Thread by @JoshuaRozenberg

I am hoping to live-tweet the procedural hearing today in Duchess of Sussex v Associated Newspapers. It’s not being streamed onto a public website but the High Court cause list indicates how people can access the remote hearing. I’m currently waiting to be let in.

It’s a privacy claim and is being heard in the Chancery Division Intellectual Property List by Mr Justice Warby. He is expected to reserve judgment until a later date. There are no witnesses at this stage.

The duchess complains about publication in the Mail on Sunday on 10 February 2019 of extracts from a letter she sent her father, Thomas Markle, in August 2018. She seeks damages for misuse of her private information, breach of her data protection rights and breach of copyright.

The publishers deny these claims. They say there is a public interest in reporting on and scrutinising the royal family and that by February 2019 the duchess had put the existence of the letter and a description of its contents in the public domain.

At today’s hearing, the Mail will ask the court to “strike out” parts of the duchess’s written claim. The grounds are fairly technical. If judge agrees, the duchess will not be allowed to argue those points at the full hearing.

The duchess say the Mail chose to “deliberately omit or supress parts of the letter in a highly misleading and dishonest manner”. The Mail says allegations of dishonesty and malicious intent do not form part of any cause of action and are not properly pleaded.

The duchess says passages were omitted because they would have been unfavourable to the Mail “as one of the ‘tabloid’ newspapers which had been deliberately seeking to dig or stir up issues between her and her father”.

The Mail says that’s a “bald assertion unsupported by any particulars and … there are no or no reasonable grounds for making this allegation. Other are allegations are “impermissible because … they are irrelevant and/or not properly pleaded”.

There are more than 50 people observing the hearing remotely, all journalists as far as I can see.

Counsel for the duchess is David Sherborne, instructed by Schillings. Counsel for Associated Newspapers is Antony White QC, instructed by RPC.

Case opens on time. Warby J explains the procedure.

Judge says remote hearings are more tiring so there will be breaks. Some members of the public attending remotely. All normal rules apply. Observers must not interrupt.

No visual or recordings allowed. Antony White QC opens.

White QC for the Mail starts with the allegations of dishonesty and malicious intent. Neither is a relevant element in a claim for misuse of private information, he says, citing the Naomi Campbell case on privacy.

White QC: where allegations of bad faith are not relevant to a claim, they should not be pleaded or investigated by the court. A mere assertion of malice will not do.

For those wondering what the hearing looks like, Mr Justice Warby appears to be in his usual courtroom, making notes on his laptop. Both counsel appear to be in rooms with plain backgrounds. All are wearing jackets and ties: no wigs or gowns. Audio works well and images are fine.

Warby J says he has four screens in front of him and he’s not sure that’s enough.

Point is that everyone’s trying to follow at least four lengthy electronic documents at the same time.

The hearing is taking place on Microsoft Teams.

(corrected) White QC now turns to nine other articles published by the Mail. None contains the contents of the letter to the duchess’s father but she says they support her claim for damages.

The duchess says these are examples of the Mail’s “obvious agenda of publishing intrusive or offensive stories about the Claimant intended to portray her in a false and damaging light”. White says her reliance on “examples” is “incoherent”. None of them is said to be unlawful.

The case would become impossible to manage if these articles were allowed to become part of it, White QC argues. Sherborne’s response: this is not a defamation claim. But White says the articles are said to be false. So they should be treated in the same way as in a libel case.

Court adjourned to 1154.

David Sherborne, for the duchess, is arguing that privacy claims have to be handled in a different way from libel actions. He says the publishers are trying to remove factual elements of the claim which go to the heart of of the duchess’s claim about disclosure of private info.

Sherborne: In publishing the Information, the Defendant was disclosing private and highly
sensitive information about the private life of the Claimant...

By contrast, the publication of this material was neither presented as, nor capable of, contributing to a debate in a democratic society relating to matters of legitimate public
interest.

Sherborne draws the well-known distinction between what’s in the public interest and what interests the public.

Sherborne: “the defendant chose to deliberately omit or suppress parts of the letter in a highly
misleading and dishonest manner, including even cutting out words in the middle of a sentence or whole sentences out of a paragraph.”

Sherborne points out that White is not objecting to the word “misleading”, (in my previous tweet) or the claim that “large sections of the letter were deliberately omitted or suppressed by the defendant, and the meaning thereby intentionally distorted or manipulated”.

Worth noting that the judge and counsel would previously have had files of paper documents. That’s impractical now that most people are working from home. Hence the need for everyone to get used to electronic files — several of which have to be open simultaneously.

Sherborne is now going through past cases at high speed. Though he doesn’t say so, many of them must havre involved him, Antony White or Mark Warby. They’re all experts in libel/privacy. The judge is questioning Sherborne on his interpretation of some of these cases.

Hearing adjourned until 2pm.

Hearing resumes. David Sherborne on his feet (literally, I think). Mr Justice Warby has just emailed him an extract from a leading textbook on the topic, to which they have both contributed. Usually, it’s counsel who send authorities to the judges.

There are now 76 attenders plus the judge, his clerk and the two counsel.

Sherborne refers to the Mail’s objection to the claim it had been “deliberately seeking to dig or stir up issues between [the duchess] and her father”. He says the Mail cannot satisfy the standard required for the passage to be struck out.

(corrected) It is manifestly absurd for the defendant to suggest … it was simply seeking to set the record straight on behalf of the author’s father… when it was the same publisher which had …manipulated him into giving interviews which he later described as lies and bullshit.

Warby J to Sherborne: It’s not reasonable of you to expect the Mail to work out what you are talking about. In principle, the judge suggests, particulars should come before disclosure. So he’s clearly in favour of the Mail on this point. Sherborne agrees to “set it all out”.

Sherborne refers to his claim that the Mail has an obvious agenda of publishing intrusive or offensive stories about the duchess intended to portray her in a false and damaging light. He gives examples of articles he says were distressing to her.

The judge asks Sherborne if these additional articles are the basis of a claim and therefore need to be pleaded specifically, as in a libel claim. “No”. But you are seeking aggravated damages for them? “Yes, because of the distress they caused.”

Adjourned for 10 minutes

Sherborne describes the stories that White QC wants excluded from the pleadings as “a pattern of intrusive and offensive articles”.

Sherborne in conclusion: not only are the bad faith allegations relevant, they are critical to the way the claimant wants to run her case. There is no public interest in misinforming and misleading the public.

Antony White QC now has 20 minutes to reply on behalf of the Mail’s publishers.

White QC: we still don’t know who Sherborne is alleging is dishonest. It’s not even alleged that the reporter who wrote the stories chose the extracts for publication.

White QC: the nine additional articles are alleged to be false or untrue. But that would not amount to evidence of malice.

Mr Justice Warby hopes to complete his judgment within the coming week. He says the hearing as gone as smoothly as one could reasonably expect.

At that point my screen froze. All a bit technical, I know, but thanks to this of you who said you found it interesting.