HRH The Duchess of Sussex v Associated Newspapers Ltd (Rev 1)

Liability for misuse of private information is determined objectively. Dishonesty, malice and bad faith on the publisher’s part are irrelevant both to whether the claimant had a reasonable expectation of privacy and to the balance between privacy and freedom of expression.

Allegations of dishonesty must be explicit, clear and supported by full particulars identifying the alleged wrongdoer and the facts supporting the inference. Pleadings may also be struck out where peripheral allegations would generate investigation disproportionate to their legitimate value.

Aggravated damages cannot compensate for separate conduct which was not sued upon. The aggravating conduct must have a genuine and close relationship with the tort.

The claimant brought claims for misuse of private information, infringement of data-protection rights and copyright infringement arising from five articles which disclosed extracts from a letter to her father. The defendant applied before trial to strike out allegations that it had acted dishonestly or maliciously, had deliberately stirred up conflict between the claimant and her father, and had pursued an agenda of intrusive or offensive reporting.

The application principally concerned the legal relevance, adequacy and proportionality of those allegations to the privacy claim and the claim for aggravated damages. It was not concerned with the merits of the copyright claim or the ultimate merits of the privacy and data-protection claims.

1. The application was granted. All passages attacked in the application notice, related wording in the Particulars of Claim and two passages in the Reply were struck out. Some allegations could be revived through a properly formulated application to amend.

2. The tort of misuse of private information involves two objective questions: whether the claimant enjoyed a reasonable expectation of privacy and whether, after a proportionality analysis, freedom of expression must yield to privacy. Dishonesty, malice and bad faith are not ingredients or factors in either inquiry. A publisher may therefore be liable despite acting in good faith or believing publication to be in the public interest. Campbell v MGN Ltd [2002] EWCA Civ 1373 and Murray v Express Newspapers plc [2008] EWCA Civ 446 were applied.

3. The dishonesty and malicious-intent allegations were irrelevant to liability and likely to obstruct the just disposal of the proceedings by prompting investigation of matters incapable of affecting liability. They were also inadequately pleaded. A charge of dishonesty must be explicit, clear and distinct. The pleading must identify the individuals alleged to have been dishonest and the facts providing a credible basis for the inference. A corporation’s dishonesty cannot be established by combining one employee’s conduct with another’s state of mind.

4. The allegations that the defendant stirred up conflict were struck out because they were irrelevant in the Particulars of Claim, impermissibly vague and disproportionate. Misconduct must be particularised before disclosure is sought. Neither a skeleton argument nor pleading by examples can cure a deficient statement of case. Similar allegations in the Reply were not shown to be necessarily irrelevant as rebuttal, but lacked the required particulars.

5. The alleged reporting agenda was struck out. Determining the character, falsity, authorship, intention and possible editorial connection of numerous other articles would require extensive satellite investigation bearing no reasonable relationship to a limited claim for additional compensation.

6. Aggravated damages cannot provide compensation for separate torts which have not been sued upon. Aggravating conduct must have a genuine and close relationship with the pleaded tort. Related follow-up conduct may qualify where it rubs salt into the wound, but the disparate articles relied upon here lacked the necessary connection.

At first instance, the High Court determined the defendant’s pre-trial strike-out application. No earlier decision in this litigation is stated in the judgment.