in the print edition of The Mail on Sunday, and three that were published on the MailOnline website.  In essence, the claim is about the publication in The Mail on Sunday and on the MailOnline of a letter that the claimant wrote to her father in August 2018, several months after her marriage to Prince Harry.

The Duchess argues that ANL was wrong to publish the letter because she had a reasonable expectation of privacy in respect of it, and because it was her copyright material.  ANL argues that the contents of the letter were not private and, even if they were, that it was justified in publishing them in pursuit of freedom of expression.

 The application for strike out

ANL sought to strike out certain parts of the Duchess’ case: allegations (1) that it had acted dishonestly and in bad faith; (2) that it had deliberately dug up or stirred up conflict between the Duchess and her father; and (3) that the Duchess was distressed by ANL’s “obvious agenda of publishing intrusive or offensive stories about [her] intended to portray her in a false and damaging light”.  ANL argued that these allegations were irrelevant to the pleaded case and/or that it would be disproportionately costly to litigate all the issues raised, and so they should be struck out on case management grounds.  Warby J sided with ANL and struck out all three groups of allegations from the Duchess’ case.

Dishonesty and malice

The first group of allegations, that ANL acted dishonestly and in bad faith (i.e. with malice), was stuck out for two reasons.  First, dishonesty and malice are not essential elements of the tort of misuse of private information.  In other words, whether The Mail on Sunday and the MailOnline (and/or their editors and journalists) acted dishonestly and/or maliciously towards the Duchess, that is irrelevant to the determination of the claim.

There are questions when determining whether the tort of misuse of private information: first, did the claimant have a ‘reasonable excitation of privacy’ in respect of the circumstances or the information disclosed.  Secondly, if they did, upon a proportionality analysis of the claimant’s right to privacy and the defendant’s right to freedom of expression, is it necessary for freedom of expression to give way.  In respect of the first limb, ANL’s motive in publishing the letter cannot be relevant as to whether the Duchess had a reasonable expectation of privacy in respect of it.  In respect of the second, it is not necessary – a defendant newspaper can be liable for publishing private information even if it acts in good faith.

The allegations of dishonesty and malice were also pleaded in support of the Duchess’s argument that she ought to recover aggravated damages for the distress she has suffered.  There was no problem with this in principle, but the allegations were inadequately pleaded and lacking in particularity, and so they were struck out on case management grounds.  In a warning to practitioners, Warby J commented that such allegations of wrongdoing are likely to cause a significant increase in the cost and complexity of the litigation, and so the case for striking them out is all the stronger.  He left it open, however, for the Duchess to seek permission to re-plead this argument, providing the necessary particulars.

‘Stirring up’ conflict between the Duchess and her father

The second group of allegations, that ANL deliberately dug up or stirred up conflict between the claimant and her father, were also struck out for two reasons.  First, the allegations of deliberate wrongdoing (which, in this case, actually went beyond the articles complained of), were irrelevant to the issue of whether the Duchess had a reasonable expectation of privacy in respect of the letter.  Secondly, whilst ANL’s role in damaging the Duchess’ relationship with her father (if that were so found) could be relevant to whether it was in the public interest for ANL to publish the letter, the allegations were so lacking in particularity that ANL could not properly respond to them.  Again, Warby J left it open for the Duchess to re-plead this argument later on, providing the necessary detail.

The defendant’s agenda

One of the Duchess’s arguments in support of her claim for aggravated damages was that the five articles complained of in the claim were “wholly consistent with the Defendant’s obvious agenda of publishing intrusive or offensive stories about the Claimant intended to portray her in a false and damaging light.”  Nine other articles were identified as examples of this agenda.  However, Warby J found that this part of the Duchess’s case did not contain enough detail to enable ANL to understand or respond to it.  Worse, the time (and, inevitably, costs) that would be required to investigate and resolve the factual issues that it raised – which were very broad – would be wholly disproportionate to the, albeit, legitimate aim of recovering additional compensation for emotional harm.  If the Duchess had sought to argue that publication of the nine other articles was tortious in and of itself, then that sort of factual investigation would be legitimate but that was not the way the case was pleaded, and so this allegation was struck out.

What comes next

This was the first judgment handed down in this high profile case.  The claim is proceeding in the Chancery Division of the High Court, having been issued shortly before the new rules for media and communications claims which came into force on 1 October 2019 and which require all High Court media claims to be issued in the new specialist Media and Communications List in the Queen’s Bench Division (see our blog post here).  Nevertheless, this judgment was handed down by Mr Justice Warby, the Queen’s Bench judge who is head of the Media and Communications List.

ANL and other elements of the press sought to portray this judgment as a major victory.  In reality, it was merely the first battle in what may turn out to be a long and drawn out war.  The majority of the Duchess’s case remains intact.  Indeed, the first and second categories of allegations were struck out (in part) because they are actually irrelevant to the substance of her claim (i.e. they add nothing).

Assuming the matter does not settle, the parties will now proceed to the evidential stages of the litigation, involving the exchange of relevant documents and then witness statements.  Unfortunately for the Duchess, this will necessarily involve the disclosure of further information that she might otherwise wish to keep private.  This first judgment shone a light on the distress the Duchess claims she experienced as a consequence of publication of the articles complained of.  Each stage of the litigation will give ANL further opportunity to publish articles about the Duchess, which it will, no doubt, take full advantage of.

Media and communications lawyers will be watching the litigation very closely.  It represents a bold challenge to the accepted principle that personal correspondence will almost always be private.  If ANL succeeds in defending the Duchess’ claim then we may all need to think more carefully about what we write in our personal correspondence, whether it is in a handwritten letter like the one the Duchess wrote to her father, or by email, WhatsApp or other social media.

Click here to find out how Brett Wilson LLP privacy solicitors can assist you if your private information has been misused