The case was brought following the publication by the Mail on Sunday and MailOnline, of excerpts of a letter sent by Ms Markle to her father.
This application was to strike out three elements of the claimant’s case, that:
(1) the defendant acted dishonestly, and in bad faith;
(2) the defendant deliberately dug up or stirred up conflict between the claimant and her father; and
(3) the claimant was distressed by the defendant’s “obvious agenda of publishing intrusive or offensive stories about [her] intended to portray her in a false and damaging light”
The defendant succeeded in striking out all three elements. Mr Justice Warby delivered a decisive judgment following pithy analysis of the points of law, surmising that:
“Some of the allegations are struck out as irrelevant to the purpose for which they are pleaded. Some are struck out on the further or alternative ground that they are inadequately detailed. I have also acted so as to confine the case to what is reasonably necessary and proportionate for the purpose of doing justice between these parties…”
The judgment in more detail
Applications to strike out elements of a claim may be made under Civil Procedure Rule 3.4(2) on one of three grounds, two of which are relevant here- that the statement of case discloses no reasonable grounds for bringing or defending the claim and that the statement is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of proceedings. The Court must also consider the application of the overriding objective- that cases must be decided justly and at proportionate cost and time.
It should be noted that the application of these rules is a rigorous process, formulated to ensure that cases proceed efficiently, on the basis of cost, time and justiciability.
Considering the application of these rules to each of the elements of the statement of case in dispute may assist here:
(1) the defendant acted dishonestly, and in bad faith
The key issue with this aspect of the application is its relevance. An action for misuse of private information requires two elements- that the claimant has a reasonable expectation of privacy in relation to the information at issue and that, on balance, the right to privacy in this instance is weightier than that of freedom of expression. The qualification of the defendants’ actions, as being dishonest or in bad faith, are irrelevant to establishing a successful claim.
It was argued unsuccessfully by the claimant’s that the defendants’ dishonesty and bad faith were circumstances which should be taken into account in either of the limbs of the test. Indeed, historically throughout caselaw, neither of these elements are relevant to establishing liability for misuse of private information. Their inclusion in the particulars of claim therefore served to obstruct the just disposal of the proceedings. Rightly, elements of the claimant’s case referring to dishonesty in this context were struck out.
It was further successfully argued that these allegations were inadequately pleaded by the claimant. Any allegations of fraud, misrepresentation or wilful default must be pleaded with full particulars per Practice Direction 16, para 8.2. Mr Justice Warby highlighted three failings in this regard- a lack of clarity around what dishonesty was alleged, no reference to who was alleged to have been dishonest and a lack of detail in the statement of case from which dishonesty could be inferred.
(2) the defendant deliberately dug up or stirred up conflict between the claimant and her father
Again, it was considered that these allegations were not relevant to a claim of misuse of private information. Further, the allegations in the statement of claim were also lacking in detail amounting to “little more than a bare assertion” at [58]. This provides the defendant and Court little critical information much less the facts and evidence required to make a substantive reply or consider the issue at a preliminary stage.
Reference to this “stirring up” was also struck from the claimant’s reply on similar “lack of particularity”.
(3) the claimant was distressed by the defendant’s “obvious agenda of publishing intrusive or offensive stories about [her] intended to portray her in a false and damaging light”
Reference to the defendant having an “agenda”, and evidential articles were also struck out from the Particulars of Claim.
The basis for this claim was a series of nine articles, which together the claimant posited could establish an “agenda” of publishing articles regarding her that were of a particular character. These articles were provided to the Court as evidence supporting the claimant’s claims, not as part of separate tortious claims regarding a campaign against her. They were submitted on the basis that an increase in damages for the claim for misuse of private information could be claimed if it were proven that such an “agenda” existed.
It is therefore clear that to determine this ancillary issue would require the Court to assess each of the nine articles in turn, a time consuming and costly process. Much further detail would be required to determine the existence of such an “agenda”, a fact whose determination was not central to the case. On balance such a process would have little benefit to the claimant in her case for misuse of private information, only serving to allow her to recover some additional compensation for emotional harm. Thus these pleadings were wholly inadequate and their determination would be a wholly disproportionate process for the Court to undertake. They were thus struck out.
Conclusion
The three allegations which were struck from the claimant’s case were ancillary issues to the primary action of misuse of private information. This strips back the matters to be considered at trial to the core elements relevant to an action for misuse of private information, applying well-established caselaw and principles ensuring the proper administration of justice. Frankly, the damage to the claimant’s case is fairly superficial given the nature of the elements struck out. It maybe if some had been pleaded in more detail or as to separate tortious actions they would have survived strike-out.
Mr Justice Warby acknowledged this in concluding:
“I do not consider that the allegations struck out on that basis go to the “heart” of the case, which at its core concerns the publication of five articles disclosing the words of, and information drawn from, the letter written by the claimant to her father in August 2018. Some aspects of the case that I have struck out at this stage may be revived if they are put in proper form.”
The costs the claimant will have to bear for the hearing amount to over £50,000.
For coverage see- The Guardian, The Press Gazette, The Daily Mail, The Telegraph and Sky News.
The Privacy Perspective 