If Prince Harry had won, press freedom would be finished

Imagine a world in which a dejected prince could summon a group of rich friends to try to shut down a newspaper using the law courts. It sounds like a lesser storyline from the fantasy HBO series, Game of Thrones. Yet it happened, here in the UK.

When the news regarding the High Court’s costs ruling in Prince Harry and the other claimants’ litigation against Associated Newspapers, publisher of the Daily Mail, was reported last week, the focus was on the huge sums involved. The seven claimants would have to pay £9.5million straight away. There would be more to come. The speculation was about whether Harry could afford his share of the bill (he could) and whether this would lead to his quiet retreat from public life (it wouldn’t).

Yet the real news behind this costs ruling was the excoriating verdict on the case given by the judge. Many of the facts of this ill-fated legal battle are well known. The various claimants, including Prince Harry, Elton John and Elizabeth Hurley, brought their cases in 2022. They alleged that Associated Newspapers had engaged in unlawful activity to obtain their personal information. In July this year, those claims were rejected by the High Court. What was less well known was how the case had been brought and the consequences, in financial terms, for those involved.

Last week, the High Court ordered Harry and his fellow claimants to pay Associated’s costs on the ‘indemnity basis’. This is an exceptional order, which can be made where the conduct of litigation takes a case ‘out of the norm’.

The focus of the judgment was on the number of allegations made against Associated that turned out to be unsupported by evidence. The claimants made very serious claims, including phone hacking and the acquisition of confidential information through other illegal means, none of which were ultimately proved. The judge said the claims were ‘speculative and substantially inferential’ and ‘lacked a proper evidential foundation’. By the end of the proceedings, Harry’s barrister, David Sherborne, was forced to advance a novel legal argument: that where there was a strong inference that information had been obtained by illegal means, it fell to the defendants to prove that inference wrong. The judge rejected that argument. The claimants had come to court without evidence sufficient to prove what they were alleging and were robustly criticised for the way in which they pursued those allegations.

Even where there had initially appeared to be evidence supporting claims against Associated Newspapers, it was undermined or withdrawn. The claimants relied, in part, on the evidence of a witness called Gavin Burrows. Burrows was an apparent whistleblower who had given a statement to the claimants’ lawyers saying that he had worked with an ‘ex-army guy’ to obtain information on celebrities using illegal means. Burrows later said that the statement attributed to him was a forgery. The judge was unable to accept that the disputed statement had in fact been made by Burrows and criticised the process by which it had been produced. He said that the solicitor responsible had made a ‘serious error of professional judgment’ in signing it off.

The claimants knew before trial that Burrows disputed the statement on which some of the allegations had been based. Yet they still continued to pursue serious allegations against Associated. When the cases began in 2022, the allegations were also publicised in highly critical statements to the media.

The judgment also considered the conduct of the campaigning organisation Hacked Off. The judge considered a memo circulated by Dr Evan Harris and Graham Johnson, which said: ‘We are planning a coordinated media attack on Associated Newspapers in the New Year.’ It continued: ‘The aim of this media campaign is to drag the Daily Mail into the spotlight for phone hacking.’ The broader objective included challenging the evidence given by senior Associated figures to the Leveson Inquiry and generating political pressure for Leveson Part Two. (The first part of the Leveson Inquiry recommended state-backed regulation of the press, among a raft of measures that would bring an end to press freedom.)

Claims that Associated figures had misled the Leveson Inquiry were repeatedly advanced during the proceedings, but the judge found that the allegation had not been proved. Although none of the claimants themselves had drafted the memo, the court accepted that generating political pressure for Leveson Part Two was one of Hacked Off’s objectives and that litigation against Associated formed part of that wider campaign.

There is a sad footnote to the case. Doreen Lawrence, the mother of murdered teenager Stephen Lawrence, became involved in the proceedings after the Duke of Sussex alerted her to the potential case against the Mail in a personal email. She subsequently met the prince’s legal team at London’s Corinthia Hotel. Lawrence became one of the seven claimants whose cases were ultimately dismissed.

It has since been reported that arrangements will ensure that Lawrence is not personally left out of pocket by the costs of the failed litigation. But her involvement nevertheless demonstrates how the case expanded beyond Harry and other wealthy celebrities. He helped bring into the litigation someone whose circumstances and relationship with the Daily Mail were very different from his own.

It is often easy to forget how stressful it is to be involved as a defendant in a case like this. Katie Nicholl, one of the accused journalists, called the process ‘horrendous’. Only weeks after recovering from surgery, she had to retrieve old notebooks and reconstruct reporting from roughly two decades earlier. Rebecca English called the experience ‘absolute hell’. Harry would always be protected, to some extent, from the real pressures of litigation like this. He would never have to worry about bankruptcy. He could carry on his ridiculous life while the case was proceeding. The same could not necessarily be said of the people the case targeted.

This is not just a story about legal costs. It is also a story about an arrogant prince and his well-heeled friends attempting to shut down a newspaper using the law courts.

The fight for greater press freedom is not over. As Paul Dacre, publisher of the Daily Mail, pointed out in his coverage of the verdict, Labour’s Media Green Paper makes clear that statutory regulation of the press could yet return to the political agenda. Despite losing, these claimants might, in the end, get something close to what the campaign surrounding the litigation wanted all along: greater regulation of the press.

While the legal battles may now be over, the political battle for press freedom may just be beginning.