Mischief of a kind: is notice of one, notice of all?
Decades may have gone by, but the phone hacking scandals of the mid-2000s continue to busy the High Court. Notwithstanding the stale nature of the underlying allegations, to this day the high-quality legal teams and careful judicial attention sustain judgments with importance far beyond the parties, with notable lessons flowing. The recent decision of Fancourt J in Duke of Sussex v NGN  EWHC 1944 (Ch) is an important recent example.
Relevant background – celebrities, victims and princes as targets
The Duke of Sussex is one of a few claimants who have maintained litigation against the leading tabloids who are alleged to have phone-hacked, blagged and otherwise obtained and misused personal information. The Duke alleges that the defendant misused his personal information by phone hacking his voice mail, blagging private information and subsequently publishing the same widely. The personal information at issue is contained in over 200 articles regarding the Duke’s personal and professional activities.
The phone hacking litigation has, of course, received much public attention. However, the number of claim forms have, even by the standards of an English legal scene dominated by settlements, not been followed by anything like the equivalent numbers of merits judgments and final orders. Rather, in a tactic criticised by some, the media companies in question have offered and concluded settlements at the high end of conceivable recovery ranges. In so doing, the defendants have put the claimants at significant cost risk if they were not to settle. No matter the irony of press entities wishing to conclude settlements behind closed doors and confidentially, they have paid a heavy price. NGN (alone) set aside over £125 million for further settlements in its latest accounts.
The technical defence
Recent times have seen something of a change of tack in the media companies’ responses to these claims from settlement to more robust defences.
With respect to the Duke of Sussex, that approach involved seeking to strike out (alternatively enter summary judgment against) his claims, on the basis that the claim was time barred under the Limitation Act 1980. The Duke was said by the publisher to have been made aware of the phone hacking in 2006, when it informed the Royal Family of a former Royal Correspondent’s hacking activities. In contrast, on the Duke’s pleaded case, while he was aware of very limited hacking, for various reasons (somewhat tied up in Royal intrigue) he only became aware that he could bring a claim in around 2018.
At the heart of the three-day contested hearing was an alleged contradiction in the Duke’s case. While his pleaded position was that he only became aware he could bring a claim in 2018, in his responsive evidence to the strike-out application (and proffered amendments to his statements of case), the Duke belatedly asserted that there had been a secret 2012 agreement between the Royal Household and NGN to delay phone hacking claims from, amongst others, the Duke, until the conclusion of pre-existing phone hacking litigation that NGN was defending. The Duke contended that this agreement, concluded in somewhat unspecific terms and communicated to him potentially by senior officials, alternatively the Royal Family’s then-solicitors, estopped NGN from seeking to strike out his claim on the grounds of limitation. On the Duke’s case, NGN having procured the delay of such claims based on an agreement to settle them promptly if their timing did not interfere with other litigation, it was not open to them to now claim the Duke should have brought his claim many years ago.
The Duke adduced various evidence of negotiations between the Royal Household and NGN that suggested an attempt to settle the claims around the time of his marriage, apparently on the basis that the claims had been delayed by agreement.
The judge’s view
Following a careful analysis, Fancourt J concluded that the Duke’s position with respect to limitation on the phone hacking claims was hopeless. The Duke, seeking to amend his position considerably, had to carry some degree of conviction in his case and not merely leave it at the level of being theoretically arguable. The amended case was late, without explanation as to how the Duke had only now come to remember the alleged ‘secret agreement’ and involved contradictory contentions: for example, the Duke claimed to have relied on the agreement to delay his claim since 2012, but concurrently to have only become aware of a potential claim that he had in 2018.
Evidence relied upon by the Duke, such as the fact the Prince of Wales had obtained a significant settlement without facing a limitation argument, was capable of explanation in multiple ways and was not the cogent evidence of the type the court would require. The Duke could also not escape the knowledge of his agents, not least his then-solicitors, notwithstanding the Duke’s more recent suggestion that their focus was on the Royal Family’s interests as a whole rather than his own. Those same solicitors had nonetheless been acting for the Duke.
Notwithstanding the judge’s conclusion as to phone hacking, the Duke’s case against NGN is not lost entirely. The judge concluded that even if the Duke had instructed his solicitors to pursue the phone hacking claim when he clearly could (and in the event should) have done, that does not mean that the blagging and other improper access to his personal information would have come to light. While investigating phone hacking may have identified that further wrongdoing, on the evidence before Fancourt J now, he could not conclude that to the requisite standard to end those claims as well. The Duke’s claims, therefore, in part, survive to be litigated.
Lessons moving forward
The old adage that every case turns on its own facts is now as trite as it is true. There must be a temptation where the parties are royal and the misconduct so extraordinary as that of the press in the phone-hacking scandal, to underline that phrase more than once.
However, there are a number of key lessons to take forward from this decision of Fancourt J, being that it always helps if claimants are consistent in their recollections, that the limitation trigger for one form of wrongdoing – no matter how closely connected – may not be the starting gun for bringing claims regarding different wrongdoing and that pleading multiple causes of action (where the same is properly available) retains the same advantages so often recalled.
This article was first published in the Young Fraud Lawyers Association‘s summer newsletter 2023.