Confidentiality - Duchess of Sussex v Associated Newspapers Ltd
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Jane Lambert
Chancery Division (Mr Justice Warby) Duchess of Sussex v Associated Newspapers Ltd (Rev 1) [2020] EWHC 2160 (Ch) (5 Aug 2020)
This was an application by the claimant for an order to restrain the publisher of the Daily Mail and The Mail on Sunday from using information that she had supplied in response to a request for further information under CPR Part 18 about the identity of individuals who had provided information on the claimant in confidence to the US magazine The People for any purpose other than the defence of a claim that had been brought against it for misuse of personal information, infringement of copyright and breach of the General Data Protection Regulation. The application came on before Mr Justice Warby on 29 July 2020 and he handed down judgment in Duchess of Sussex v Associated Newspapers Ltd (Rev 1) [2020] EWHC 2160 (Ch) (5 Aug 2020).
The information in question had been offered to The People by friends of the claimant to counter some of the negative publicity and public criticism of the duchess that had circulated in the press and elsewhere. It was offered voluntarily by the informants on their own initiative and without any prompting from the duchess. The Duchess of Sussex knew nothing about the initiative until after publication of an article entitled "The Truth About Megham" which was based on the information had appeared.
The defendant referred to the article in particulars of its allegation that "… 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." The claimant replied that the defendant's case was misconceived. The interview had not been authorized by her. She said that she did not know of the People interview, let alone procure or consent to any reference to her letter to her father. The defendant asked for further information about the friends who had spoken to The People.. The claimant supplied the requested information in a confidential schedule to its response.
The defendant acknowledged that it had received information about the claimant's friends but it did not identify them. On 6 July 2020, it warned the claimant that the use of a confidential schedule was illegitimate and that it would identify the friends unless the claimant obtained an order preventing it from doing so. On 9 July 2020, the claimant applied for the following order:
"1. Pursuant to CPR Part 18.2, the information in [the Schedule] … must not be used by the Defendant for any purpose except for that of these proceedings. Without prejudice to the generality of the foregoing, the Defendant must not:
(a) publish and/or communicate and/or disclose to any other person and/or otherwise use all or any part of any information contained in the Confidential Schedule except for the purpose of these proceedings; and/or
(b) publish any information which is liable to, or might identify those people named in [the Schedule] or which otherwise contains material which is liable to, or might lead to, the identification of those people … in any such respect, provided that nothing in this Order shall prevent the publication, disclosure or communication of any information which is contained in the public judgments of the Court.
2. Upon the [Court] being satisfied that it is strictly necessary, an order pursuant to CPR Part 5.4C (4):(a) (i) no copies of the Confidential Schedule; and
(ii) no copies of the witness statements in support of this application will be provided to a non-party without further order of the court,
(b) Any non-party other than a person notified or served with this Order seeking access to, or copies of the abovementioned documents, must make an application to the Court, proper notice of which must be given to the other parties.
3. The Claimant be permitted in these proceedings to refer to those people whose names are set out in [the Schedule] as Friends A to E."
The application was supported by a witness statement from one of the claimant's solicitors exhibiting a confidential exhibit with particulars of the informants. There was also a witness statement from the claimant that alleged:
"Each of these women is a private citizen … and each has a basic right to privacy. …for the Mail on Sunday to expose them in the public domain for no reason other than clickbait and commercial gain is vicious and poses a threat to their emotional and mental wellbeing. The Mail on Sunday is playing a media game with real lives."
(a) publish and/or communicate and/or disclose to any other person and/or otherwise use all or any part of any information contained in the Confidential Schedule except for the purpose of these proceedings; and/or
(b) publish any information which is liable to, or might identify those people named in [the Schedule] or which otherwise contains material which is liable to, or might lead to, the identification of those people … in any such respect, provided that nothing in this Order shall prevent the publication, disclosure or communication of any information which is contained in the public judgments of the Court.
2. Upon the [Court] being satisfied that it is strictly necessary, an order pursuant to CPR Part 5.4C (4):(a) (i) no copies of the Confidential Schedule; and
(ii) no copies of the witness statements in support of this application will be provided to a non-party without further order of the court,
(b) Any non-party other than a person notified or served with this Order seeking access to, or copies of the abovementioned documents, must make an application to the Court, proper notice of which must be given to the other parties.
3. The Claimant be permitted in these proceedings to refer to those people whose names are set out in [the Schedule] as Friends A to E."
The application was supported by a witness statement from one of the claimant's solicitors exhibiting a confidential exhibit with particulars of the informants. There was also a witness statement from the claimant that alleged:
"Each of these women is a private citizen … and each has a basic right to privacy. …for the Mail on Sunday to expose them in the public domain for no reason other than clickbait and commercial gain is vicious and poses a threat to their emotional and mental wellbeing. The Mail on Sunday is playing a media game with real lives."
The press other than the defendant's newspapers became aware of the application immediately after it had been made.
Mr Justice Warby referred to CPR 5.4C and CPR 18.2 and the common law principle of open justice that "allows a non-party to seek copies of documents that fall outside the scope of r 5.4C, and it may require the Court to provide or facilitate access: see Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38 [2020] AC 629). He also considered the evidence that had been filed by both sides and the arguments of the parties.
At paragraph [54] the learned judge said:
"The key question, therefore, is how to resolve the competing demands of confidentiality and open justice. The core test is the one identified by Mr White: the preservation of anonymity must be shown to be necessary in the interests of the administration of justice. But there is more to it than that. This is not an exercise in assessing competing generalities. As ever, it is necessary to consider the weight of the specific factors that are engaged, applying an intense focus to the particular facts of the case. As Mr White correctly submits, not every claim to source protection is of equal weight; as I put it in Hourani v Thomson [2017] EWHC 173 (QB) [2017] 1 WLR 933 [32], 'not all sources are equal'. Nor, however, are all claims to vindicate the principle of open justice of equal weight or merit."
He noted at [60] that the defendant's evidence and arguments had invoked the open justice principle, but they had not explained in any convincing way how the public identification of the five friends would have any real value in advancing the purposes served by that principle. In his judgment, at this stage, such disclosure would have very limited if any value to that end. "The rights of confidentiality that are relied on by the claimant comfortably outweigh such value as disclosure might have for that purpose."
He added at [62]:
"At this stage, continued anonymity not only upholds the agreement made between People magazine and the five friends, and the reasonable expectations which that generated; it also supports the proper administration of justice by shielding the friends from the 'glare of publicity' in the pre-trial stage. Generally, it does not help the interests of justice if those involved in litigation are subjected to, or surrounded by, a frenzy of publicity. At trial, that is a price that may have to be paid in the interests of transparency. But it not a necessary concomitant of the pre-trial phase. It is reasonable to be concerned that in that phase the peculiarly febrile atmosphere surrounding this case, and some of the coverage, could act as a deterrent and undermine fairness and due process. The evidence includes, for example, an article published by the defendant that speculates about whether one named individual will "still back Meghan in 'trial of the century' after a falling-out between them. The evidence shows to my satisfaction that this article is misleading and inaccurate, as it relied on some garbled and false claims contained in third-party publications. But it is an illustration of the kind of undesirable pressure that potential witnesses might face."
His lordship granted the application under CPR 18.2 until trial with modifications of paragraph 3. He emphasised that the orders will be kept under review and that they would be considered again at the pre-trial review. He also ordered a trial window and a case and cost management conference. He noted at the beginning of his judgment that in most disputes with newspapers it is they rather than the claimant that seek the confidentiality of sources. Anyone wishing to discuss this article or the issues in those case generally should call me on +44 (0)20 7494 5252 during office hours or send me a message through my contact form.
At paragraph [54] the learned judge said:
"The key question, therefore, is how to resolve the competing demands of confidentiality and open justice. The core test is the one identified by Mr White: the preservation of anonymity must be shown to be necessary in the interests of the administration of justice. But there is more to it than that. This is not an exercise in assessing competing generalities. As ever, it is necessary to consider the weight of the specific factors that are engaged, applying an intense focus to the particular facts of the case. As Mr White correctly submits, not every claim to source protection is of equal weight; as I put it in Hourani v Thomson [2017] EWHC 173 (QB) [2017] 1 WLR 933 [32], 'not all sources are equal'. Nor, however, are all claims to vindicate the principle of open justice of equal weight or merit."
He noted at [60] that the defendant's evidence and arguments had invoked the open justice principle, but they had not explained in any convincing way how the public identification of the five friends would have any real value in advancing the purposes served by that principle. In his judgment, at this stage, such disclosure would have very limited if any value to that end. "The rights of confidentiality that are relied on by the claimant comfortably outweigh such value as disclosure might have for that purpose."
He added at [62]:
"At this stage, continued anonymity not only upholds the agreement made between People magazine and the five friends, and the reasonable expectations which that generated; it also supports the proper administration of justice by shielding the friends from the 'glare of publicity' in the pre-trial stage. Generally, it does not help the interests of justice if those involved in litigation are subjected to, or surrounded by, a frenzy of publicity. At trial, that is a price that may have to be paid in the interests of transparency. But it not a necessary concomitant of the pre-trial phase. It is reasonable to be concerned that in that phase the peculiarly febrile atmosphere surrounding this case, and some of the coverage, could act as a deterrent and undermine fairness and due process. The evidence includes, for example, an article published by the defendant that speculates about whether one named individual will "still back Meghan in 'trial of the century' after a falling-out between them. The evidence shows to my satisfaction that this article is misleading and inaccurate, as it relied on some garbled and false claims contained in third-party publications. But it is an illustration of the kind of undesirable pressure that potential witnesses might face."
His lordship granted the application under CPR 18.2 until trial with modifications of paragraph 3. He emphasised that the orders will be kept under review and that they would be considered again at the pre-trial review. He also ordered a trial window and a case and cost management conference. He noted at the beginning of his judgment that in most disputes with newspapers it is they rather than the claimant that seek the confidentiality of sources. Anyone wishing to discuss this article or the issues in those case generally should call me on +44 (0)20 7494 5252 during office hours or send me a message through my contact form.
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