A post about the Duke of Sussex’s recent litigation and yesterday’s legal decision.
Yesterday’s judgment from Mr Justice Fancourt will have made challenging reading for the Duke of Sussex.
Prince Harry had told the court that his reason for delaying a claim of phone hacking against the Sun newspaper group (NGN) in the Mobile Telephone Voicemail Interception litigation was because:
” a secret agreement had been reached between the institution (the family) and senior executives at NGN (the Sun) whereby members of the Royal Family would bring phone hacking claims only at the conclusion of the Mobile Telephone Voicemail Interception Litigation and at that stage the claims would be admitted or settled with an apology. The reason for this was to avoid the situation where a member of the Royal Family would have to sit in the witness box and recount the specific details of the private and highly sensitive voicemails that had been intercepted… This agreement, including the promises from NGN for delayed resolution was, obviously, a major factor as to why no claim was brought by me at that time…“
Mr Justice Fancourt was perplexed by Harry’s explanation. He opined, ‘The Duke’s evidence is…contrary to his pleaded case, that in about 2012 there was considerable activity in the Royal Household addressing and bringing voicemail interception claims’.
He went on to say, ‘The terms of the secret agreement contended for by the Duke are surprising in themselves. The pleaded case is that it was agreed between NGN and the Palace on his behalf that the Duke and his brother among others would bring claims against the Defendant only at the conclusion of the MTVIL and at that stage the claims would be admitted or settled with an apology. This, if correct, would require the Princes and others to issue a claim, at a later stage, thereby giving publicity to the complaint, which the Palace did not want, rather than seek to resolve it in private. Further, the terms pleaded committed NGN to admit the claims brought later or settle them, without knowing in what terms the claims would be brought. This seems inherently unlikely, unless the secret agreement related only to the Goodman hacking, but that is not the Duke’s pleaded case’.
Fancourt J continued, ‘The Duke is unable to identify between whom the secret agreement was made, or even who it was who told him about it‘.
‘There must be credible evidence that carries some degree of conviction that the agreement was made in the terms pleaded, in or about 2012 (in any event no later than the Applicable Date), and that the Duke knew about it and relied on it then by not bringing his claim’.
‘In my judgment it is implausible that the Duke did not remember before March 2023 if a secret agreement was made, as he now alleges, that made it unconscionable for NGN to rely on a limitation defence against him at all…It is not, in my view, realistically possible that the Duke confused assurances about which he learnt in 2018 with a secret agreement on which he positively relied in 2012 by not bringing a claim. Nor does he say that he did confuse them: there is simply no explanation’.
‘But the problem with the Duke’s pleaded case is that there is nothing other than his rather vague and limited evidence to support it: there is no documentary evidence that supports a case about 2012 and his reliance; there is no evidence from those acting for the Royal Family at the time who might have been expected to support his account, if it is correct; and his own previously pleaded case and evidence in other cases are inconsistent with it’.
‘I am satisfied that there is no reasonable prospect of the Duke proving at trial that he did not know and could not with reasonable diligence have discovered facts that would show that he had a worthwhile claim for voicemail interception in relation to each of the News of the World and The Sun. He already knew that in relation to the News of the World, and he could easily have found out by making basic inquiries that he was likely to have a similar claim in relation to articles published by The Sun’.
As with our late Queen Elizabeth’s response “while some recollections may vary” in answer to Harry and Meghan’s assertions of challenging years and racial comments at the Palace, it seems that Mr Justice Fancourt was also trying his best to be diplomatic.
But the problem now for Harry is that Mr Justice Fancourt’s judgment has effectively declared Harry’s evidence as ‘implausible’, stopping short of calling him a fantasist. The Palace’s policy not to comment, and certainly not to litigate, seems exceedingly wise when viewed in the light of this event.
Now, there remains a question for the King. What will he do to stop his errant son?
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