THE HONOURABLE MR JUSTICE NICKLIN
Between:
| The Duke of Sussex | Claimant | |
| – and – | ||
| Associated Newspapers Limited | Defendant |
A post concerning the defamation case brought by Harry Sussex against the Mail on Sunday
If ever there was a mindless death-wish, it is that of pursuing a dodgy defamation claim. That isn’t to say the Duke of Sussex‘ notorious case against the Mail on Sunday is itself ‘dodgy’ – its just that you need big pockets, a strong head, a healthy heart, and lots of time on your hands before you embark on such proceedings. Many have failed; and following failure comes the often-fatal sting of costs, and the devastation of public profile.
Chronology
- 13 January 2020: Harry has audience with the late Queen, Charles and William at Sandringham.
- 28 February 2020: official committee refuses Harry’s request for continued Royal protection.
- 9 April 2021: Prince Philip dies and Harry returns for a visit.
- 1July 2021: unveiling of Princess Diana’s memorial by William and Harry.
- 20 September 20021: Harry issues his application for judicial review (JR) of refusal of security.
- 15 January 2022: Mail on Sunday publish first article suggesting that Harry wants the public to pay.
- 19/20 February 2022: Mail on Sunday publish article claiming that Harry had sought to distort reality.
- 23 February 2023: Harry issues his action against Associated Newspapers Ltd for defamation.
Harry’s claim is that he was defamed in an article published on 19/20 February 2022 by the Mail on Sunday in which they suggested that Harry had distorted reality – by saying that he had always offered to pay for personal security whilst in the UK. The paper’s case was that Harry’s challenge to the government by judicial review (JR) had been a demand for the return of tax-payer funded security. Harry’s case was that he had always made it clear that he was prepared to foot the bill. Was he right? Had Harry sought to distort reality, or was he defamed by the suggestion? That, in a simplified nutshell, is the essence of the conflict.
You may recall that, on his abdication of Royal duties in January 2020, Harry had raised the question of whether he could keep his Royal protection provided by special officers of the Metropolitan Police. We are told that on 13 January 2020 at Sandringham, Harry had a private meeting with the late Queen, his father the King, and his brother William. Of course we don’t know what was discussed there – and may never know – but we do know, despite the concerns of our late Queen, that his request for continued Royal protection was turned down on 28 February by the Executive Committee for the Protection of Royalty and Public Figures (known as RAVEC), the official body charged with making such decisions.
After his return following Prince Philip’s death in April 2021, and for the unveiling of Diana’s monument in June 2021, Harry instructed his lawyers to challenge the decision to remove his Royal protection. His claim for judicial review of the committee’s decision was issued on 20 September 2021. It is said that in his application to the court Harry made no mention of his willingness to pay.
His complaint by way of judicial review was threefold: the official committee had applied its policies in a rigid and inflexible way; they had failed to take into account relevant circumstances; and they had acted unreasonably. One of his main issues was that the committee had not taken sufficient account of the outcome of the Sandringham meeting where it is said, the late Queen was sympathetic to his concerns.
To complicate matters, just before publication of the Mail on Sunday‘s article on 15 January 2022, Harry’s team issued a ‘press statement and briefing’ declaring his willingness to pay for his security rather than it falling as a burden on the public purse; and on the day of publication Omid Scobie tweeted the ‘breaking’ news that Harry had been effectively prevented by the committee’s decision from paying.
And this is the battleground. What happened at Sandringham? Were the discussions there really relevant? Before issuing his court case did Harry make an offer to pay – if so, to when and to whom? Should the Mail on Sunday have known about this? Is their suggestion that he wanted the public to foot the bill, correct? What about the fact that there does not appear to be any process for payment by Harry?
Mr Justice Nicklin appears to be in charge of the defamation case. Having heard the case on 9 June 2022 and again on 17 March 2023, his second judgment delivered on 8 December 2023 makes interesting reading.
“… it is not fanciful that the Mail on Sunday will be successful… in demonstrating that the public statements issued on the Duke of Sussex’s behalf sought to promote the JR claim as his battle against the Government’s (perverse) decision to refuse to allow him to pay for his own security.
There is a real prospect that the Mail on Sunday will succeed in demonstrating that this was a misleading description of the issues in the JR claim, arguably promoted because it was hoped to show the Duke of Sussex’s court claim in a positive light, whereas a portrayal of the JR claim as the Duke of Sussex trying to force the Government to reinstate his (tax-payer funded) State security risked his appearing in a negative light.
I anticipate that, at trial, the Mail on Sunday may well submit that this was a masterclass in the art of “spinning”. And, the Mail on Sunday argues, it was successful in misleading and/or confusing the public. The resulting media coverage relied upon by the Mail on Sunday did, indeed, characterise the JR claim as the Duke of Sussex’s challenge to the Government’s refusal of his offer to pay.
If the Mail on Sunday does establish these facts, then I consider that it has a real prospect of succeeding in demonstrating also that an honest person could have held the opinion that the Duke of Sussex was responsible for attempting to mislead and confuse the public as to the true position (and that this was ironic given that he now held a public role in tackling “misinformation”).
As I have noted above in the context of my decision as to the meaning of the Article, my immediate impression was that it was alleging that the Duke of Sussex was guilty of “spinning” facts to his advantage; as I suggested in that judgment “spinning” can be defined as “the presentation of true facts (and often the omission of other facts) in a way that is designed to give a positive message but which, overall, is apt to mislead”.
Having now seen the sequence of events, in my judgment, the Mail on Sunday does have a real prospect of demonstrating that an honest person could have held the view that this was precisely what was being done on the Duke of Sussex’s behalf.
For all those reasons, in my judgment, the Mail on Sunday‘s honest opinion defence has a real prospect of success. “
Of course Mr Justice Nicklin is not deciding the issues at this stage, simply ruling on whether the Mail on Sunday has shown an arguable defence. Yet, reading his judgment, the future certainly does not bode well for Harry.
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