By Brian Cathcart
DAY TWO of the London High Court hearing in the Daily Mail intrusion and phone hacking case brought the newspaper’s approach into clearer relief.
This is a preliminary hearing, not a trial, and the Mail, or rather its owner Associated Newspapers Ltd, has been asking the court to strike out parts of the claims against it – made by Sir Elton John, Prince Harry, Baroness Doreen Lawrence and four others – on the grounds that they rely on documents it believes should be legally confidential.
These documents, referred to in court as ‘the ledgers’, were compiled by Associated itself and submitted to the 2011-12 Leveson Inquiry into press standards. They give a detailed picture of the dealings that the Mail and Mail on Sunday had with private investigators from 2005 until 2007 or later.
They name several private investigators as well as numerous journalists who commissioned work from them or who received the products of their work, and they also identify sums of money paid by the newspapers. Such evidence is obviously relevant to the cases of each of the seven complainants, who allege that the newspapers used private investigators to invade their privacy illegally.
Associated argues that because the ledgers were submitted to the inquiry on a promise of confidentiality confirmed by one or more legal ‘restriction orders’, and because they were never released to the public by the inquiry, the claimants should not be allowed to rely on them in their claim.
One problem with this is that significant parts of the ledgers have already been published. Acquired by an investigative journalist in 2017, they provided a basis for a number of articles published by an online media organisation which, the court has ordered, may not be named at this stage. That is how they came to the notice of the claimants.
To summarise, the Mail wants the court to uphold orders restricting publication of documents already at least partially in the public domain – documents, moreover, which show every sign of being highly relevant to claims of illegal privacy breaches by the Mail and Mail on Sunday. Both are newspapers, as has been widely noted, that are normally outraged at the very idea of corporations and individuals using the courts to suppress documents of public interest.
The judge, Mr Justice Nicklin, has shown some sympathy for Associated’s position, indicating that he would feel uncomfortable about allowing free use of documents that had been the subject to a restriction order by a public inquiry, however long ago. At the same time, he appeared to accept that in the course of further proceedings the claimants would probably be entitled to demand the disclosure of the ledgers by Associated, meaning that the contents might ultimately be used in evidence anyway.
How significant is all this? Nothing that the judge has said thus far suggests that when he delivers his decision, probably in a few weeks time, he intends to dismiss the entire case of each claimant. Nor, given the admitted possibility of later disclosure, does he seem likely to declare that the ledgers are entirely off-limits.
On the other hand it seems that he might require some editing of the particulars of claim or alternatively he might insist that the claimants seek permission from the Secretary of State for Justice to rely on the ledgers. Either would entail delay – and delay seems to be the Mail’s game.
The claims against Associated were submitted last October and most unusually this three- or four-day hearing is taking place almost six months later without Associated even having formally acknowledged it has received them, let alone submitted its formal defence to the court.
Associated is known for its aggressive defence of legal proceedings. Owned by the billionaire Lord Rothermere, it does not hesitate to deploy its ample resources in the courts. If it fails to persuade Mr Justice Nicklin on this occasion, for example, it might appeal, just as it appealed against all the odds (and lost) when it was sued by the Duchess of Sussex.
And this is understandable in the present circumstances, because it is hard to exaggerate how high the stakes now are for Associated.
In 2011-12 it fervently denied at the Leveson Inquiry that its journalists had hacked voicemail messages or used other illegal information-gathering means as had then been admitted by Rupert Murdoch’s News of the World, and ever since then it has made a point of maintaining the same fervent denial, even as a number of other national newspapers have been proved to have hacked.
It is an integral part of the image forcefully presented to the world by the Mail papers and their veteran editor-in-chief, Paul Dacre: that they are respectable, serious, mid-market newspapers, superior in many ways to ‘red-tops’ such as the Sun and the Mirror. A judgment at trial against the Mail papers and in favour of these claimants – some of them extremely well-known – would be devastating to that image, linking them for ever to the most squalid and repulsive forms of intrusion.
And that is only the beginning. The financial implications of defeat could be even worse, given the possibility that other claimants might come forward to assert that they have been the victims of Mail intrusion and claim compensation. No one could say how costly that might prove, but similar litigation has cost the Murdoch and Mirror organisations hundreds of millions of pounds.
And finally there is the Lawrence factor. The proudest boast of the Daily Mail over the past quarter century has been that it played a role in bringing to justice the killers of black teenager Stephen Lawrence (a highly arguable claim) and Dacre has made this a personal badge of honour.
That Baroness Doreen Lawrence, Stephen’s highly-respected mother, is among the claimants, claiming that she was spied on illegally by the Mail for many years, has already done grave damage to the paper’s reputation. (So admired is she that the Mail is reduced to claiming she must have been duped into joining this action.) If her claim ultimately succeeds, twenty-five years of noisy boasting by the Mail and Dacre will be exposed as hollow at best, cynical at worst.
Under its present ownership and leadership Associated is probably incapable of absorbing the shock of defeat on such a scale. It is impossible to imagine it putting its hands up to wrongdoing, carrying out a house-cleaning and promising the public it will behave better in future. The case is therefore existential; the Mail as we know it could not survive defeat.
It should not be surprising, therefore, that Associated is fighting extremely hard. It has contrived to delay the publication of the ‘particulars of claim’ by six months when it normally takes two weeks. Now it is trying to have those particulars of claim rewritten or cut down in a manner that could at least lead to further delays.
And tomorrow the court begins hearing arguments on the second and conceivably more important element of Associated’s case, as the newspaper group seeks to have all of the claims thrown out entirely on the grounds that they are ‘out of time’ – in other words past the point of limitations for such actions. The claimants’ counsel has promised a robust response.