By Brian Cathcart
THE JUDGE hearing the bid by the Sun newspaper to block phone hacking claims brought by Prince Harry and Hugh Grant has ordered a a further, shorter hearing in July, after which he will give his decision.
The extra hearing will deal with an issue formally raised late in the day on behalf of the prince, relating to his allegations about a ‘secret arrangement’ between Buckingham Palace and Rupert Murdoch’s company.
Mr Justice Fancourt ruled that more time was needed to debate the prince’s claim that this arrangement helped explain why he could not have sued earlier, part of his response to the Sun’s overall claim that his action came too late to be valid.
The normal time limit for such actions is six years and most of the allegations relate to events before 2012, but Grant and the prince insist that the Sun’s denials were so emphatic and its wrongdoings were so well concealed that it was only after 2016 that they could begin assembling evidence.
This case, involving the daily Sun newspaper, is distinct from larger-scale litigation relating to the now-defunct Murdoch Sunday paper, the News of the World, where phone hacking was admitted in 2011. That paper was closed and the Murdoch organisation has been settling claims ever since, at great expense.
No admission had ever been made in relation to the Sun (which is still trading, although it loses money) and the company appears determined to prevent a second avalanche of claims. Though in the past two years a number of people have received settlements on Sun-specific claims, the company stance remains one of blanket denial.
Grant and the prince are, from the point of view of the Murdoch company, dangerous adversaries. Relatively wealthy men able to afford sustained involvement in Britain’s expensive legal processes, they do not conceal that they are interested in more than compensation. Grant is a longstanding campaigner for press reform and Prince Harry has in recent years declared himself on a mission the challenge the power of the press in the UK.
Both accuse the Sun of more than voicemail hacking. Grant says his landline was tapped, his home was burgled and bugs placed in it and private information including medical records was stolen or otherwise illegally acquired. Prince Harry, meanwhile, alleges that his mobile phone was hacked and that the Sun illegally acquired private information about him such as phone bills and medical records.
With no early settlement in prospect, a trial has been scheduled for next January, but the Sun’s move this week was intended to have both claims dismissed forthwith as ‘out of time’. A similar manoeuvre failed last year when attempted by the Mirror newspaper group in its own hacking litigation, but it has since been used by the Daily Mail group and in that case a ruling is still pending.
Arguing the case has involved the Sun’s counsel, Anthony Hudson, in some awkward contortions. He spent more than a day of the hearing describing how much evidence there had been against the Sun before 2016 – in other words trying to convince the judge that illegal news gathering by the paper had been so obvious back then that any sensible person would have sued.
If he finds himself representing the Sun at trial, however, the same Anthony Hudson will no doubt assume the customary company posture of total denial, and will probably ridicule the very idea that anyone could ever have imagined the Sun was guilty of such things. He was open with the judge about this, so that, at least to the lay spectator, he seemed a little like a man speaking with his fingers crossed behind his back.
The issue that has to go to a further hearing in July concerns ‘estoppel’, which may sound like a bath plug from IKEA but is in fact a legal principle relating to promises and other informal undertakings. The undertaking in question – whose existence is denied by the Sun – was the ‘secret arrangement’, a trade-off in which the royal family agreed to delay their claims against the Murdoch company for compensation in return for being spared any requirement to air embarrassing information in public.
In the light of this arrangement, and because the Murdoch organisation was slow to fulfil its side of the bargain, the prince says that even if he had known he had a case against the Sun he would have been prevented from pursuing it.
Though this argument had been developed in the pre-trial paperwork it was not part of the formal ‘plea’ and the prince’s lawyers only sought to add it on the second day of the hearing. Lawyers for the Sun insisted that this left them insufficient time to prepare a full response, so the judge ordered a short additional hearing in the summer.
Much of the evidence presented by the prince’s counsel, David Sherborne, was intended to show practical reasons why the two men’s claims could not have been not made earlier. This included a historical catalogue of denials from the paper that had ever hacked phones, and a list of what he said were public lies and other acts of concealment by named senior executives including Rebekah Brooks, now CEO of Murdoch’s UK company, and Andy Coulson, the former News of the World editor who was convicted of involvement in hacking. Both have denied such allegations in the past.