HRH The Duke of Sussex v News Group Newspapers Limited

Amendments to a statement of case must remain within the permission previously granted and must not introduce new causes of action or renewed objections. A claimant may plead an inferential case where the relevant facts are concealed or unknown, provided the known factual foundation, the private or confidential information relied on, and the limits of the alleged wrongdoing are identified. The claimant need not plead the precise method or individual wrongdoer where that information is unavailable. However, a claim cannot proceed on wholly unidentifiable causes of action, and materially different facts cannot be introduced at trial. Allegations lacking particulars, including generalised bugging claims, may be refused. Amendments may be permitted where they clarify that alleged wrongdoing was by private investigators rather than introduce a new claim against journalists.

The judgment concerned disputes over the Duke’s further amended Particulars of Claim in long-running misuse of private information and breach of confidence proceedings against News Group Newspapers Limited. Earlier orders required the Duke to disentangle remaining non-voicemail-interception claims from former mobile voicemail interception allegations and permitted certain voluntary amendments in principle, subject to adequate pleading.

The parties exchanged schedules and written submissions identifying 49 disputed items. The court determined whether the draft amendments complied with the earlier orders, adequately particularised inferential claims based on alleged private-investigator activity, and introduced impermissibly new or unidentifiable causes of action. A separate issue concerned the deemed issue date for limitation purposes.

1. Scope of the exercise. The further draft was limited to consequential amendments required by the earlier order and voluntary amendments already permitted in principle. It was not a further opportunity to introduce new causes of action or raise fresh objections to previously pleaded material.
2. Inferential pleading. Where relevant information was concealed and unavailable to the claimant, it was permissible to plead the best particulars available and invite inferences from identified facts. The claimant was not required to identify precisely who performed the alleged unlawful act or the exact method used. The pleaded case nevertheless had to identify the private or confidential information relied on and the factual foundation for each individual cause of action. A different factual case could not be advanced at trial.
3. Limits on pleading. A claim could not be brought in respect of unidentifiable causes of action. Generalised allegations of bugging, listening devices or tracking devices were refused where no particulars were provided. Breach of confidence claims had to identify the confidential information; absent pleaded facts establishing confidentiality, the information would be treated as self-evidently confidential and unpleaded facts could not be relied on at trial.
4. Characterisation of amendments. Allegations concerning computer hacking or payments were permissible where clearly pleaded as acts of identified private investigators and supported by an evidential foundation. They were not permissible where they instead alleged new wrongdoing by journalists or equated employees receiving payments with private investigators.
5. Permission was granted for the draft amendments except for the specified parts of rows 10, 30, 33, 39, 41, 42, 43, 44, 46, 47 and 48, together with the further generalised bugging allegations. The issue concerning the deemed limitation date was left for consideration before or at trial.