Introduction
The case of Duke of Sussex v News Group Newspapers Limited1 has frequently captured the headlines, marked by sensationalised narratives that underscore the tumultuous relationship between the claimant (the Duke of Sussex), his wife (the Duchess of Sussex) and the British media.2 However, what truly distinguishes this saga is the judge’s exercise of discretion in dismissing the Duke of Sussex’s application to amend his account of events during the proceedings.
This case note aims to determine whether the judge was correct in his refusal to accept the application to amend. With reference to the (a) timing, (b) rationale and (c) substance of the application, it argues that the Duke’s application to amend his statements of case was viable and should have been permitted by the court.
This case note will begin by briefly explaining statements of case, why applications to amend are made and the legal framework as to how. It will then summarise the facts of the case and the judge’s verdict, before assessing his reasons against granting the Duke’s late application to amend his statements of case. The case note will particularly question whether the application was too late and whether the Duke had merit to not apply to amend sooner in the proceedings. Looking to unpack this further, it will demonstrate that it is believable to assume that there was a secret agreement in place between the defendant and the wider Royal Institution. For these reasons, this case note will argue that the court should have accepted the Duke’s application.
Statements of case and applications to amend
Given that statements of case and applications to amend were a central theme in the case, this section of the case note attempts to explain them to offer the reader some valuable exposition.
A party to civil proceedings presents statements of case to set out the case they expect to prove at trial. This enables the opposing party to see their position on the issues in dispute, thus informing their own case. By presenting the whole picture, statements of case also help the judge make an informed decision at the end of the trial. For these reasons, it is essential that statements of case are clear, concise, and non-contradictory.3
Applications to amend are made when parties wish to modify the substance of their statements of case. They can be made to amend an existing claim or bring a new claim to trial. They can also be made to add or substitute a party to the proceedings.4
These applications are governed by Part 17 of the Civil Procedure Rules (CPR). Rule 17.1 makes clear that a party can only amend their statement of case with the other parties’ written consent or with the permission of the court after it has been served.5 Nevertheless, Rule 17.2 goes on to state that the court has the power to disallow amendments that have been made when the permission to amend was not required.6 When permission from the court is required and granted, the court may give directions as to the particulars of the amendments according to Rule 17.3.7
As there is no statistical information available governing how often applications to amend statements of case arise, it is safe to speculate that they materialise at different points throughout civil proceedings. After initial statements of case are pleaded at the beginning of the lawsuit, amendments may be sought if new information comes to light. This can be shortly after filing or as the discovery process unfolds. It is even possible that applications are encouraged by lawyers to change legal strategy or after a court order claims that the existing statements of case are insufficient, unclear, or inaccurate by virtue of mistake.
In terms of granting an application, this lies with the discretion of the resident judge. To make this decision, they are likely to balance how important or compelling the amendment is with the risk of unduly delaying proceedings and causing significant prejudice to the other party.
The case
The Duke of Sussex alleged that he was targeted by journalists and private investigators working for News Group Newspapers Limited, the current publisher of The Sun and, formerly, the publisher of the News of the World.8 For this reason, he filed a suit for the tortious misuse of private information, encompassing unlawful acts of phone hacking, blagging of private information, and using private investigations to obtain private information.9 This formed part of the wider Mobile Telephone Voicemail Interception Litigation (“MTVIL”) which saw several high-profile individuals allege that their voicemail messages were intercepted or hacked by several British newspapers.10
On 7th December 2022, News Group Newspapers Limited filed an application for summary judgment or alternatively, to strike out the Duke’s claim on a defence of limitation.11 Pursuant to section 2 of the Limitation Act 1980, the media conglomerate argued that the Duke has brought an action outside the primary limitation period of six years.12
Resolution to the claim was delayed because the Duke of Sussex wished to amend his earlier Reply. In this “Amendment Application”, he described that he was informed of a “secret agreement” between the Palace and senior executives of News Group Newspapers Limited’s parent company in 2012.13 The agreement allegedly stipulated that senior members of the Royal Family would not bring claims against the media company during the MTVIL; they agreed that, once the trial was concluded, apologies would be distributed to the affected Royals and the necessary compensation would be paid behind closed doors.14 This alleged secret agreement explains why the Duke did not bring his claim against News Group Newspapers Limited sooner, arguing against the limitation defence.
It is also important to note that the Duke’s initial Reply stated that he was unaware that he could make a claim of phone hacking until 2018. He then appealed to this to prevent the statute of limitations working against him. Pursuant to Section 32(1) of the Limitation Act 1980, the Duke contended that facts relevant to his right of action were deliberately concealed from him by News Group Newspapers Limited. Therefore, the period of limitation should not run until he learnt about the hacking in 2018.15
Nevertheless, the Duke followed through, contending the existence of the secret agreement to stop the media company’s limitation defence in an application to strike out the claim. It was clear that the Duke wanted the facts to be considered at trial. However, given that the new admission would lead to pleading alternative and inconsistent factual cases, he later issued a second application to remove the factual inconsistencies from his first Reply and effectively start his case over in light of the secret agreement.16
If the court decided to grant the Duke’s application, News Group Newspapers Limited’s application for summary judgement would fail and facts relating to the Duke’s state of knowledge could be addressed at trial.17
However, Fancourt J ultimately ruled in the favour of News Group Newspapers Limited. Applying the test for giving permission to amend, considered in Kawasaki Kisen Kaisha Ltd v James Kemball Ltd,18 he decided that the Duke’s submission was not serious enough to make it possible for the case to have a real prospect of success.19
He did not think that there was a good explanation for the Duke’s factual account changing20 and did not find sufficient evidence to infer the existence of the secret agreement.21
Discussion
To determine whether the judge erred in his judgement, attention will be drawn to the timing of the application, whether the Duke could justify the timing, and whether a secret agreement can be inferred from the evidence.
Was the application late?
According to the judgement:
The first question to determine is whether the Duke should be given permission to amend his Reply to plead an estoppel in the way that he does. The Amendment application is made at a late stage of the proceedings, more than two years after the Reply and 18 months after the RRFI confirmed that the Duke’s case on limitation was fully pleaded in his Reply, as it stood. It was made less than 8 months before the likely trial date and, as a result of its lateness as a response to the NGN’s Application, was only able to be heard some 6 months before the trial date.22
It is valid to argue that the Duke’s application was made at a late stage of the proceedings. He initially replied to the Defence on 24th March 202123 and then replied to their Request for Further Information on 22nd November of the same year,24 to then make the Amendment Application two years later. It is natural that the court wanted the Duke to have referenced the existence of the secret agreement at an earlier instance. Yet, as mentioned earlier, it is also valid for applications to amend statements of case to appear at different stages of the proceedings and the Duke’s particular application could be driven from a change in legal strategy.
It is also worth mentioning that a trial date for this proceeding was not fixed at the time of the Amended Application. With reference to Quah Su-Ling v Goldman Sachs International,25 Carr J stated that even very late applications to amend can be granted when a trial date has been set already.26 The claimant here submitted an application to amend three weeks prior to the trial and the court still took the time to decide whether the proposed amendment was sufficiently compelling to justify granting the requisite permission.27 Although the weight of the burden imposed on the applying claimant should somewhat correlate to when the application materialises during the proceeding, it needs to be underlined that the substance of the application is more important than the timeline.
The trial date for the proceedings was likely to occur in January 2024; however, it was not fixed.28 Not only should this work in the Duke’s favour, but the Amendment Application was filed on 20th March 202329 and, therefore, approximately eight months and not three weeks prior to the likely trial date. For this reason, it is argued that the judge’s overt emphasis on the timeline of events is unjustified.
Is there merit to why the Duke did not make an application sooner?
According to the judgement:
No proper explanation has been given in the evidence for the lateness of the Amendment Application.30
This case note disagrees with the judgement here, taking the position that the explanation lies in the Duke’s testimony. The admission that the Duke was hesitant to expose members of the Royal Family to cross-examination by mentioning the secret agreement should not be ignored.31 As noted by Syed, the Royal Family deliberately avoid court appearances in fear that an opposing counsel’s questions can assassinate their character and tarnish their reputation.32 The importance of the Royal Family’s reputation to British society cannot go unnoticed when it has a tangible correlation to the status of the British economy. Their contributions of £550m in tourism and £150m through trade helps to substantiates the Duke’s rationale that putting the Royal Family in court may be much more detrimental than anticipated.33 Given that the Duke still wished to make an Amendment Application, in spite of this, proves that it ‘must carry some degree of conviction.’34
Another reason why the Duke waited to make the application was because he had to wait until the MTVIL had concluded. After it became evident that there was no fixed cut-off date to the litigation and he had no luck corresponding with News Group Newspapers Limited,35 the Duke decided to inform the court of the secret agreement. Without a better option, the Duke filed an application to amend his Reply.
It is also important to note that Fancourt J was the same judge who rejected the media company’s application to impose a final cut-off date to the MTVIL.36 In making this decision, he reasoned that there is a continuous stream of new claims that can be part-owed to the management of existing ones.37 This conclusion is logical because the court would not want to penalise claimants because they may have made an existing claim before a supposed cut-off date and then cannot bring any viable claims that might arise from it. This would impede the court’s mission to deliver justice and might have allowed News Group Newspapers Limited to avoid liability. However, as much as Fancourt J had his reasons, they come with a detrimental consequence. If he had granted a final cut-off date to the defendant, it could be asked whether the Duke would have had to make the Amendment Application in the first place, because an end would be in sight. The same discretionary exercise that made the claimant wait longer for resolution has cost him again. Arguments like this could contemplate whether applications to amend statements of case should be at the whim of the resident judge and not an automated process reviewable by a panel of legal experts.
Evidence to support there being a secret agreement in place
According to the judgement:
The documents in evidence from 2012 do not support a case that a secret agreement was made at that time.38
The case note again takes a different position to the judgement here. Firstly, documents in evidence prove that a secret agreement is inferable. Looking once again at the criteria for granting the Duke’s Amendment Application, inferring that a secret agreement can exist means that the claim is not fanciful nor entirely without substance.39 Pleading that the Duke’s brother, Prince William, agreed to a private settlement with News Group Newspapers Limited to avoid litigation in a similar case40 is testament that a secret agreement might exist between the Monarchy and the defendant. Settlement agreements can be disclosed, no matter how confidential, and this could help the Duke’s case.41 To this, Fancourt J wanted a credible reason why such documents can exist42 and then be disclosed. If both News Group Newspapers and the Royal Family are keen to avoid litigation for different reasons, there is a chance that settlement agreements exist to protect their interests. The case note takes the position that the judge placed too much emphasis on the prospect being real and set an unnecessarily high bar against accepting the Duke’s application. As stated earlier, the Duke’s state of knowledge could have been addressed at trial in light of these developments, and yet, Fancourt J has denied him the opportunity.
To this end, it could be argued that blame should be shifted to the legislature. If whether something has a ‘real’ chance of success is quite open to interpretation, it could be asked whether the CPR should be amended to restrict the level of discretion granted to judges. This case note disagrees with that notion, for the balancing test is necessary given the factual nuances of each case. It is for this reason the case note also agrees with Zuckerman who argues that a human override would still be necessary even if artificial intelligence was able to use the CPR with the requisite discretion.43Judges can ensure that decisions emerge within the limits of established legal principles and check that the verdict reflects the nuance of the particular scenario.
Instead, this case note takes issue with case precedent in this area. Per Kawasaki Kisen Kaisha Ltd v James Kemball Ltd, the claimant bears the burden to establish that the case as a real as opposed to a fanciful prospect of success.44 By allowing the judge to draw their own line between real and fanciful, there can be no indication to the claimant as to whether their application will be granted. Contrast this with The New York Civil Practice Law and Rules (CPLR) where the focus of Rule 3025(b) is on ensuring that the amendment is not clearly insufficient or devoid of merit.45 This is substantiated in case law, where Siddiqui v. Smith confirms that “no evidentiary showing of merit is required” under the Rule.46 By emphasising the absence of the negative over the confirmation of the positive, the expectation is for evidence to not have such little impact that admitting it would cause undue delay to the trial and prejudice the opposing party. The evidentiary strength of the amendment can be determined at trial but the Duke would have had a chance to make the case he wanted. Considering the ramifications of putting a member of the Royal Family on the stand, this is especially important.
Secondly, it has been strongly argued outside a court of law that there is a tangible relationship between the Monarchy and the British media. Admissions of this alone should make it inferable that a secret agreement might exist between the Royal Family and a media company like News Group Newspapers Limited. Firstly, Buckingham Palace commissioned a documentary featured on the BBC and ITV in 1969. This documentary, titled ‘Royal Family’, allowed the public to be a fly-on-the-wall to intimate moments of royal life including family mealtimes and a family barbecue.47Here, one can speculate that the Royal Family wanted to look more approachable to the public and they used the media to implement this image. Secondly, during the Duke and Duchess of Sussex’s interview with Oprah in March 2021, the Duke had already mentioned there being an “invisible contract” between the monarchy and the media.48 Given that the judge did consult the Duke’s autobiography Spare49 to see whether there had been previous mention of the secret agreement, it could be asked why this interview was not also looked at. Thirdly, Dr Laura Clancy confirmed the existence of a “pressure cooker agreement” in which paparazzi agreed to leave Prince Harry and Prince William alone during their education in exchange for staged photograph opportunities.50 Look no further than Prince William’s 18th birthday celebration at Eton College for an example. These three contemporary examples alone clearly suggest that there is a symbiotic relationship between the Monarchy and the media, utilised for both parties’ benefit.
This relationship is not new. Looking back to the early 1930s, King George V was the first British sovereign to use radio to broadcast Christmas greetings as a strategy to reinforce his values to the public.51 The Monarchy saw the value in the media then and it still does — that is, amidst the Duke’s claim and the wider MTVIL. Therefore, a secret agreement between the two is demonstrable.
Thirdly, after bringing the claim against the defendant, the Duke testified that he was told to drop the actions for the Royal Family’s fear that it could adversely affect the whole family.52 Admittedly speculative, this fear could be driven by the fact that they would have then breached the secret agreement. To that end, it could be argued that the relationship between the Monarchy and the media can even be parasitic in nature.
Conclusion
While the Duke’s Amendment Application was made at a later stage than the court desired, there are valid reasons for the timing of the application, and the evidence suggests that the concept of a secret agreement between the Royal Family and News Group Newspapers Limited has substance. Having consulted outside evidence in this case, Fancourt J should have considered the broader implications for the Royal Family’s reputation and the symbiotic relationship between the Monarchy and the media to grant the Duke the opportunity to amend statements of his case.
[1] Duke of Sussex v News Group Newspapers Limited [2023] EWHC 1944 (Ch).
[2] Lili North and Mindaugas Balčiauskas, ‘15 Headlines Show How Differently the British Press Treat Meghan Markle Vs Kate Middleton’ (Bored Panda, 14 January 2020) < https://www.boredpanda.com/uk-media-double-standarts-royal-meghan-markle-kate-middleton/?utm_source=google&utm_medium=organic&utm_campaign=organic> accessed 24 September 2023; Abigail O’Leary, ‘Harry and Meghan aides ‘tried to gag staff and pupils’ at school in £80m Netflix show’ (Mirror, 24 September 2023) <https://www.mirror.co.uk/3am/us-celebrity-news/harry-meghan-aides-tried-gag-31014286#google_vignette> accessed 25 September 2023.
[3] Nicola Laver, ‘What is a statement of case?’ (Claims) <https://www.claims.co.uk/knowledge-base/preparing-for-trial/statements-of-case> accessed 5 September 2023.
[4] ‘Amending statements of case’ (The Law Society Gazette, 21 May 2001) <https://www.lawgazette.co.uk/news/amending-statements-of-case/33543.article#> accessed 5 September 2023.
[5] CPR 17.1.
[6] CPR 17.2.
[7] CPR 17.3.
[8] ‘Prince Harry’s lawsuit against Sun publisher can go to trial, judge rules’ (The Guardian, 27 July 2023) <https://www.theguardian.com/uk-news/2023/jul/27/prince-harrys-lawsuit-against-sun-publisher-can-go-trial-judge-rules> accessed 25 November 2023.
[9] Duke of Sussex (n 1) [17].
[10] Julia Kollewe, ‘Sun publisher sets aside further £128m to cover phone-hacking cases’ (The Guardian, 7 April 2023) <https://www.theguardian.com/media/2023/apr/07/sun-publisher-sets-aside-further-128m-to-cover-phone-hacking-cases> accessed 5 September 2023.
[11] Duke of Sussex (n 1) [1]-[2].
[12] Limitation Act 1980, s 2.
[13] Duke of Sussex (n 1) [5].
[14] Duke of Sussex (n 1) [4].
[15] Duke of Sussex (n 1) [5].
[16] Duke of Sussex (n 1) [14].
[17] Duke of Sussex (n 1) [15].
[18] Kawasaki Kisen Kaisha Limited v James Kemball Limited [2021] EWCA Civ 33 [18].
[19] Duke of Sussex (n 1) [91].
[20] Duke of Sussex (n 1) [70].
[21] Duke of Sussex (n 1) [76].
[22] Duke of Sussex (n 1) [58].
[23] Duke of Sussex (n 1) [29].
[24] Duke of Sussex (n 1) [28].
[25] Quah Su-Ling v Goldman Sachs International [2015] EWHC 759 (Comm).
[26] Simon Hill, ‘The Jeopardy of a Very Late Application to Amend a Statement of Case’ (33 Bedford Row, 4 November 2017) <https://www.33bedfordrow.co.uk/insights/articles/the-jeopardy-of-a-very-late-application-to-amend-a-statement-of-case#:~:text=The%20risk%20to%20a%20trial,trial%20date%20to%20be%20lost.> accessed 5 September 2023.
[27] ibid.
[28] Duke of Sussex (n 1) [45].
[29] Duke of Sussex (n 1) [4].
[30] Duke of Sussex (n 1) [69].
[31] Duke of Sussex (n 1) [36].
[32] Armani Syed, ‘Prince Harry Is The First Royal to Testify in a Century. That’s Making Buckingham Palace Nervous’ (TIME, 6 June 2023). <https://time.com/6284792/prince-harry-testify-court-phone-hacking-scandal/> accessed 7 September 2023.
[33] Brand Finance, ‘Monarchy 2017: The annual report on the value of the British Monarchy’ (2017) 6 <https://brandfinance.com/wp-content/uploads/1/bf_monarchy_report_2017.pdf> accessed 15 November 2023.
[34] Duke of Sussex (n 1) [62(1)].
[35] Duke of Sussex (n 1) [37].
[36] Callum Galbraith, ‘Success for claimants in phone hacking litigation against publishers of The Sun and The News of the World’ (Hamlins, 26 May 2022) <https://hamlins.com/success-for-claimants-in-phone-hacking-litigation-against-publishers-of-the-sun-and-the-news-of-the-world/> accessed 7 September 2023.
[37] ibid.
[38] Duke of Sussex (n 1) [76].
[39] Duke of Sussex (n 1) [60].
[40] Duke of Sussex (n 1) [39].
[41] Emma Farrell, ‘Are confidential documents ever really confidential once litigation commences?’ (Rollits, 6 March 2023) <https://www.rollits.com/news/articles/are-confidential-documents-ever-really-confidential-once-litigation-commences/#:~:text=Disclosure%20in%20civil%20proceedings%20usually,fair%20resolution%20of%20civil%20disputes.> accessed 7 September 2023.
[42] Duke of Sussex (n 1) [89].
[43] Adrian Zuckerman, ‘Artificial Intelligence in the Administration of Justice’, in Andrew Higgins (ed.), The Civil Procedure Rules at 20 (Oxford 2020).
[44] Kawasaki Kisen Kaisha Limited v James Kemball Limited [2021] EWCA Civ 33 [16].
[45] Justia, ‘2022 New York Laws CVP – Civil Practice Law and Rules Article 30 – Remedies and Pleading R3025 – Amended and Supplemental Pleadings.’ (Justia) <https://law.justia.com/codes/new-york/2022/cvp/article-30/r3025/#:~:text=(b)%20Amendments%20and%20supplemental%20pleadings,by%20stipulation%20of%20all%20parties.> accessed 26 November 2023.
[46] Siddiqui v. Smith 207 AD 3d 681 (NY App Div 2022) 682.
[47] Laura Clancy, ‘The media is central to the monarchy’s survival. Will it also be its undoing?’ (Open Democracy, 13 September 2022) <https://www.opendemocracy.net/en/queen-elizabeth-king-charles-media-monarchy-survival/> accessed 8 September 2023.
[48] Alex Taylor, ‘Harry and Meghan: What’s the media’s ‘invisible contract’ with British royalty?’ (BBC News, 11 March 2021) <https://www.bbc.co.uk/news/entertainment-arts-56326807> accessed 8 September 2023.
[49] Duke of Sussex (n 1) [76].
[50] Laura Clancy, ‘‘If You Move in the Same Circles as the Royals, then You’ll Get Stories About Them’: Royal Correspondents, Cultural Intermediaries and Class’ (2023) 17 Cultural Sociology 331.
[51] Edward Owens, The Family Firm: Monarchy, Mass Media and the British Public, 1932-53 (University London Press 2019) 91.
[52] Duke of Sussex (n 1) [38].