HRH the Duchess of Sussex v Associated Newspapers Ltd

In deciding whether to adjourn a trial, the court must identify the possible consequences of delay and assess the risk of prejudice to the due administration of justice. Delay is undesirable, but it does not justify refusal without an identified and sufficiently weighty adverse consequence. Witness-related prejudice should be assessed objectively, including the witness’s likely future availability and practical alternatives such as an advance deposition or video-link evidence.

The claimant applied to vacate a trial listed for 11 January 2021 and adjourn it to autumn 2021. She initially relied on several grounds but pursued only a confidential ground at the hearing. The defendant did not oppose the adjournment on that ground. The application raised concerns about delay and the possible effect on the evidence of the defendant’s potential witness, Thomas Markle, who was elderly, in poor health and preferred an earlier trial. The court considered whether those matters created sufficient prejudice to justify refusing the adjournment.

1. Application granted. The trial date was vacated and the trial was adjourned to autumn 2021 on the confidential ground.
2. Delay is always undesirable, but the court must identify possible consequences and assess the risk that they will adversely affect the due administration of justice. No countervailing factor was sufficiently weighty to justify refusal. [2020] EWHC 3093 (Ch) at [9]–[10].
3. The alleged prejudice concerning Mr Markle’s evidence was insufficient. His evidence was not an essential component of the defence case; there was no medical evidence that delay would make him unavailable; and the defendant already held a signed statement from him. An advance deposition or independently recorded statement, or evidence by video-link, were available alternatives. [2020] EWHC 3093 (Ch) at [11]–[14].
4. Mr Markle’s subjective thoughts and feelings about delay should not guide the decision, particularly because he had not been told the confidential basis of the application. [2020] EWHC 3093 (Ch) at [15].
5. The court noted that the defendant’s own motives and state of mind were irrelevant to liability and damages for misuse of private information, whose tests were objective. The possible relevance of Mr Markle’s Article 10 rights to the Article 8/Article 10 balance required further consideration at a later stage. [2020] EWHC 3093 (Ch) at [12]–[13].