By Brian Cathcart
THE FOUR-DAY London High Court hearing about the phone hacking and privacy intrusion claims against the Daily Mail group by Prince Harry and others ended in the world of the hypothetical and even the surreal.
The judge, Mr Justice Nicklin, reserved judgment, meaning it will probably be a few weeks before he delivers his decisions about the Mail group’s applications to have the claims either thrown out or eventually reduced in scope.
The prince, Sir Elton John, Baroness Doreen Lawrence and four others accuse the newspapers of breaching their rights, mainly by the use of private investigators who employed unlawful methods and mainly in the years between 2000 and 2010, while the owners of the Mail, Associated Newspapers, assert (among other things) that the courts should not entertain their claims because they were made outside the usual six-year time limit.
Responding to the claimants’ assertion that they were only able to bring the case once there was enough evidence to do so, counsel for Associated, Adrian Beltrami KC, found himself insisting at some length that they had grounds to be suspicious of his client years and years ago.
While reminding the court that Associated denied all the allegations against it, he took the judge through a catalogue of evidence, some of it from as long ago as the early 2000s, which he said might reasonably have given the claimants grounds to sue at a far earlier date.
Even as senior Associated executives told the Leveson Inquiry of 2011-12 that they had conducted internal investigations and knew for certain there had been no voicemail hacking, Mr Beltrami pointed out, the claimants – some of whom have already sued other papers for hacking – might have paid attention to numerous published claims and insinuations that Mail and Mail on Sunday journalists had broken the law.
Where the claimants now said that particular articles published about them in Mail papers give rise to the inference that illegal measures had been used, he said, nothing had prevented them drawing those inferences and taking legal action in a more timely fashion.
As an argument it may carry weight in law, but it seemed at times to come close to being an assertion from the Mail’s representative in court that ‘You shouldn’t have believed our denials.’
With Prince Harry once again in the courtroom watching, counsel for the claimants, David Sherborne, who several times described Associated’s bid to have the case thrown out untried as ‘ambitious and unattractive’, complained that Associated’s approach to the hearing demanded the discussion of many issues which properly belonged in the trial itself.
He none the less engaged in a detailed presentation of the claimants’ cases and the nature of the evidence involved, and in this he faced numerous interventions from the judge, who pressed him on timings. Which evidence could have provided the basis of a complaint at an earlier date, the judge asked, and which evidence was new and, as he put it, ‘triggered it over into a worthwhile claim’?
In response Sherborne read extracts from statements made by a number of claimants, including from Baroness Lawrence, the mother of murdered teenager Stephen Lawrence. She said she had been surprised in the past by some material the Mail had published but she insisted that at the time she thought the paper was her supporter and ally and she even believed that some of its journalists were her friends.
‘I never thought that they could be hacking and tapping and bugging me,’ she said, and it was only last year that she saw evidence that made her believe they had. ‘Never could I have believed this was possible.’
Sherborne also quoted the actress Elizabeth Hurley, another of the claimants, as saying that until recently she had no awareness of the role of private investigators in the work of the Mail papers and had had no reason therefore even to consider a claim against the paper.
The parties now await the judge’s decisions. His options include:
– He could dismiss the whole case.
– He could allow the case to proceed but require the claimants to edit their ‘particulars of claim’ so that they no longer rely on documents found to be confidential or ‘restricted’ unless they obtain
permission from the Secretary of State for Justice to rely on the ‘restricted’ documents.
– He could allow the particulars of claim to stand unchanged.
It is also possible that he could make distinctions between the seven different claims, ruling differently about them.
Either Associated or the claimants might appeal against against some or all of the judgment, when it comes. Associated’s record in the courts suggests it is highly likely appeal any adverse decisions.
It is not possible, on the basis of what was said in court, to give any informed prediction of the likely outcome. Mr Justice Nicklin was generally even-handed in his interventions. Though he interrupted Sherborne more often than he did Beltrami, that was often to move things forward or clarify rather than to disagree with him.