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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> HRH The Duchess of Sussex v Associated Newspapers Ltd (Rev 1)  EWHC 1058 (Ch) (01 May 2020)
Cite as:  EWHC 1058 (Ch),  EMLR 21
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BUSINESS AND PROPERTY COURTS
INTELLECTUAL PROPERTY LIST
B e f o r e :
| HRH The Duchess of Sussex
|- and -
|Associated Newspapers Limited
Antony White QC and Alexandra Marzec (instructed by Reynolds Porter Chamberlain LLP) for the Defendant
Hearing date: 24 April 2020
Crown Copyright ©
Covid-19 Protocol: This judgment was handed down by the judge remotely by circulation to the parties' representatives by email and release to Bailii on the date shown.
Mr Justice Warby:
The Mail on Sunday
"Revealed: The letter showing true tragedy of Meghan's rift with a father she says has 'broken her heart into a million pieces'"
"Meghan: Stop painful attacks on Harry; Her dad: I like him..... I'll always love you"
"Revealed: The Handwritten letter showing true tragedy of Meghan's rift with a father she says has 'broken her heart into a million pieces'"
"Meghan Markle urged her father to
stop 'painful' attacks on 'patient, kind and understanding' Prince Harry in five-page letter - but anguished dad says 'I like him.... and I'll always love you";
"Secrets of Meghan's letter revealed: note to her father saying her heart has been 'broken into a million pieces' reveals she is a 'narcissistic showman whose self-control is wavering"
"In August 2018, the claimant wrote a private and confidential letter to her father, Thomas Markle, which detailed her intimate thoughts and feelings about her father's health and her relationship with him at that time. The claimant sent the Letter to her father on or around 27 August 2018."
(1) The defendant disputes the contention that the contents of the Letter were private and confidential, and denies that the claimant had a reasonable expectation that it was or would remain private. Alternatively, publication was justified in pursuit of the protection of the rights to freedom of expression of the defendant, its readers, and Mr Markle.
(2) Although the information in the Letter was personal data, the defendant's processing of it was not unlawful nor was it unfair. Reliance is placed on the Convention and Charter rights already mentioned, and on a contention that the claimant impliedly consented to the disclosure. Alternatively, the defendant relies on the exemption for processing for the special purpose of journalism provided for by Article 85 of the GDPR. Continued processing was and is legitimate.
(3) Although it is admitted that the claimant wrote the Letter, it is denied that the Letter is an original literary work. If, contrary to the defendant's case, copyright subsists in the Letter "the extent to which the Letter is the claimant's own intellectual creation is very limited"; the defendant did not reproduce a substantial part of that aspect of the Letter; or, if it did, the claimant's rights are outweighed by the other rights and interests engaged.
5.92 Confidentiality The court has protected the confidentiality of private correspondence since at least the late eighteenth century.271 It is clearly established that, as a starting point, the contents of private letters are to be regarded as subject to a duty of confidentiality owed by the recipient to the writer.272 …
5.93 Privacy Correspondence is explicitly protected by Article 8. In Maccaba v Lichtenstein, Gray J accepted that as a starting point 'correspondence between A and B on private matters such as their feelings for each other would be a prime candidate for protection'.275 In Copland v UK, the ECtHR considered that emails (including personal email use at work) were included within private life for the purpose of Article 8.276 Similarly, in Imerman v Tchenguiz, the Court of Appeal held that emails concerned with an individual's private life, including his personal financial and business affairs, were within the scope of Article 8.277
271 Thompson v Stanhope (1774) Amb 737, 27 ER 476.
272 Philip v Pennell  2 Ch 577, Ch; Haig v Aitken  Ch 110.
275 Maccaba v Lichtenstein  EWHC 1579 (QB),  EMLR 6 . Also McKennitt …[v Ash  EWCA Civ 1714  QB 73] .
276 Copland v UK 45 EHRR 37
277 Imerman …[v Tchenguiz  EWCA Civ 908  Fam 116] –."
"It has, however, been suggested that correspondence is not categorically entitled to protection nor its contents 'inherently private'.279 The nature of the information contained in the correspondence will accordingly be relevant.280
279 Abbey … [v Gilligan  EWHC 3217 (QB)  EMLR 12] –.
280 See N A Moreham, 'Beyond Information: Physical Privacy in English Law' (2014)] 73 CLJ 350, 372."
"As a general principle, a recipient of a letter is not obliged to keep its existence or contents private, unless there are special circumstances, such as a mutual understanding between sender and recipient that the contents of a letter should be kept private. The recipient of a letter is entitled to tell his or her own story about matters which may be referred to in the letter, including disclosing the state of his or her family relationships and interactions."
Here, it is alleged, there were no special circumstances, nor was there any such mutual understanding; the claimant knew it was possible or even likely that her father would disclose the contents of the Letter, including for publication in the media; all the more so because (it is averred) such disclosure and publication were lawful in the US.
(1) the Letter "was written and sent with a view to it being read by third parties and/or disclosed to the public, alternatively knowing that this was very likely";
(2) the claimant herself "had knowingly caused or permitted information about her personal relationship with her father, including the existence of the Letter and a description of its contents to enter the public domain"; and
(3) the Letter "does not appear to contain the Claimant's deepest and most private thoughts but to be an admonishment by the Claimant of her father for failing to behave as she would have wished."
"7. It contends that the information in the Hong Kong journal was not confidential and denies that the claimant had any reasonable expectation that it would be kept from the public. It contends that the information in the journal was not intimate personal information but information relating to the claimant's public life and to a zone of his life which he had previously put in the public domain. It claims that, as a result, much of the information was already in the public domain and that other elements of it were of the same or substantially similar character as information that the claimant had made public. It alleges that in any event the information concerned the claimant's political opinions which the electorate had a right to know as being within the ambit of the Freedom of Information Act 2000, alternatively because it relates to the claimant's political behaviour whereby, departing from established constitutional conventions affecting the heir to the throne, the claimant has intervened in and lobbied on political issues. Alternatively, and for the same reasons, there was a powerful public interest in the disclosure to the public of the information which outweighed any right of confidence the claimant might otherwise have.
8. The defendant further contends that the use of extracts from the Hong Kong journal did not infringe copyright as the use was not of a substantial part and in any event amounted to fair dealing for the purpose of reporting current events and, or alternatively, for the purpose of criticism and review, alternatively publication of it was in the public interest."
Blackburne J granted the claimant's application, concluding that there was no real prospect of the defendant successfully defending the claim. An appeal against that conclusion was dismissed by the Court of Appeal which concluded (so far as the privacy claim was concerned):-
"74. … the judge was correct to hold that Prince Charles had an unanswerable claim for breach of privacy. When the breach of a confidential relationship is added to the balance, his case is overwhelming."
"The publication of the detailed contents of the Letter is an infringement of her Article 8 "right to respect for her private life, family, home and correspondence" (emphasis added), as well as an infringement of the copyright which she holds in the Letter and her data protection rights as its data subject. The fact that the Letter contained her most personal thoughts (as the Defendant itself reported1) only serves to strengthen this. No consent was sought or obtained by the Defendant before its contents were revealed to millions of its readers. There was no public interest served by the publication, which was neither presented as nor capable of contributing to a debate in democratic society relating to matters of legitimate public interest. Rather, it was disclosed with the sole and entirely gratuitous purpose of satisfying the curiosity of the Defendant's readership about the Claimant's private life of the Claimant, a curiosity deliberately generated by the Defendant: see paragraphs 9(6) and 9(7) of the Particulars of Claim."
"misconceived … attempt to remove factual elements of the claim (… which the court will need to take into account in its multi-factorial assessment at trial) which go to the heart of the claimant's complaint about the disclosure of her private information."
The factual elements referred to are also said to go to the heart of:
"…what is falsely claimed by the Defendant to have been its 'public interest' basis justifying this disclosure (as well as her distress at the fact that the Articles complained of form part of a pattern of intrusive and offensive coverage by the Defendant)."
"Misuse of the Claimant's Private Information
8. The contents of the Letter are self-evidently private and confidential and/or fall within the scope of the Claimant's private and family life, home and correspondence under Article 8 of the European Convention on Human Rights; alternatively, the Claimant had a reasonable expectation that the contents of the Letter were private and would remain so. In further support of this contention, the Claimant will rely upon the following facts and matters:
(1) The Letter was obviously private correspondence written by the Claimant to her father.
(2) Further, it contained the Claimant's deepest and most private thoughts and feelings about her relationship with her father and were detailed by her at a time of great personal anguish and distress.
(3) The Claimant intended the detailed contents of the Letter to be private, and certainly did not expect them to be published to the world at large by a national newspaper, and without any warning.
9. The publication of the contents of the Letter was wrongful and constituted an unjustified infringement of the Claimant's right to privacy and a misuse of her private information. The Claimant will rely on the following matters in support of this contention:
(1) The facts and matters set out in paragraphs 8(1) to 8(3) above.
(2) The Defendant's actions were a very serious interference with the Claimant's right to respect for her private and family life. The publication of her private correspondence is manifestly a gross intrusion and invasion of privacy.
(3) Although the Claimant is well-known to the public, the details of her feelings about her relationship with her father are not a matter of legitimate public interest, nor do they relate to her public profile or work.
(4) The Letter was published by the Defendant as a "world exclusive", in the most sensational and inflammatory terms possible, and given huge prominence, including on the front page of the Mail on Sunday and the home page of MailOnline. The Articles included numerous photographs or mock-ups of the Letter itself.
(5) The Claimant had not courted publicity in relation to the detail of her relationship with her father.
(6) In publishing the Information, the Defendant was disclosing private and highly sensitive information about the private life of the Claimant. By contrast, the publication of this material was neither presented as, nor capable of, contributing to a debate in a democratic society relating to matters of legitimate public interest.
(7) Rather, it was disclosed with the sole and entirely gratuitous purpose of satisfying the curiosity of the newspaper's readership regarding the private life of the Claimant, a curiosity deliberately generated by the Defendant.
(8) In further support of the contention that there was simply no public interest or legitimate reason to publish the Letter, the Claimant will refer to the fact that the Defendant chose to deliberately omit or supress parts of the Letter in a highly misleading and dishonest manner, including even cutting out words in the middle of a sentence or whole sentences out of a paragraph.
(9) Pending full disclosure of the Defendant's process of obtaining and preparing the Letter for publication, the Claimant will contend that it deliberately manipulated the contents in this way not because these parts which it chose to omit or suppress were more private or sensitive (as they plainly were not) but because these parts of the Letter would have undermined the Defendant's intended negative characterisation of the Claimant, demonstrated the falsity of the account given in the Articles about her contact with her father and her concern for his welfare and/or been generally unfavourable to the Defendant as one of the 'tabloid' newspapers which had been deliberately seeking to dig or stir up issues between her and her father (emphasis added).
(10) Despite these deliberate omissions, the Defendant sought to deceive the public by stating that they were disclosing the "full content" of the "five-page letter", in both the sub-heading and the body of the Articles defined at paragraphs 4(1) and 4(3) above. As explained in sub-paragraphs (8) and (9) above, and in paragraphs 19(4) and 19(5) below, this was completely untrue, and highly misleading, as the Defendant knew full well, since large sections of the Letter were deliberately omitted or suppressed by the Defendant, and the meaning thereby intentionally distorted or manipulated.
(11) Further, the Defendant published the contents of the Letter for commercial profit, without seeking the Claimant's consent and/or in the belief that the Claimant would not have agreed to it being published, if permission had been properly sought in advance which it was not. The Court will be invited to infer that the Defendant took this deliberate decision not to warn the Claimant in advance because it knew that she would object to the publication of the Letter and/or attempt to prevent the same.
(12) The Defendant also published an article … which sought through so-called 'expert handwriting' analyses to further detail the Claimant's private thoughts and feelings about her father. The "analysis" was used to make derogatory allegations about the Claimant's character in order to lend support to the Defendant's pre-conceived narrative for the Articles and the attack upon the Claimant. For example, the Defendant labelled the Claimant as a "showman and a narcissist" based solely on her handwriting style. Such actions evidence the Defendant's clear malicious intent in publishing the letter.
19. By reason of the matters set out above, the Claimant has been caused considerable distress, damage, humiliation and embarrassment. The Claimant will rely in support of her claim for general and/or aggravated damages, further or alternatively compensation pursuant to Article 82 of the GDPR and section 168 of the DPA, upon the following facts and matters:
19.1. The Defendant's actions were flagrantly unlawful and constituted a gross invasion of the Claimant's privacy.
19.2. The Claimant was shocked and deeply upset by the publication of the detailed contents of her private letter to her father. The fact that the Defendant deliberate chose to publish them in such a sensational and inflammatory manner, and without any warning or attempt to seek consent from her beforehand only served to make this far worse.
19.3. Given the self-evidently private and sensitive nature of the contents of the Letter, the Claimant will invite the Court to draw the inescapable inference that this decision not to warn the Claimant or seek her consent was a deliberate decision taken in order in order to avoid the risk of her seeking to prevent the publication (had she been so warned) and in order to secure the enormous 'scoop' which the Defendant wished to achieve with such a highly sensational story.
19.4. Worse still, the Defendant chose to selectively edit the extracts of the Letter in a calculated attempt to portray the Claimant in an unfavourable light. Paragraph 9(8) above is repeated. While substantive parts were kept intact, those sections were cherry-picked to only disclose the parts that fitted the Defendant's agenda. For example, the omitted parts, which amount to almost half the letter, were removed as they demonstrate the Claimant's kindness and concern about the UK tabloid media exploiting her father, and did not fit the Defendant's narrative. Despite these deliberate omissions, the Defendant deceived and misled its readers by announcing that they were disclosing the "full content" of the "five-page letter", in both the sub-heading and the body of the Articles defined at Paragraphs 4(1) and 4(3) above.
19.5 The Claimant sets out below a visual representation of the Letter, reconstructing those sections which were reproduced by the Defendant in the Articles (shown in blurred form) and those sections which were deliberately omitted (shown in the form of redacted blocks of text, so as not to reveal more of the Claimant's private correspondence).
19.6. Further, the Claimant will refer to the fact that even once the proceedings were issued, and the Defendant's decision deliberately to suppress sections of the Letter was pointed out to the public, the Defendant then chose to put out a press release defending its actions and stating that "specifically, we categorically deny that the duchess's letter was edited in any way that changed its meaning." This was plainly a lie, as the Defendant knew full well. Paragraphs 9(8) and (9) above are repeated.
19.7 The Claimant has been deeply shocked and upset by the Defendant's deliberate and blatant distortion and manipulation of the true sentiment of her Letter (the privacy of which had already been violated by the Defendant).
19.8. However, as the Claimant is also distressed to realise, this is 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. The Claimant will refer to the following articles published by the Defendant by way of example of this:
(1) "Harry's girl is (almost) straight outta Compton: Gang-scarred home of her mother revealed – so will he be dropping by for tea" published on MailOnline on 20 November 2016;
(2) "Kitchen supported by Meghan's cookbook is housed inside mosque 'which has links to 19 terror suspects including Jihadi John' published on MailOnline on 24 November 2018;
(3) "How Meghan Markle's Australian aide Samantha 'the Panther' Cohen rose from a Brisbane home to Buckingham Palace – before becoming the second aide to walk out on the 'difficult Duchess' published on MailOnline on 10 December 2018
(4) "How Meghan's favourite avocado snack – beloved of all millennials – is fuelling human rights abuses, drought and murder" published by the Daily Mail on 22 January 2019;
(5) "Doria Ragland spotted alone in LA while daughter Meghan Markle parties with famous friends at her $300k baby shower" published on Dailymail.com on 20 February 2019.
19.9. Despite letters from the Claimant's solicitors outlining her distress and concern about the Articles, the Defendant has treated the Claimant's complaint in a dismissive manner, even refusing to accept the publication of the detailed contents of the Letter constituted an invasion of her privacy.
19.10. Further, despite all of the above, the Defendant still retains a copy of the Letter. Paragraph 16 above is repeated. This has only served to increase the Claimant's ongoing sense of intrusion."
"The omitted or suppressed parts of the Letter amount to almost half of the actual contents of the Letter, despite the Defendant claiming to its readers that it was publishing the Letter in full. The omitted parts demonstrate the Claimant's care for her father and others, as well as her concern about the UK tabloid media exploiting her father, and the fact that she addresses untruths previously published by the Defendant. Those elements did not fit the Defendant's narrative within the Articles. In such circumstances, the pronouncement by the Defendant that it was revealing the 'full content' of the 'five-page Letter' was intentionally misleading and dishonest."
Request 9 was: "Please state whether it is the Claimant's case that, if the Letter was to be published, the Defendant ought to have published the omitted parts of the Letter." Response 9 was as follows:
"As already clearly pleaded, the Defendant should not have published the Letter at all, whether in full or in part, without the Claimant's consent. The fact that it chose to publish parts of the Letter, whilst dishonestly claiming that it was publishing its 'full contents', and deliberately omitted or supressed other parts in order to portray a false picture, is relevant not only as a factor relating to the content, form and manner in which the information was published, but also a seriously aggravating feature of the Defendant's unlawful conduct in publishing any of its contents."
"The Claimant will rely upon the Defendant's attempts and methods used to track down and interview her father, and to publish stories based on the same. Pending the provision of full disclosure by the Defendant, the Claimant relies on the previous coverage of this by the Defendant which has appeared in its newspapers. The Claimant contends that it is disproportionate at this stage to have to identify each such article, given that this is entirely within the possession of the Defendant and it is unnecessary to do so for the Defendant to know the general nature of the case it will be expected to meet at trial (which is the purpose of CPR Part 18). If the Defendant contends that it is necessary to do so, then it should provide copies of all articles published referring to its reports about the Claimant's father, as well as the disclosure of all relevant documents evidencing its attempts and methods used to track down and interview her father, and the Claimant will then respond further."
"It is not accepted that the Claimant is not entitled to rely on examples of articles, given that this is part of her claim for damages and therefore the use of examples is a proportionate and reasonable method of supporting her case in this respect. The Claimant has already identified in her Particulars of Claim a series of articles which demonstrate that the Articles complained of are consistent with the Defendant's obvious agenda of publishing intrusive or offensive stories about the Claimant intended to convey her in a false and damaging light. This is the case which the Defendant is expected to meet."
"(a) This is part of the Claimant's claim for damages and therefore the use of examples is a proportionate and reasonable method of supporting her case in this respect. (b) Furthermore, this is not a claim for defamation and there is therefore no need to specify or attribute a meaning to the articles identified."
Notwithstanding this, Response 27 went on to set out, at some length, the claimant's case in relation to the five articles identified in sub-paragraphs 19.8(1) to (5). Having done so, the Response went on to expand the claimant's case by adding another four articles to this complaint:
"The Claimant will also refer to the numerous articles (as exemplified below) which the Defendant chose to publish about the 'renovation' of Frogmore Cottage, the Claimant's official residence, in which it stated that the Claimant had:
(a) "splashed out £5,000" on a copper bathtub (which does not exist and is completely untrue);
(b) "forked out £500k" on soundproofing to block out the noise of planes (which does not exist and is completely untrue);
(c) variously installed a "yoga studio" (which does not exist and is completely untrue); an "orangery" (which does not exist and is completely untrue), a "tennis court" (which does not exist and is completely untrue) and a "guest wing" for her mother to stay in when she visited (which does not exist and is completely untrue).
The clear intention was to portray the Claimant in a damaging light by suggesting that she had indulged in this series of absurdly lavish renovations, which were in fact false (as the Defendant was informed at the time) and entirely made up. Furthermore, the Defendant sought to portray these renovations as being done at "the taxpayer's expense", costing "£2.4m of YOUR cash". This was also false and misleading. In fact, the Cottage is a grade 2-listed 17th century residence, which was already undergoing much needed renovation for safety, and its refurbishment back to its original state as a single family home was funded by Her Majesty the Queen, as part of her obligation and responsibility to maintain or refurbish the upkeep of buildings of historical significance through a portion of the sovereign grant, made in exchange for the revenue from her Crown Estate (which is several times the amount of the sovereign grant).
The Claimant will refer to the following articles in which these statements were published: (a) "Luxury on tap! Meghan Markle and Prince Harry splash out up to £5,000 on a handmade copper bath for Frogmore Cottage" published in the Mail on Sunday on 30th June 2019; (b) "Meghan and Harry (or rather, the public purse) has splashed out £5,000 on this top-of-the -range copper bath – but is it money down the drain" published in the Daily Mail on 5th July 2019; (c) "Meghan and Harry forked out 500k on soundproofing Frogmore Cottage" published in the Daily Mail on 30th June 2019, and (d) "They could've moved next door! Fury as it emerges Harry and Meghan spent £2.4million of YOUR cash on Frogmore Cottage to escape rift with Kate and William' – and final bill could hit £3m" published in the Mail Online on 25th June 2019."
"(b) The passage referred to is part of the Claimant's claim for damages and therefore the use of examples is a proportionate and reasonable method of supporting her case in this respect.
(c) Notwithstanding this, the Claimant has already identified in her Response 27(d) those articles upon which she intends to rely. This is the case which the Defendant is expected to meet.
(d) Furthermore, this is not a claim for defamation and there is therefore no need to specify or attribute a meaning to the articles identified.
(e) The Claimant's case in relation to these articles has already been set out in Response 27(d)."
"(a) the allegation of dishonesty in paragraph 9(8);
(b) [the words which I have emphasised in paragraph 9(9) above];
(c) the allegation of malicious intent in paragraph 9(12);
(d) paragraph 19.8; and
(e) all the parts of Claimant's Further Information purporting to support the above paragraphs, namely:
(i) Responses 8, 9 (insofar as it contains an allegation of dishonesty), 16, 25, 26 and 27 of the Response; and
(ii) Responses 1 to 3 of the Second Response."
(1) the allegations of dishonesty and malicious intent in paragraphs 9(8) and 9(12) do not form part of any cause of action advanced against the defendant, are in any event not properly pleaded, and it would be a waste of costs and time and oppressive to the defendant to investigate the issues raised;
(2) the allegation in paragraph 9(9) is a bald assertion unsupported by any particulars, and the Response makes clear that there are no or no reasonable grounds for making this allegation;
(3) paragraph 19.8 contains allegations which are impermissible because they are not relied on as causes of action, and are irrelevant and/or they are not properly pleaded and particularised and/or it would be disproportionate to litigate the issues raised.
"… if it appears to the court –
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or
(c) that there has been a failure to comply with a rule, practice direction or court order."
(1) Particulars of Claim must include "a concise statement of the facts on which the claimant relies", and "such other matters as may be set out in a Practice Direction": CPR r 16.4(1)(a) and (e). The facts alleged must be sufficient, in the sense that, if proved, they would establish a recognised cause of action, and relevant.
(2) An application under CPR 3.4(2)(a) calls for analysis of the statement of case, without reference to evidence. The primary facts alleged are assumed to be true. The Court should not be deterred from deciding a point of law; if it has all the necessary materials it should "grasp the nettle": ICI Chemicals & Polymers Ltd v TTE Training Ltd  EWCA Civ 725, But it should not strike out under this sub-rule unless it is "certain" that the statement of case, or the part under attack discloses no reasonable grounds of claim: Richards (t/a Colin Richards & Co) v Hughes  EWCA Civ 266  PNLR 35 . Even then, the Court has a discretion; it should consider whether the defect might be cured by amendment; if so, it may refrain from striking out and give an opportunity to make such an amendment.
(3) Rule 3.4(2)(b) is broad in scope, and evidence is in principle admissible. The wording of the rule makes clear that the governing principle is that a statement of case must not be "likely to obstruct the just disposal of the proceedings". Like all parts of the rules, that phrase must be interpreted and applied in the light of the overriding objective of dealing with a case "justly and at proportionate cost". The previous rules, the Rules of the Supreme Court, allowed the court to strike out all or part of a statement of case if it was "scandalous", a term which covered allegations of dishonesty or other wrongdoing that were irrelevant to the claim. The language is outmoded, but I agree with Mr White that the power to exclude such material remains. Allegations of that kind can easily be regarded as "likely to obstruct the just disposal" of proceedings.
(4) "Abuse of process" is a sub-set of category (b). An abuse of process is a significant or substantial misuse of the process. It may take a variety of forms. Typical examples are proceedings which are vexatious, or attempts to re-litigate issues decided before, or claims which are "not worth the candle" (Jameel v Dow Jones & Co Inc  EWCA Civ 75  QB 946). But the categories are not closed.
(5) Rule 3.4(2)(c) gives the court "an unqualified discretion to strike out a claim or defence where a party has failed to comply with a rule, practice direction or court order": Civil Procedure n. 3.4.4. In many cases there may be alternatives (see, for instance, my judgment in Candy v Holyoake  EWHC 373 (QB)) but the right approach to serious procedural default may be to strike out the entire claim or, by analogy, an entire section of it (Hayden v Charlton  EWHC 3144 (QB) (Sharp J, DBE, affirmed on different grounds  EWCA Civ 791)).
Dishonesty and malice: PoC 9(8) and (12)
"A cause of action for misuse of private information will exist whenever:
(a) the particular information at issue engages Article 8 by being within the scope of the claimant's private or family life, home, or correspondence; and
(b) the conduct or threatened conduct of the defendant is such that, upon a proportionality analysis of the competing rights under Articles 8 and 10, it is determined that it is necessary for freedom of expression to give way."
Another way of putting the first limb is that the claimant enjoys a reasonable expectation of privacy in relation to the information at issue: see Campbell v MGN Ltd  2 AC 457  (Lord Nicholls).
"68 … dishonesty … is not an appropriate word to use in relation to the publication of information about someone's private life …. The media can fairly be expected to identify confidential information about an individual's private life which, absent good reason, it will be offensive to publish. We also believe that the media must accept responsibility for the decision that, in the particular circumstances, publication of the material is justifiable in the public interest."
"… the question whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher."
(1) Allegations that the defendant's editing of the Letter was "misleading" or "highly misleading" are not the same as allegations of dishonesty; they are allegations of objective fact, which can be assessed by reference to the Letter, without exploring the state of mind of any journalist or editor.
(2) To a lawyer, the word "deliberate" is not an allegation of dishonesty; it is an allegation of conduct which is not accidental.
(3) The allegation in paragraph 7 of the Particulars of Claim that the defendant "deliberately sought to mislead" the public by "selectively" editing the Letter may nonetheless insinuate dishonesty. The same may be true of the allegations in paragraph 9(10) that the defendant's reference to the Letter was "completely untrue and highly misleading as the defendant knew full well…" and that its meaning was "intentionally distorted". But that is not the right way to make an allegation of that kind. It is trite law that any charge of dishonesty must be made explicitly, clearly and distinctly. I do not accept Mr Sherborne's submission that the import of these passages in the Particulars of Claim could not be clearer. The word "dishonest" could have been used, and particularised.
(4) I can understand, and accept, Mr White's explanation, that the defendant did not apply to strike out those words as it did not regard them as allegations of dishonesty. His submission is that if that was the intention behind them, they should also be struck out. I agree. Mr Sherborne made clear that this was the intention. Accordingly, the principles I have identified apply equally to the words I have quoted.
"10.1 … a party must set out in any statement of case:
- full particulars of any allegation of fraud, dishonesty, malice or illegality; and
- where any inference of fraud of dishonesty is alleged, the facts on the basis of which the inference is alleged.
10.2 A party should not set out allegations of fraud and dishonesty unless there is credible material to support the contentions made. Setting out such matters without such material being available may result in the particular allegations being struck out and may result in wasted costs orders being made against the legal advisers responsible."
(1) First, and fundamentally, there is a lack of clarity about what exactly is the "dishonesty" alleged, even where that allegation is express. It seems that there are at least two allegations: one of dishonest editing or "suppression" of aspects of the letter that affected its overall meaning, and another of dishonestly misrepresenting that the Articles set out the "full text" of the Letter. The second appears to be ill-founded: Mr White pointed to one of the Articles which told the reader that Mr Markle had passed the full text of the Letter to the defendant, but could not sensibly be read as suggesting that the entire text had been published in the Article.
(2) Secondly, it is not said who is alleged to have been dishonest. It is trite that dishonesty or malice cannot be established against a corporation by aggregating the conduct of one employee with the state of mind of another. Fairness requires the identification of the individual(s) said to have behaved dishonestly. Mr Sherborne suggested that this was an artificial question as all the articles were written by a single journalist, Caroline Graham. When I asked if he was thereby saying that she was the target of the allegation of dishonesty he equivocated, suggesting that the allegation might be broader than this. Reasonably so. As Mr White pointed out, it is not obvious that editorial decisions about which parts of the Letter to quote were taken by the reporter. So, the claimant's case on this key point is unclear.
(3) Thirdly, the statement of case fails to set out sufficient details of the facts from which the dishonest state of mind is to be inferred; no sufficient credible basis is stated for alleging dishonesty against the unidentified person(s) against whom the accusation is levelled.
Dishonesty: PoC 19.4
"Stirring up": PoC 9(9)
"3.6 … harassed and humiliated the author's father (despite him trying to avoid the limelight), had then exposed him to the world as a 'Royal scammer' for staging 'fake' paparazzo photographs (in order, he claimed, to counteract the humiliation of him in the UK press) and had finally manipulated this vulnerable man into giving interviews, which he later described as 'lies and bullshit' …
12.10 … published highly damaging and distressing stories about Mr Markle, exposing him to the world at large as a 'Royal Wedding scammer' for having agreed to pose for 'fake' photographs and then suggesting in its reporting that his 'heart attack' was also fake (apparently contrary to the Defendant's position in this litigation) …"
"3. … it is manifestly absurd as a matter of principle, and demonstrably unsustainable on the true factual position (as set out in this Reply), for the Defendant to suggest, as it appears to do, that:
3.6 In revealing the detailed contents of this letter, the UK media publisher was simply seeking to 'set the record straight' on behalf of the author's father as to a 'dispute' which had arisen as to the correct version of events surrounding their relationship (as opposed to self-serving commercial interest), when in fact it was the same publisher … [that had behaved in the specified ways] thereby causing the very 'dispute' which they claim justified the publication of this letter, as well substantial damage to his relationship with his daughter."
"In the light of the publication across the world's media of the one-sided, and/or misleading, account of the Claimant's personal relationship with her father and the contents of the Letter set out in the People interview, it was necessary, proper and in the public interest to publish the full story concerning the Letter and the response to it, including Mr Markle's account of events. This was necessary for the sake of truth, fairness, and Mr Markle's reputation, and so that the public should not be misled."
Nor has Mr White convinced me that this aspect of the claimant's case ought necessarily to be excluded on the grounds of proportionality. But I do not need to decide those issues because I am persuaded that the Reply suffers from the same lack of particularity as paragraph 9(9) of the Particulars of Claim. The passages I have set out represent a general, broad-brush attack without any of the detail that would be necessary, applying the principles I have identified.
The "agenda" articles: PoC 19.8
(1) Paragraph 19.8 and Responses 26 and 27 are pleaded in support of the case, stated in the body of paragraph 19, that the claimant has been caused distress "by reason of the matters set out above", that is to say the allegedly wrongful disclosures, in the Articles of 10 February 2019. That is their only possible relevance.
(2) These paragraphs are not, however, directly concerned with any allegedly wrongful disclosure in the Articles complained of. They relate to 9 entirely different articles. Five of those articles were published before the Articles complained of and four of them afterwards. The nine are each said to be "intrusive or offensive stories about the Claimant intended to portray her in a false and damaging light." The list is non-exhaustive. The 9 are said to be examples of a broader category of unidentified articles of the same character.
(3) Pausing there, the claimant is on the face of it inviting consideration of each of the 9 articles, to determine whether it is (a) about her; (b) intrusive or offensive (it appears that either will do); and (c) intended by some unspecified person on behalf of the defendant to portray her in a false and damaging light (it appears that both are required). The claimant is inviting consideration of the same issues in relation to an unknown number of unidentified further articles. It is relevant to note that none of these are said to be articles written by Caroline Graham. They involve a large number of other journalists; according to Mr White, there were 14 other authors.
(4) The next step in the enquiry, it seems, would be to determine whether the articles, taken together, demonstrate an "agenda" of publishing stories of the specified character. That is not a term of art, and its meaning in this context is not crystal clear. But would seem to call for some examination of whether the articles were linked by some overarching editorial policy.
(5) It is obvious that the resolution of the pleaded issues would require very considerable time and effort. For each article, the features relied on in support of the contention that it was "intrusive" or "offensive" to the claimant would need to be identified. So would the respects in which it was "false and damaging". The claimant would have to say who intended them to be so, and on what grounds that allegation was made. There would then have to be an examination of the "agenda", of which details would need to be given and assessed by way of evidence. In this terrain, it is not difficult to imagine substantial arguments about the ambit of disclosure.
(6) The difficulties to which this exercise could give rise are illustrated when one considers some of the articles relied on. First, aspects of the claimant's case are only to be found in correspondence from her solicitors. That is no better than "pleading" by way of skeleton argument. Secondly, it appears from the correspondence that the claimant's case in relation to the "false and damaging" aspects of the article complained of in paragraph 19.8(2) is that it meant that, by working on the cook book referred to, she was supporting or endorsing terrorism. Her case in relation to the articles complained of in paragraph 19.8(4) is, apparently, that it suggested that by liking or eating avocados she was fuelling or supporting human rights abuses, murder and environmental devastation. Mr White made clear that these suggestions would be fiercely disputed as extravagant and untenable interpretations; he submitted, with justification, that this illustrates the need for the claimant to plead out what she says the articles suggested about her. Further, one of the articles complained of is said to have stereotyped an entire black community. The claimant's case as to how that amounts to something "about her" which is intrusive or offensive would need explanation.
(7) All of this might be legitimate, and some of it might be inescapable, and entirely proportionate, if the claimant was seeking to advance substantive claims for compensation in respect of these further articles, on the basis that they were tortious in their own right. There is of course nothing wrong in principle with a claimant putting forward a case that she has been the victim of a campaign of intentional wrongdoing, for which remedies should be granted. But that is not the nature of the claimant's case. She is not seeking damages for the 9 additional articles, or the others of which the 9 are examples. The Responses have made that clear, and Mr Sherborne has been emphatic that these matters are relied on only in support of a claim for damages for distress arising from the publication of the Articles complained of.
(8) The distress relied on is that caused by the "realisation" that the defendant's "deliberate and blatant distortion" of her Letter is "wholly consistent with" the defendant's "obvious agenda". Those are the facts that, if proved, could lead to an increase in the damages awarded for wrongful disclosure of the information in the Letter.
"Pleas in aggravation can sometimes be over-elaborate, calling for factual enquiries that are disproportionate to what is truly at stake. One must be careful not to let the aggravated damages tail wag the cause of action dog. Among the court's case management powers is the power to exclude an issue from consideration: CPR 3.1(2)(k). The scope of the case is not just a matter for the parties' choice. If the overriding objective requires it, the court should and will rule out, or decline to permit the incorporation of, issues which it would otherwise have been legitimate to raise."
"… by proper case management be confined within manageable and economic bounds. They should not descend into uncontrolled and wide-ranging investigations akin to public inquiries, where that is not necessary to determine the real issues between the parties."
McPhilemy v Times Newspapers Ltd  EMLR 751, 773 (May LJ).
Summary of conclusions