May 18, 2020

HRH the Duchess of Sussex issued proceedings against Associated Newspapers Ltd for misuse of private information, breach of her data protection rights and copyright infringement in relation to five articles published in the Mail on Sunday and MailOnline on 10 February 2019, which disclosed and reported on a letter sent by the Duchess to her father in August 2018 (“the Letter”). The claims are narrow, as they relate solely to the reproduction of the words of the Letter and the disclosure of the information it contained.

The Duchess submits that the private and confidential nature of the information in the Letter is obvious and self-evident. Further, she argues that publication served no public interest, but rather the sole purpose of satisfying a curiosity about the claimant’s private life that Associated has itself generated amongst its readership.

Associated, on the other hand, questions whether the contents of the Letter are private and confidential and, if so, whether publication is justified in the pursuit of freedom of expression. Associated admits that the information in the Letter is personal data, but denies that its processing of the data was unlawful or unfair. It also relies on freedom of expression rights and the exemption for journalism provided for by Article 85 of the GDPR.

Associated also disputes the copyright claim on the grounds that the letter was not an “original” literary work or, if it was, Associated did not reproduce a substantial part of it or, if it did, the Duchess’s rights are outweighed by the other rights and interests engaged.

In a pre-trial application, Associated sought to strike out some of the misuse of private information and breach of data protection rights allegations made by the Duchess in the Particulars of Claim. In the course of the hearing, the application was expanded to take in parts of the Reply as well.

Associated targeted three aspects of the claimant’s case: allegations that (i) Associated had acted dishonestly and in bad faith; (ii) Associated had deliberately dug up or “stirred up” conflict between the Duchess and her father; and (iii) the Duchess was distressed by Associated’s “obvious agenda of publishing intrusive or offensive stories about [her] intended to portray her in a false and damaging light”.

The grounds of attack on each aspect of the case were that the allegations were irrelevant in law, or inadequately particularised, or that it would be disproportionate to litigate the issues raised so that they should be excluded from the scope of the case on case management grounds.

Mr Justice Warby found that the allegations of dishonesty and malice, pleaded in support of the claim for misuse of private information, should be struck out because:

1. they were not essential ingredients of the tort and irrelevant to whether there was a valid claim. They were also irrelevant in rebuttal of any public interest defence. Such issues should be assessed objectively and the Duchess’s arguments that motive and state of mind were among the circumstances to be considered were contrary to Campbell v MGN Ltd [2002] EWCA Civ 1373 and unsupported by any other authority;
2. the allegations were inadequately pleaded. They were not compliant with the relevant Practice Direction, the Chancery Guide, and the relevant authorities; and

• it was right as a matter of discretion to strike the allegations out; they were not minor matters but serious allegations of wrongdoing that were partly implicit, unclear, lacking in particulars and likely to cause a significant increase in cost and complexity.

Allegations of dishonesty and malice were also pleaded in aggravation of damages. That was not objected to as a matter of principle, but the allegations were struck out because they were inadequately pleaded.

The Particulars of Claim also alleged that Associated was “one of the ‘tabloid’ newspapers that had been deliberately seeking to dig or stir up issues between the claimant and her father”. Warby J said that this was a separate matter from the allegations of dishonest and malice. He struck the allegations out because:

1. they were allegations of deliberate wrongdoing, not only in relation to the articles, which were the subject of the claim, but also to other, additional occasions, which were irrelevant to the claim; and
2. the allegations were impermissibly vague and lacking in particulars. There was no good reason why particulars should not be provided before Associated gave disclosure.

Similar allegations were set out in the Reply, in rebuttal of Associated’s “public interest” or freedom of expression defence. These too were attacked by Associated. Warby J struck them out for lack of particularity, as a “general broad-brush attack” without any of the necessary detail. Warby J did not preclude an application to re-plead a case on similar lines.

The Duchess also set out in the Particulars of Claim details of facts relied on in aggravation of damages. She said that she had been shocked and upset by what she called Associated’s “deliberate and blatant distortion and manipulation of the sentiment of” the Letter. In paragraph 19.8 she further stated that she was “also distressed to realise [that], this is wholly consistent with [Associated’s] obvious agenda of publishing intrusive or offensive stories about the Claimant intended to portray her in a false and damaging light.” She identified nine other articles as “examples” of this “agenda”.

Warby J struck out paragraph 19.8 because the pleading was inadequate. Much more detail would be required to enable the pleaded claims to be fully understood and dealt with, he said. Further, the costs and time that would be required to investigate and resolve the factual issues as currently pleaded bore no reasonable relationship of proportionality with the legitimate aim of recovering some additional compensation for emotional harm. The difficulties with this aspect of the case could not be solved by giving more details of the nine articles. According to the authorities, the court must control over-elaborate pleas in aggravation and avoid a case descending, unnecessarily, into “uncontrolled and wide-ranging investigations akin to public inquiries”.

Warby J noted that, as a matter of principle, other articles or other conduct can in principle be relied on as “rubbing salt in the wound”, but that was not said of the nine articles in question. The Duchess’s case was that the articles sued upon were a distressing instance of a pattern of misconduct that also included the nine other articles. Warby J’s provisional view was that the only necessary and legitimate averments at the Particulars of Claim stage were that the articles complained of caused distress because the claimant (reasonably) considered them intrusive and offensive, false and/or misleading. (HRH Duchess of Sussex v Associated Newspapers Ltd [2020] EWHC 1058 (Ch) (1 May 2020) — to read the judgment in full, click here).