HRH The Duke of Sussex v News Group Newspapers Limited

Specific disclosure may be ordered where the existing disclosure exercise is materially inadequate and further searches are necessary for a fair trial. In a limitation dispute concerning the claimant’s actual or constructive knowledge, relevance is not confined to documents concerning the particular unlawful conduct still pleaded, or to documents created before the limitation date. Later documents may assist in establishing what the claimant knew or could reasonably have discovered earlier. Searches should be carried out by solicitors rather than left to the claimant personally where the issue is fact-sensitive and legally subtle. The court must consider materiality, the likelihood that relevant documents exist, and proportionality. Orders may properly require searches of specified electronic repositories, attempts to retrieve deleted messages, and a witness statement explaining destruction of potentially relevant documents.

The defendant applied for specific disclosure concerning the claimant’s actual or constructive knowledge, before 27 September 2013, of possible unlawful information gathering other than voicemail interception. Summary judgment had previously been given to the defendant on the voicemail-interception aspects of the claim, while the remaining limitation issues were left for trial.

The defendant contended that the claimant’s disclosure was inadequate and sought searches of electronic devices and accounts, together with steps concerning documents held by the claimant’s former solicitors and the Royal Household. The claimant resisted the application and relied on the scope, necessity and proportionality of the requests. The central issue was whether further disclosure was required to ensure a fair trial of the Knowledge Issue.

1. Application granted in part. The claimant’s existing disclosure was inadequate because searches had been artificially restricted by date, subject matter and source. The court therefore considered that further searches and related steps were necessary for the fair trial of the Knowledge Issue.
2. Section 32 of the Limitation Act 1980 makes relevant not only what the claimant actually knew, but also what he could have discovered by reasonable diligence. The disclosure inquiry was consequently broad. Documents concerning other forms of unlawful information gathering, including matters no longer directly in issue, could assist in determining the claimant’s knowledge.
3. Documents created after 27 September 2013 were not automatically irrelevant. The court limited the extended search of the claimant’s laptop and messaging repositories to documents created up to January 2023, the date of publication of Spare, and required the agreed search terms to be used.
4. Further searches were ordered for the claimant’s current laptop, cloud storage of text and WhatsApp messages, and the Signal platform. The claimant was also required to provide a witness statement explaining the deletion of Signal messages and destruction of drafts or other potentially relevant documents, and to describe any attempts at retrieval.
5. Searches of the two business-related hard drives supplied by the Royal Household were refused as disproportionate. The court also ordered letters to Harbottle & Lewis and the Royal Household seeking the claimant’s own documents, because those requests might identify relevant material and avoid further non-party disclosure proceedings.

No appeal is described in the judgment. The decision was made at first instance on an application for specific disclosure.