The High Court was the stage for an unusual phone hacking case featuring Prince Harry against the Daily Mail, described as so far removed from standard legal practice that hefty legal costs might fall upon him and his co-claimants, according to proceedings today.
The Mail’s publisher criticized the case, labeling the approach as reckless and utterly indefensible.
During the three-month trial earlier this year, certain actions were not merely unjust to the accused journalists but directly disregarded the judge’s multiple cautions about the trial’s proper conduct, the publisher contended.
In a striking judgment on July 7, journalists from the Mail were completely cleared when claims of hacking and other unethical tactics for story acquisition were dismissed entirely.
As the dust settles, the High Court is now deliberating over who will bear the costs of the unsuccessful, expansive £50 million litigation efforts led by notable figures including the Duke of Sussex, Baroness Lawrence of Clarendon, Sir Elton John and his spouse David Furnish, along with model Elizabeth Hurley, actress Sadie Frost, and former Lib Dem figure Sir Simon Hughes.
The Mail’s publisher Associated Newspapers argued the ‘egregious’ way the claimants and their legal team had conducted the case merited a court order that they pay costs on an ‘indemnity basis’.
Such an order would allow judges to go beyond ‘standard costs’ and force the claimants to bear the brunt of the full legal costs for both sides – though they would still be subject to a ‘reasonableness’ test.
Associated said its costs are around £34million.
Prince Harry and six other famous names are facing a legal bill worth millions over their failed court battle with the publisher of the Daily Mail
In written submissions to today’s costs hearing, Associated Newspapers’ lawyers said: ‘The circumstances of the case, including the conduct of the claimants and those in their camp… take this case well outside of the norm.’
Associated’s lead barrister Antony White KC said the claimants’ individual cases were ‘pursued for the most part without any supporting documentary evidence and on the barest inferential basis’, as he tore through their conduct during the legal process.
He said: ‘The extent of this shifting case was highly unreasonable and inexcusable.
‘It led to significant costs and time being wasted by Associated in preparing to meet allegations, only to find them being subsequently abandoned or changed at trial.’
Highlighting the ‘weak and speculative nature of the claims’, Mr White also accused the claimants of shifting or abandoning altogether their own allegations when faced with the realisation there was nothing to back them up.
And he said the ‘scattergun approach of putting serious allegations to some witnesses, without identifying any supporting evidence, was improper and cavalier’.
Allegations that Mail journalists had engaged in voicemail interception were ‘particularly egregious’.
All the allegations were dismissed by the judge but Associated argued they had been improperly included in the trial as part of a political campaign to pressure the Government to order a new Leveson inquiry into press standards.
Baroness Lawrence and Sir Elton John were among the litigants, whose case was roundly torpedoed by the judge
After the Mail’s victory earlier this month, Paul Dacre, Editor-in-Chief of Associated Newspapers, hailed the ruling as ‘an overwhelming vindication of our journalism’.
But the lengthy fight to clear the paper’s name came at significant financial cost to the publisher.
It also had a ‘lasting impact’ on the journalists whose reputations Harry and the others sought to sully with unfounded allegations.
The claimants’ lawyer, David Sherborne, told the court at the outset it would be a ‘catastrophe’ for Associated if his clients succeeded even in only some of their allegations.
But Mr White said elements of some of the most important claims, that Mr Dacre and other senior executives lied on oath to the Leveson Inquiry into Press standards, were ‘either not put to the witnesses at all or only partially put’.
He said: ‘All of this was done with the benefit of absolute privilege and in the glare of full publicity, courted by and on the claimants’ behalf.’
He also accused the group of ‘withholding the inspection of critically important documents’ that were damaging to their own case.
And he explained how Prince Harry and Baroness Lawrence were able to continue their denigration of the newspaper with an extraordinary statement shortly after Mr Justice Nicklin’s ruling, which they described as ‘a complete and obvious whitewash’.
Actors Sadie Frost and Elizabeth Hurley both gave evidence in the case
The plot to bring down the Mail – codenamed Operation Bluebird – formed part of a political strategy to pressure the Government into holding a second Leveson inquiry, the court heard.
Their research team included Dr Evan Harris, the former head of Hacked Off campaign group, and convicted phone hacker-turned ‘whistleblower’ Graham Johnson, who set about recruiting star names to ‘sue the arse off the Mail’, the court heard.
Mr Justice Nicklin said in his ruling that a statement purportedly made by the claimants’ star witness, former private investigator Gavin Burrows, ‘has not been proved to be his statement’, nor were its ‘contents reliable’.
Associated argues that it must have been obvious prior to the issue of the claims, at least to solicitor Anjlee Sangani and Mr Johnson, that Mr Burrows’s evidence ‘had not been obtained and recorded in a manner which was professional, adequate, or which protected the integrity of the process by which a critical witness’s evidence was obtained’.
It said that his account as relayed by Mr Johnson ‘was on its face clearly extreme and not supported by any documents’.
Mr White said ‘any experienced lawyer exercising professional judgement should have recognised at this early stage that the “evidence” for the Burrows allegations was not reliable unless corroborated.’
Baroness Lawrence was directly introduced to the litigation by Prince Harry, and Mr White said it was ‘no coincidence’ that hers was the first name used in the claimants’ press release in 2022 announcing the intention to sue Associated.
Mr White said this was done ‘in a blaze of publicity’, given her family’s long-running positive relationship with the Mail after it successfully campaigned over years to bring two of her son’s murderers to justice.
Mr White said the allegations generated ‘enormous publicity’ to the detriment of Associated – with the tacit aim of encouraging other famous faces to join their ranks.
Former Lib Dem minister Sir Simon Hughes was among the litigants
He said: ‘Not only did the press release list – in lurid detail – allegations of serious UIG (unlawful information gathering) by Associated, it also said the claimants had seen “compelling and highly distressing evidence” said to be only the “tip of the iceberg”.
‘None of the allegations made in the press release was upheld by the court.’
Mr White told the court the press release was ‘a monstrous thing to publish’.
He said the claimants ‘knew that this was an all-out attack on Associated’.
He added: ‘They were at pains to emphasise that there were others who could join the bandwagon.’
Mr White also said he was ‘sad’ to say that Baroness Lawrence was ‘recruited as the national treasure’, after the trial heard previous considerations of inviting Gary Lineker even though he ‘has no dead children’.
Mr White said Prince Harry’s lawyers ‘persistently refused’ to hand over documents gathered by its research team for scrutiny – a standard part of the court process – and were tardy in producing other material.
This ‘dramatically increased’ Associated’s costs, he said.
And the ‘chaotic and ill-disciplined’ manner of the claimants’ allegations during the trial – introducing entirely new claims while completely ditching others – ‘led to significant costs and time being wasted by Associated in preparing to meet allegations which were abandoned,’ he said.
Mr White added: ‘The extent of this shifting case was highly unreasonable and inexcusable.’
Addressing the issue of expanded costs, Mr White told the judge: ‘If the claimants’ conduct in these proceedings does not attract an order for indemnity costs then it is difficult to see what case would.’
Mr Sherborne, for Prince Harry and the others, said it would be ‘unjust’ for the judge to award costs on an indemnity basis.
David Sherborne, lead counsel for Prince Harry, Baroness Lawrence and the other five claimants
In documents submitted to the court for today’s hearing, the claimants said their allegations against the Mail ‘were neither speculative nor weak’.
The claimants’ legal team acknowledged that, ‘if one combs through the judgment, it is possible to identify instances where the court expressed some concern about the conduct of the litigation in a particular respect.’
But these comments ‘must be weighed in the balance of the court’s holistic assessment of all the circumstances across what has been an enormous piece of litigation,’ they said.
They described Associated’s legal bill as ‘astonishingly high’, and suggested the publisher’s approach was to ‘teach the claimants a lesson’ by seeking the maximum possible financial redress.
Mr Sherborne said: ‘Associated have adopted a “no expense spared” approach to this litigation and such costs should not be condoned by the court from an inter partes perspective.’
He added: ‘It would have a particularly harsh impact on the seven individual claimants in these proceedings, who will bear personal liability for Associated’s costs in excess of their [insurance] cover.
‘They have approached this litigation in good faith, under the burden of decades of intense, intrusive media scrutiny into their private lives.’
He said it was ‘reasonable to expect that there will be evolution’ in how the claimants’ case was put and advanced at a trial such as this.
The court heard the claimants only obtained insurance cover of a combined £16.2million.
The hearing at the Royal Courts of Justice in London is listed to last for up to two days.
None of the claimants were present in court today.
Mr Justice Nicklin is expected to return his judgment at a later stage.
