A High Court judge has ruled Prince Harry and other unsuccessful privacy claimants must pay a higher than usual proportion of costs to the publisher of the Daily Mail.
Associated Newspapers said the decision that its costs can be assessed on an indemnity basis was “another overwhelming victory for the Mail and its journalism”.
Indemnity costs mean proportionality in terms of what was reasonable for the publisher to incur does not limit what can ultimately be recovered. Associated spent £34.5m fighting the case, £18.6m over what had been agreed by the court as a reasonable budget.
In July Mr Justice Nicklin ruled the group of seven claimants had failed to prove any of 97 allegations against the publisher, including phone-hacking (voicemail interception), phone tapping (illegally recording private phone calls) and blagging (obtaining private information by deception).
The case was brought by the Duke of Sussex along with Baroness Doreen Lawrence, Sir Elton John and his husband David Furnish, Sadie Frost, Liz Hurley and former Lib Dem MP Sir Simon Hughes.
Associated Newspapers said the claimants had been brought in to support a “political campaign” led by press reform campaign group Hacked Off.
In the latest judgment on how costs should be assessed, Mr Justice Nicklin said the claim was brought as part of a “strategy that contemplated a coordinated media and litigation campaign designed to drag Associated into the spotlight, challenge its position at the Leveson Inquiry and use legal claims as part of a broader campaign” although he did not blame the claimants themselves for this.
Mr Justice Nicklin has ordered the claimants to make an interim payment of £9,544,355 by 4pm on Friday 28 August – almost exactly one week from when the ruling was published. This is more than the £9,950,624.37 requested by Associated.
A detailed assessment of how much the claimants should pay has not yet taken place, but Mr Justice Nicklin declined to set a cap on how much it could be as it would risk being arbitrary.
He said that overall the legal team’s behaviour during the case was “unreasonable to a high degree”.
For example, he cited the continued reliance on evidence from private investigator Gavin Burrows even after it became clear he “would not cooperate and that his account lacked independent corroboration”.
Overall he criticised “the objective breadth and character of the case as advanced, the speculative and inferential foundation on which many serious allegations rested, the maintenance of serious allegations after the evidential position should have been reassessed, the way in which unpleaded or unsupported allegations were put at trial, the failure to withdraw serious allegations when they were no longer being pursued, and the cumulative effect of those matters”.
The judge said a statement issued by Prince Harry and Baroness Lawrence after his July judgment was “regrettable” as it asserted that the allegations were true even though they had been rejected by the court. But Mr Justice Nicklin did not rely on it as a factor in his decision for indemnity costs, saying it would be unfair as it was only issued by two out of seven claimants.
Associated Newspapers statement on costs judgment in full
“In another overwhelming victory for the Mail and its journalism, the High Court today ruled that Prince Harry, Baroness Doreen Lawrence, Elton John and other claimants would have to pay the Mail’s legal costs on an “indemnity basis” – a rare legal procedure deployed when a case has been pursued in an improper way. The Mail’s legal costs are £35m.
“Mr Justice Nicklin ruled that the way legal teams for Prince Harry and the other claimants ran the case was “unreasonable to a high degree”, and that “allegations of the utmost seriousness were advanced before the evidential foundation for many of them had been established”.
“His judgment is a devastating critique of an attempt to destroy a newspaper and the reputations of its journalists, editors and executives.
“From well before the trial started, the claimants’ lawyers knew that their main witness had denied making the preposterous allegations on which the claims were based.
“Despite this collapse in evidence to support the extremely serious allegations of “abhorrent criminal activity, crimes and terrible and reprehensible covert acts” by the Mail, they were emblazoned in a lurid press release issued on behalf of Baroness Lawrence, Prince Harry and the other claimants, with the exception of Sir Simon Hughes. The allegations were not withdrawn, and were pursued until the bitter end of the trial.
“This placed a huge burden on the Mail to defend the reputations of its innocent journalists and the paper itself.
“The truth is that these outrageous claims should never have been brought. That they were pursued raises disturbing questions about the conduct of elements of the legal profession.
“Of the most profound concern, however, is that Mr Justice Nicklin’s ruling confirms that those behind this action against the Mail pursued the claims as part of “a coordinated media and litigation campaign designed to drag Associated into the spotlight, challenge its position at the Leveson Inquiry, and use legal claims as part of a broader campaign” to resuscitate Part 2 of the Leveson Inquiry.
“This case was a vital element in an insidious strategy by the newspaper-hating zealots of Hacked Off, using fascist, orgy-loving Max Mosley’s millions, and support from Hugh Grant to impose statutory regulation on the press as a whole.
“In Mr Justice Nicklin’s judgment last month, not a single one of the 97 allegations made against the Daily Mail and The Mail on Sunday was upheld.
“We thank Mr Justice Nicklin for the care he has taken over this application, and throughout the litigation. The Mail has worked continuously for the past four and a half years to defend the reputations of its hard-working and honest journalists against smears that date back three decades and would have destroyed their careers.”
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