Duchess of Sussex v Associated Newspapers Ltd

Summary judgment may be entered where subsequent evidence removes any realistic prospect that an issue will require trial. In fixing consequential relief, delivery-up and destruction orders must be proportionate to the legitimate aim, clear, practicable, and framed so as to protect legal privilege and access to legal advice and proceedings. A party ordered to account for profits must provide sufficiently specific revenue, expense, and documentary information to enable the claimant to formulate a meaningful case. Indemnity costs require conduct outside the norm; an evidentially thin but honestly advanced case may not meet that standard, whereas unreasonable persistence after the case has plainly collapsed may do so.

The claimant sued the owners of the Mail on Sunday and MailOnline for misuse of private information, breach of data protection rights, and copyright infringement arising from publication of extracts from a private letter. Earlier, the court had granted summary judgment on liability for misuse of private information and on subsistence and infringement of copyright, while directing a trial on whether another person might share authorship or ownership of copyright in an electronic draft.

After the putative co-author and the Crown expressly disclaimed any copyright claim, the claimant sought final summary judgment and consequential orders. The court also had to give directions for an account of profits, determine the timing of issues concerning financial remedies for misuse of private information, and decide costs, including whether indemnity costs were justified.

1. Final copyright judgment. The new evidence was unequivocal and definitive. The defendant’s ownership case had become a speculative hypothesis contradicted by the relevant individuals, with no realistic prospect of success at trial. Unqualified summary judgment on liability for copyright infringement was therefore entered for the claimant.
2. Consequential relief. Delivery-up and destruction are discretionary remedies. Any order must be proportionate to the legitimate aim of removing the means of infringement and the scale of the risk. It must be clear, practicable, and sufficiently tailored to avoid infringing legal privilege or creating a significant obstacle to legal advice or litigation. The agreed order required delivery of hard and soft copies and complete copies of the draft or letter to the defendant’s solicitors, subject to carve-outs for archiving, privilege, and litigation use.
3. Account of profits. The claimant was entitled to an account of profits for copyright infringement. The defendant had to provide both a general and publication-specific account of revenues and expenses, together with sufficient documents to evidence them. General business information alone would not enable meaningful Points of Claim. The defendant had to go first because it controlled the relevant information.
4. Costs. Applying Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hammer Aspden & Johnson (A Firm) [2002] EWCA Civ 879 and the clarification in Esure Services v Quarcoo [2009] EWCA Civ 595, the court refused indemnity costs for the original ownership case. The defendant’s conduct was not shown to be dishonest or outside the norm when the case was pleaded and argued. However, its refusal for nearly three weeks to accept that the later evidence defeated the ownership case justified indemnity costs for the second summary judgment application. Other consequential costs and ownership costs were awarded on the standard basis, and the claimant recovered 60% of the remaining costs.

This was a first-instance judgment. It records earlier judgments in the same litigation, including the summary judgment on liability, but no appeal decision is determined in this judgment.