Practice - Mail's Strikeout Application

Basher Eyre / Junction of Fetter Lane and Rolls Buildings / CC BY-SA 2.0

Jane Lambert

Chancery Division (Mr Justice Warby)  Duchess of Sussex v Associated Newspapers Ltd (Rev 1) [2020] EWHC 1058 (Ch) (1 May 2020)

This was an application by the publisher of the Mail on Sunday and the Mail Online to strike out certain allegations contained in the particulars of claim and further information of the Duchess of Sussex and later the reply in an action that she has brought against the publisher for copyright infringement, misuse of private information and infringement of her rights under the General Data Protection Regulation.  The complaint arises from the newspaper's publication of a letter from the duchess to her father on 10 Feb 2019.

Nature of the Application
It is important to understand from the outset that this was a procedural application and that no decision has been made on the merits of the Duchess of Sussex's claim against the publisher.

In common law countries such as England, it is for the parties rather than the court to determine the issues to be decided and the evidence to be produced.  The claimant sets out the facts that he or she intends to prove and the rights upon which he or she relies in a document called the particulars of claim.  The defendant states the faces he or she admits, those he or she denies and those that he or she can neither admit nor deny but requires the claimant to prove in a document known as the defence.  Sometimes a defendant raises an issue that appears to undermine part or all of the claim.  If the claimant can answer that point he or she may do so in a document known as the reply.   Since 23 April 1999, the particulars of claim, defence and reply and any further information that may be supplied pursuant to CPR Part 18 have been referred to collectively as statements of case.   Before that date, they were called pleadings and documents that serve a similar function in other countries are still referred to by that name in those jurisdictions,

To prevent costs from being incurred unnecessarily on issues that cannot or should not be argued the Civil Procedure Rules empower the courts to strike out allegations that are wrong in law, irrelevant or otherwise inappropriate.  In this case, the publisher objected to the duchess's allegations that it had acted dishonestly, and in bad faith, the publisher had deliberately dug up or stirred up conflict between the duchess and her father and that the duchess was distressed by the publisher’s “obvious agenda of publishing intrusive or offensive stories about [her] intended to portray her in a false and damaging light”.  The grounds of the objection were that the allegations were irrelevant in law, inadequately particularized, 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.

Procedural History
The action was launched on 29 Sept 2019. Particulars of claim were filed on 14 Oct 2019. The publisher requested further information under CPR Part 18.  A response was served on 11 Nov 2019, Another request was made under Part 18 and a further response supplied on 9 Dec 2019. On 14 Jan 2020, the publisher brought this application. It came on before Mr Justice Warby on 24 April 2020. During the hearing, the applicant applied to strike out parts of the reply. The learned judge delivered judgment on 1 May 2020.

In Duchess of Sussex v Associated Newspapers Ltd (Rev 1) [2020], EWHC 1058 (Ch) (1 May 2020) his lordship granted the application.  However, he added that some of the allegations that he struck out were without prejudice to the duchess’s right to apply for permission to reinstate them by permissible amendment.

In reaching his decision the judge considered the cause of action and defence between paragraphs [10] and [21] of his judgment.  He quoted paragraphs 8, 9 and 19 of the particulars of claim in full at paragraph [22].  He referred to the Part 18 requests and replies in full between [24] and [29].  He quoted the relief sought in the application in [30] and summarized the grounds in [31].  He construed CPR 3.4 (2) between paragraphs [32] and [34].

Allegations of Dishonesty in Paragraphs 9 (9) and (12) of the Particulars of Claim
Those allegations were intended to support the contention that the publication of the contents of the duchess's letter to her father was wrongful and constituted an unjustified infringement of the Claimant’s right to privacy and a misuse of her private information.  Referring to paragraph 5.14 of Tugendhat and Christie: The Law of Privacy and The Media, the judge noted that dishonesty is not an essential ingredient of the tort of misusing private information.  He said at paragraph [46] of his judgment that he was satisfied that the allegations of dishonesty were irrelevant to the pleaded case and that their incorporation in paragraph 9 of the particulars of claim was likely to obstruct the just disposal of the proceedings, by calling for an investigation which could have no bearing on the decision as to liability.

His lordship also accepted the publisher's second and distinct ground for striking out, namely that the allegations of dishonesty and malice were inadequately pleaded. Paragraph 8.2 of the Part 16 Practice Direction requires a claimant who wishes to rely on any allegation of “fraud”, “misrepresentation” or “wilful default” to set out the details in the particulars of claim. These requirements are explained in paragraphs 10.1 and 10.2 of the Chancery Guide, in terms which reflect well-established common law principles:

“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 or 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.”

On the above grounds, the judge struck out paragraph 9 (8) and(12) and the further information supplied on 11 Nov and 9 Dec 2019.

Allegation of Dishonesty in Paragraph 19.4 of the Particulars of Claim
Paragraph 19.4 of the particulars of claim repeated paragraph 9 (8), The subparagraph supported an allegation that the duchess had suffered  "considerable distress, damage, humiliation and embarrassment" for which she was entitled to "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:"  Having struck out paragraph 9 (8) of the particulars of claim it followed that paragraph 19.4 had to go.

Paragraph 9 (9) of the Particulars of Claim
This paragraph alleged:

"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,"

It was pleaded in support of an allegation of misuse of private information. Once again the judge objected to it on the ground that it was irrelevant to the issue of liability for that tort and it had been inadequately pleaded.

The Reply
In the course of the hearing, the publisher applied to strike out the following paragraphs of the reply:

"3.6.   "[the defendant had]… 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   "[the defendant had]  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) "

The judge had been minded to reject the application as it had been made without notice. However, he entertained it on the grounds that the duchess had a fair opportunity to respond to the publisher's contention and that the objection was similar to others that had been raised in this case.  He dismissed the argument that the allegations should be struck out on grounds of proportionality but he agreed with the submission that the allegations had been pleaded inadequately. He described the above passages as representing "a general, broad-brush attack without any of the detail that would be necessary".

The Agenda 
Paragraph 19.8 of the particulars of claim alleged:

"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 on 20 February 2019."

Again, this allegation had been made in support of the contention that the duchess had suffered considerable distress, damage, humiliation and embarrassment and was therefore entitled to aggravated damages and/or compensation under the GDPR and/or Data Protection Act 2018.

His lordship described the pleaded case as "convoluted" and he unpacked the allegations at paragraph [71] of his judgment.  From his analysis, he concluded that the pleading of the case was wholly inadequate and much more detail would be required to enable the pleaded claims to be fully understood and dealt with. Secondly, and crucially, that the costs and time that would be required to investigate and resolve the factual issues raised by the case as currently pleaded bore no reasonable relationship of proportionality with the legitimate aim of recovering some additional compensation for emotional harm.  Those conclusions were more than enough, in the judge's view, to strike out those passages,

The passages of the Duchess of Sussex's statements of case that have been struck out will not have affected any of her claim's fundamentals. As Mr Justice Warby observed at paragraph [80]. none of those passages went to the heart of the duchess's case which is the legitimacy or otherwise of the publication of a personal letter by the duchess to her father without the duchess's permission.  In some respects, it may turn out that the removal of those passages may have made the task of her legal team easier. But a strikeout is never desirable.  It is often embarrassing and psychologically damaging for the losing side. Costs will have been incurred and a payment to the other side will have to be made. Many lay clients in that situation wonder about the strength of their case, second guess the advice that they have received to date and question the prowess of their legal representatives.

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