HRH The Duchess of Sussex v Associated Newspapers Ltd: ChD 11 Feb 2021

Defence had no prospect of success – Struck Out

The claimant complained that the defendant newspaper had published contents from a letter she had sent to her father. The court now considered her claims in breach of privacy and copyright, and her request for summary judgment.
Held: Warby J said: ‘There are two main questions for me. First, whether the Defence sets out any case which, assuming it to be true, would provide a reasonable basis for finding that there was, at any material time, no reasonable expectation of privacy. Secondly, whether the defendant has any realistic prospect of successfully defending this issue at trial. In my judgment, the answer to both questions is no. Nothing that the defendant has pleaded in answer to this part of the claimant’s case provides any reasonable basis for defending the issue. I also consider that there is no real prospect of the Court concluding after a trial that, at the time the Mail Articles were published, or at any material time between then and now, the contents of the Letter were not private, or that the claimant did not enjoy a reasonable expectation that they would remain private.’
‘The overriding objective of ‘deciding cases justly and at proportionate cost’ does have a role to play if the court concludes there is no realistic prospect of a successful defence, and the question arises whether there is ‘some other compelling reason’ for a trial. At that point, the court would be bound to have regard to considerations such as saving expense, proportionality, and the competing demands on the scarce resources (CPR 1.1(2)(b), (c) and (e)). It is rare for the court to find a compelling reason for a trial, when it has concluded there is only one realistic outcome. The defendant has not suggested that this is such a case. My focus must be on whether it is realistic or fanciful to suppose the claims might fail at trial.’

Mr Justice Warby
[2021] EWHC 273 (Ch)
Bailii, Judiciary, Judiciary summary
Copyright, Designs and Patents Act 1988
England and Wales
CitedEasyair Ltd (T/A Openair) v Opal Telecom Ltd ChD 2-Mar-2009
Principles Applicable on Summary Judgment Request
The court considered an application for summary judgment.
Held: Lewison J set out the principles: ‘the court must be careful before giving summary judgment on a claim. The correct approach on applications by defendants is, in my judgment, as . .
CitedAC Ward and Son v Catlin (Five) Ltd and Others CA 10-Sep-2009
The defendant insurers appealed against refusal of summary judgment in its favour in defending a claim under a policy. The claimants premises had been burgled. The insurer said that the claimant had failed to respect warranties given by it as to . .
See AlsoDuchess of Sussex v Associated Newspapers Ltd ChD 1-May-2020
Defendant’s application for strike out elements of claimant’s case – granted in part.
Held: The court summarised the core principles in considering an application to strike out a defence, saying that it: ‘ . . calls for analysis of the . .
CitedThe Lady Anne Tennant v Associated Newspapers Ltd ChD 1979
Sir Robert Megarry V-C criticised an approach to litigation which amounted to: ‘ A desire to investigate alleged obscurities and a hope that something will turn up on the investigation cannot, separately or together, amount to sufficient reason for . .
CitedHRH the Prince of Wales v Associated Newspapers Ltd. ChD 17-Mar-2006
Application for summary judgment.
Held: Granted . .
CitedDoncaster Pharmaceuticals Group Ltd and Others v The Bolton Pharmaceutical Company 100 Ltd CA 26-May-2006
Appeals were made against interlocutory injunctions for alleged trade mark infringement.
Held: The court should hesitate about making a final decision for summary judgment without a trial, even where there is no obvious conflict of fact at the . .
CitedAssociated Newspapers Ltd v Prince of Wales CA 21-Dec-2006
The defendant newspaper appealed summary judgment against it for breach of confidence and copyright infringement having published the claimant’s journals which he said were private.
Held: Upheld, although the judge had given insufficient . .
CitedZXC v Bloomberg Lp CA 15-May-2020
Privacy Expecation during police investigations
Appeal from a judgment finding that the Defendant had breached the Claimant’s privacy rights. He made an award of damages for the infraction of those rights and granted an injunction restraining Bloomberg from publishing information which further . .
CitedBVG v LAR QBD 21-Apr-2020
Application by the Claimant to strike out the defence or, alternatively, for summary judgment to be entered in the Claimant’s favour and for a permanent injunction.
Held: Summary judgment given. It was not necessary to resolve all the factual . .
CitedSicri v Associated Newspapers Ltd QBD 21-Dec-2020
The claimant complained that the defendant had published his name as a suspect in terrorist activities. He had been released without charge, but the defendant had not published that fact. The court was now asked whether he had a reasonable . .
CitedMaccaba v Lichtenstein (expectation of Privacy) QBD 2-Jul-2004
Gray J considered whether an expectation of privacy arose in a letter sent to another person: ‘as a general rule correspondence between A and B on private matters such as their feelings for one another would be a prime candidate for protection.’ . .
CitedCandy v Holyoake and Others QBD 2-Mar-2017
Mr Candy claimed remedies for what he alleged were completed or threatened wrongs in the form of breach of confidence, misuse of private information, and breach of the Data Protection Act 1998 (‘DPA’) against five defendants, one of whom had filmed . .
CitedTheakston v MGN Ltd QBD 14-Feb-2002
The claimant, a celebrity sought to restrain publication by the defendant of information about his sex life, consisting of pictures of him in a brothel. The court considered the test for the grant of an injunction to restrain publication under the . .
CitedLord Browne of Madingley v Associated Newspapers Ltd CA 3-Apr-2007
The appellant sought to restrict publication by the defendants in the Mail on Sunday of matters which he said were a breach of confidence. He had lied to a court in giving evidence, whilst at the same time being ready to trash the reputation of his . .
CitedRhodes v OPO and Another SC 20-May-2015
The mother sought to prevent a father from publishing a book about her child’s life. It was to contain passages she said may cause psychological harm to the 12 year old son. Mother and son lived in the USA and the family court here had no . .
CitedStephens v Avery ChD 1988
The parties had been friends and had discussed their sex lives. The defendant took the information to a newspaper and its editor, the second and subsequent defendants who published it. The plaintiff sought damages saying the conversations and . .
CitedDouglas, Zeta-Jones, Northern and Shell Plc v Hello! Limited, Hola SA, Junco, The Marquesa De Varela, Neneta Overseas Limited, Ramey CA 12-Feb-2003
The claimants claimed infringement of the privacy of their wedding celebrations. They requested permission for service out of the jurisdiction to join Mr Ramey as defendant, saying he had been the one who had taken some of the photographs in New . .
CitedDouglas etc v Hello! Ltd etc ChD 11-Apr-2003
The claimants were to be married. They sold the rights to publish photographs of their wedding, but various of the defendants took and published unauthorised pictures.
Held: The claimants had gone to lengths to ensure the commercial value of . .
CitedDouglas and others v Hello! Ltd and others (No 3) CA 18-May-2005
The principal claimants sold the rights to take photographs of their wedding to a co-claimant magazine (OK). Persons acting on behalf of the defendants took unauthorised photographs which the defendants published. The claimants had retained joint . .
CitedMcKennitt and others v Ash and Another QBD 21-Dec-2005
The claimant sought to restrain publication by the defendant of a book recounting very personal events in her life. She claimed privacy and a right of confidence. The defendant argued that there was a public interest in the disclosures.
Held: . .
CitedAsh and Another v McKennitt and others CA 14-Dec-2006
The claimant was a celebrated Canadian folk musician. The defendant, a former friend, published a story of their close friendship. The claimant said the relationship had been private, and publication infringed her privacy rights, and she obtained an . .
CitedRe Angela Roddy (a child) (identification: restriction on publication), Torbay Borough Council v News Group Newspapers FD 2-Dec-2003
A twelve year old girl had become pregnant. The Catholic Church was said to have paid her not to have an abortion. After the birth she and her baby were taken into care. The authority proposed the adoption of the baby. There was more publicity. . .
CitedCampbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
CitedDupate v Latvia ECHR 19-Nov-2020
ECHR Judgment : Right to respect for private and family life : Fifth Section
Articles aimed solely at satisfying the curiosity of a particular readership regarding the details of a person’s private life, . .
CitedAli and Another v Channel 5 Broadcasting Ltd CA 16-Apr-2019
The claimant’s eviction had been filmed and broadcast by the defendants. They succeeded in an award of pounds 10,000 damages for breach of their rights of privacy. The parties cross appealed against the sum awarded and the finding respectively.
CitedLord And Lady Perceval v Phipps 3-Jun-1813
Copyright in private letters remained even after transmission and an injunction could be granted to prevent further repubication. However here where the defendant was relying upon the letters to disprove false allegations made against him, that . .
CitedWood v Commissioner of Police for the Metropolis CA 21-May-2009
The appellant had been ostentatiously photographed by the police as he left a company general meeting. He was a peaceful and lawful objector to the Arms Trade. He appealed against refusal of an order for the records to be destroyed. The police had . .
CitedNichols v Universal Pictures Co 1930
(US Second Circuit) The judge discussed the difficulty in copyright cases in drawing the line between the taking of general concepts and copying in an infringing manner: ‘Upon any work, and especially upon a play, a great number of patterns of . .
CitedIPC Media Ltd v Highbury-Leisure Publishing Ltd ChD 21-Dec-2004
The claimant magazine publisher alleged breach of copyright by the defendant in their magazine, as to the cover page designs used. It was not clear just which cover was said to have been copied.
Held: The first step in a copyright action is . .
CitedHyde Park Residence Ltd v Yelland, News Group Newspapers Ltd, News International Ltd, Murrell CA 10-Feb-2000
The court considered a dispute about ownership and confidence in and copyright of of video tapes taken by Princess Diana before her death.
Held: The courts have an inherent discretion to refuse to enforce of copyright. When assessing whether . .
CitedAshdown v Telegraph Group Ltd CA 18-Jul-2001
The appellant complained that a part of his confidential diaries had been republished without his consent by the defendant newspaper group. The defendant appealed, saying that the publication was fair dealing.
Held: The exceptions within the . .
CitedInfopaq International v Danske Dagblades Forening ECJ 17-Jul-2009
ECJ Copyright Information society – Directive 2001/29/EC Articles 2 and 5 – Literary and artistic works – Concept of ‘reproduction’ Reproduction ‘in part’ Reproduction of short extracts of literary works – . .
CitedKogan v Martin and Others CA 9-Oct-2019
Dispute over the authorship of the screenplay of a film.
Held: ‘the judgment cannot stand. The judge has adopted an erroneous approach to the evidence, failed to make important findings of primary fact, failed to take account of material . .
CitedSAS Institute Inc v World Programming Ltd CA 21-Nov-2013
The court was asked as to the extent to which the developer of a computer program may lawfully replicate the functions of an existing computer program; and the materials that he may lawfully use for that purpose. SAS had produced a computer software . .
CitedFootball Dataco And Others v Yahoo UK Ltd etc ECJ 15-Dec-2011
ECJ Opinion of Advocate General Mengozzi – Directive 96/9/EC – Legal protection of databases – Football league fixture lists – Copyright
No copyright subsisted in databases set up according to technical . .

Cited by:
CitedGreen v Petfre (Gibraltar) Ltd (T/A Betfred) QBD 7-Apr-2021
Onerous Contract Terms Unclear – Not Incorporated
The claimant said that he had won a substantial sum on the online gaming platform operated by the defendants, but that they had refused to pay up. The defendants said that there had been a glitch in the game. The court faced a request for summary . .

Lists of cited by and citing cases may be incomplete.

Media, Information, Intellectual Property, Litigation Practice

Updated: 01 November 2021; Ref: scu.658053