Judgment and Order: Duchess of Sussex v Associated Newspapers Ltd.

By Seauton, 24 February 2019 - Own work, CC BY-SA 4.0,

 https://commons.wikimedia.org/w/index.php?curid=77004919

 

Jane Lambert

Chancery Division (Lord Justice Warby) Duchess of Sussex v Associated Newspapers Ltd [2021] EWHC 510 (Ch) (5 March 2021)

On 11 Feb 2021, Mr Justice Warby (as he then was) gave judgment in the Duchess of Sussex's application for summary judgment in her claim for misuse of personal information and copyright infringement.  She was largely successful and I discussed his judgment in Summary Judgment - Duchess of Sussex v Associated Newspapers 12 Feb 2021.

There remained the following issues which the learned lord lustice set out at para [10] of a further judgment (HRH The Duchess of Sussex v Associated Newspapers Ltd. [2021] EWHC 510 (Ch) (5 March 2021) after a full day's hearing on 2 March 2021:

"(1) What are the remaining issues in the action, and what is the most appropriate procedural mechanism for dealing with them?
(2) What remedies are appropriate at this stage? This issue raised a number of sub-issues. These are whether the claimant is entitled to:
(i) a declaration as to her rights;
(ii) injunctive relief to restrain repetition of the acts complained of;
(iii) an order for publication and dissemination pursuant to Article 15 of the Enforcement Directive and PD63;
(iv) an order for delivery up and/or destruction of infringing copies of the Electronic Draft;
(v) an account of profits for copyright infringement; and/or
(vi) damages for misuse of private information.
(3) What order should be made as to costs.
(4) Whether the defendant should be granted permission to appeal."

The Remaining Issues in the Action

The issues that remained outstanding after the summary justice application were the duchess's claim for breach of statutory duty under the Data Protection Act 2018, the extent of Mr Knauff's contribution to the drafting of the duchess's letter to her father and whether it made him a joint author and the pecuniary relief to which she was entitled for copyright infringement and misuse of personal information.  As I said in Copyright: Software Solutions Ltd v 365 Health and Wellbeing Ltd 3 March 2021, a successful claimant can choose an account and surrender of the profits that have accrued to the defendant as a result of his wrongdoing or an inquiry as to the claimant's loss from the wrongdoing and an assessment of the damages in compensation for the wrongdoing.  The claimant can usually require the defendant to supply information to the claimant before making his election.  In this case, the duchess chose an account without requiring the defendant to supply evidence of its wrongdoing,

Most Appropriate Procedural Mechanism for Dealing with the Remaining Issues

Lord Justice Warby indicated that the days in October that has been set aside for trial were still available for a hearing of the remaining issues if required.  He ordered a directions hearing to take place between 20 April and 21 May which will consider the following issues:

 

(a) the question of what form of financial remedy for misuse of private information may be pursued by the claimant at the Further Hearing; 

(b) the future management of the remaining issues in the copyright claim; 

(c) the further conduct of the data protection claim, including any application for summary judgment; and 

(d) the timing and time estimate for the further hearing, including the question of whether the October 2021 dates are suitable for that purpose.

The judge also directed the defendant to state its case on the issue of ownership of the copyrights in the duchess's letter.  He ordered provision to be made for the notification and joinder of any person alleged to be an owner or co-owner of copyright in the draft.  Any application by the claimant for summary judgment on the data protection claim must be filed and served promptly, and in any event by no later than 4 pm on 16 March 2021. By no later than 4 pm on 23 March 2021, the claimant must re-state her position in respect of the financial remedies she wishes to pursue in respect of misuse of private information.  It was understood that she may simply reiterate her present stance.

Relief

His lordship granted the following relief:

(1)   a declaration in the following terms:

"The Defendant has misused the Claimant's private information and infringed her copyright in the Electronic Draft by publishing the extracts of the Letter that it did in The Mail on Sunday and in Mail Online."

The publisher had opposed the remedy on the ground that it was contrary to principle, procedurally inappropriate, unnecessary and not even pleaded.  It was argued that the summary judgment set out the outcome sufficiently,  His lordship disagreed.  The judgment was long and was unlikely to be read by many members of the general public.  Moreover, the defendant had been slow in removing the offending article and reporting accurately the outcome of the case.

(2)   Lord Justice Warby granted a final injunction to restrain misuse of private information with a limited public domain carve-out to ensure that it does not prohibit publication of a fair and accurate report of the judgment (or for that matter commentary on the judgment).

(3)  He made the following order for publication and dissemination of his judgement pursuant to para 26.2 of the Part 63 Practice Direction,   He ordered the following notice to appear on page 3 of The Mail on Sunday:

"The Duchess of Sussex

Following a hearing on 10-20 January 2021, the Court has given judgment for The Duchess of Sussex on her claim for copyright infringement. The Court found that Associated Newspapers infringed her copyright by publishing extracts of her handwritten letter to her father in The Mail on Sunday and in Mail Online.

There will be a trial of the remedies to which the Duchess is entitled, at which the court will decide whether the Duchess is the exclusive owner of copyright in all parts of the letter, or whether any other person owns a share."

The judge ordered the same notice to appear in The Mail Online for a week.   The underlined text should contain a hypertext link to the judgment together with the words "

"The full judgment and the Court's summary of it can be found here."

His lordship did not consider it appropriate to grant a final or interim injunction or order for delivery up or delivery up and destruction of infringing copies at this stage.   Injunctive relief would await the determination of the remaining copyright issue.

Costs

Lord Justice Warby awarded the duchess:

(1)   her costs in Duchess of Sussex v Associated Newspapers Ltd. [2020] EWHC 2160 (Ch), [2020] WLR(D) 456 which I discussed in Confidentiality - Duchess of Sussex v Associated Newspapers Ltd, on 13 Aug 2020;

(2)   90% of her costs of the summary judgment application, the allocation of the remaining 10% to be reserved to await the determination of the remaining copyright issues;

(3)    her costs of the liability issues in the misuse claim, with the exception of those relating to the issue raised by paragraph 9 (9) of her particulars of claim which was not pursued on the summary judgment application, and

(4)    her costs to date of the liability issues in respect of copyright except for the joint authorship issue.

His lordship ordered Associated Newspapers to make a payment of £450.000 on account within 14 days.

Permission to Appeal

The judge refused permission to appeal on the ground that there was no real prospect of the Court of Appeal coming to a different view. 

Lord Justice Warby

Lord Justice Warby's elevation to the Court of Appeal, which was announced in July 2020, took effect on 3 Feb 2021 (see Wikipedia Mark Warby).   Although he heard this case in the Chancery Division, he was assigned to the Queen's Bench Division as a first instance judge.

Contact

Anyone wishing to discuss this case or any of the issues that arose in it may call me on 020 7404 
5252 during office hours or send me a message through my contact form.