PROCEDURE, SUMMARY JUDGMENT, “SURMISE AND MICAWBERISM” AND… THE ROYAL FAMILY

A blog about civil procedure doesn’t get to write about the Royal Family much. However the judgment of Mr Justice Warby in HRH The Duchess of Sussex v Associated Newspapers Ltd [2021] EWHC 273 (Ch) strays into our territory. There is a consideration of the principles, and evidence, relating to summary judgment and the signature of witness statements.

“a desire to investigate alleged obscurities and a hope that something will turn up …”[1] as a basis for defending a summary judgment application; a case that is “all surmise and Micawberism” will not do”

THE CASE

The claimant was bringing proceedings for misuse of private information and infringement of copyright in relation to letters she wrote to her father.  The trial was due to take place but had been delayed. The claimant applied for summary judgment and was successful in part.

 

THE JUDGMENT ON PROCEDURE

The judge considered the principles relevant to summary judgment and the evidence available.

    1. Easyair principles (vi) and (vii) contain echoes of the law’s traditional disapproval of a “a desire to investigate alleged obscurities and a hope that something will turn up …”[1] as a basis for defending a summary judgment application; a case that is “all surmise and Micawberism” will not do: see The Lady Anne Tennant v Associated Newspapers Ltd [1979] FSR 298, 303 (Sir Robert Megarry V-C). The focus is not just on whether something more might emerge, but also – and crucially – on whether, if so, it might “affect the outcome of the case”; and the court’s task is to assess whether there are “reasonable grounds” for believing that both these things would occur: see Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2006] EWCA Civ 661 [2007] FSR 63, [18] (Mummery LJ).
    1. As Mummery LJ warned in the Doncaster case at [10], on applications for summary judgment the court must be alert to “the defendant, who seeks to avoid summary judgment by making a case look more complicated and difficult than it really is”. But as he also said at [11], the court should beware “the cocky claimant who … confidently presents the factual and legal issues as simpler and easier than they really are and urges the court to be ‘efficient…“. Efficiency is not a ground for entering summary judgment. Judgment without a trial may sometimes result in huge savings of time and costs; that would have been so in the hugely expensive litigation in Three Rivers District Council v Bank of England. But neither Part 24, nor the overriding objective, permits the Court to enter judgment on the basis that the claimant has a strong case, the defence is not likely to succeed, and the time and costs involved in a trial are disproportionate to the potential gains.
    1. 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.
    1. Mr White QC (who argued the defendant’s case on misuse of private information) invites me to bear in mind what he says is the rarity of summary judgments in the fields of law with which I am concerned. He and Mr Speck (who argued the case on copyright infringement) point to the need for an “intense focus” on the specifics of the competing rights in play, suggesting that it will usually be impossible to conduct this otherwise than at a trial. Mr Rushbrooke QC counters that summary judgment has been granted in several such cases, of which the most notable and the closest comparator is the decision of Blackburne J, affirmed on appeal in HRH Prince of Wales v Associated Newspapers Ltd [2006] EWHC 522 (Ch) [2006] EWCA Civ 1776 [2008] Ch 57 (I would add, in the case of copyright, The Lady Anne Tennant, decided under the previous and more defendant-friendly procedures of the Rules of the Supreme Court). Mr Rushbrooke suggests, further, that many of these cases are resolved finally at or shortly after the interim injunction stage.
    1. I do not gain much help from these broad propositions. There can be plain and obvious cases in privacy and copyright, as there are in other fields of law. So long as the lens is not obscured by fog or dust, it may be possible to see clearly that a case has only one plausible outcome, and a trial is superfluous. A recent example is the decision of Nicol J in BVG v LAR [2020] EWHC 931 (QB), to grant the claimant summary judgment on his claim in misuse of private information. The Judge did not find it necessary to resolve all the factual issues before concluding with “no hesitation” that the claimant’s privacy rights would “far outweigh” the free speech rights relied on by the defendant: [25(iv)]. The application before me must be decided by the application of the relevant legal principles to the particular facts and circumstances of this case.
Timing and evidence
    1. The application notice was filed on 30 November 2020, 14 months after the claim was issued. The applications have come on for hearing shortly before the second anniversary of the publications complained of, in what would have been the second week of the trial, which was adjourned for other reasons. That makes the applications unusual, as to timing. But it is not a procedural flaw. An application to strike out may be made at any time after the filing of the statement of case that is under attack, and may even be made at trial: see Civil Procedure 2020, n 3.4.1 and cases there cited. An application for summary judgment may be made at any time after the defendant has filed an acknowledgment of service or a defence (CPR 24.4), and may also be made at trial (as in Alexander v Arts Council of Wales [2001] EWCA Civ 514 [2001] 1 WLR 1840). The lateness of the present applications has been explained: new advice from new Counsel. The delay could have costs implications, but casts no light on the substantive merits and is therefore not significant as a factor in the disposal of the application.
    1. One consequence of the relative lateness of the application is that the parties’ cases have been pleaded out in great detail. The claimant’s case is now contained in Re-Amended Particulars of Claim dated 29 October 2020, with two Appendices. The defendant’s case is set out in a Re-Re-Amended Defence, to which the claimant has responded in a Re-Amended Reply. The claimant has served three Responses to Part 18 Requests for Further Information, and two Supplemental Responses. The defendant has served two Responses to Requests by the claimant for Further Information about its draft Re-Amended Defence. A further Part 18 Request by the defendant remains outstanding.
    1. It was the re-amendments to the Defence that added the case that I have briefly summarised above, about the Book. The re-amendments were hotly contested at a hearing before Master Kaye in September 2020, at which the claimant resisted the application to amend on the grounds, among others, that the amendments advanced a new case which had no real prospect of success. On 29 September 2020, the Master rejected those submission, and gave permission to amend. On 29 October 2020, I refused the claimant’s application for permission to appeal against that decision.
    1. The claimant’s application notice states, as required by the Part 24 Practice Direction 2.3, that the summary judgment application is made because “the claimant believes that on the evidence the defendant has no real prospect of succeeding on its defences to the claims and knows of no other compelling reason why the case or issue should be disposed of at a trial”; in other words, that the conditions specified in rule 24.2 are satisfied. This is verified by the claimant’s solicitor, Jenny Afia.

SIGNATURE OF THE WITNESS STATEMENTS

The judge commented on the fact that the evidence in the application did not come directly from the claimant.  This was permissible.

    1. The application notice identifies the evidence relied on in support of that application as the fourth and seventh witness statements of Ms Afia, dated 23 October 2020 and 30 November 2020. Those statements deal mainly with procedural matters and the alleged deficiencies of the defendant’s case. The fourth statement verifies Ms Afia’s belief that the rule 24.2 conditions are met, but neither statement purports to verify the essential ingredients of the claims. As has become clear in the course of the application, the claimant relies for that purpose on her statements of case, also verified by statements of truth signed by Ms Afia.
    1. This is permissible as a matter of principle. A legal representative may sign the statement of truth on Particulars of Claim, and other formal pleadings, provided that – as is the case here – what is verified is the belief of the claimant in the truth of what is stated: Part 22 Practice Direction 2.1, 3.1(2). Although the norm is that evidence at trials and other hearings is given by witness statement (CPR 32.2(1), 32.6(1)), at hearings other than a trial parties may rely on matters set out in a statement of case, if verified by a statement of truth (CPR 32.6(2)). The standard form of application notice reflects this. A tick box is available to identify statements of case as matters relied on in support of the application. That was not done here, but the defendant has not raised a formal or procedural objection to this modification of the claimant’s case on the application. Mr White does however invite me to attach weight to the fact that there is no evidence before the Court from the claimant herself, in circumstances where the key ingredients of her case are within her knowledge, she is the person best-placed to deal with those facts, and (as he submits) her case has shifted in certain respects.
    1. The defendant relies on witness statements from three witnesses: Mr Markle (his first statement), Edward Verity, the editor of the Mail on Sunday, (first statement), and Keith Mathieson, partner at the defendant’s solicitors Reynolds Porter Chamberlain LLP (sixth statement). Mr Markle and Mr Verity are in a position to, and do, give direct evidence of fact, and evidence of their states of mind at material times. Mr Mathieson sets out to explain how the defendant can substantiate its assertion that “further relevant evidence will be available” if there is a trial. An aspect of this concerns “four members of the royal household” (sic, referred to in argument as “the Palace Four”) who, it is said, “are likely to have information relating to issues in the case”. In that connection, Mr Verity also gives hearsay evidence of what he has been told, since this claim was brought, by “a senior member of the royal household” (sic) about the Letter, and about dealings with the Authors.
    1. Also in the papers before the court, though not identified as evidence relied on in support of the applications, are the Confidential Witness Statement of Friend B (one of the Five Friends), and the first witness statement of Omid Scobie. In addition, there are two letters addressed to the solicitors for both parties: one dated 21 December 2020, from solicitors Addleshaw Goddard on behalf of the Palace Four, and one dated 24 December 2020 from Omid Scobie. I shall have to address the status, significance, and weight to be given to this additional material.
  1. The applications have come on for hearing before completion of the process of disclosure and inspection of documents, a matter relied on in the defendant’s arguments on the summary judgment application. But the process of disclosure under PD51U is fairly well advanced. The claimant’s case is mainly based on the proposition that the pleaded case provides no answer to the claim, but it is also her case that there is no reasonable basis for supposing that disclosure could yield anything capable of affecting the outcome of the claim.

 

THE RESULT

The claimant obtained summary judgment in relation to the claim based on privacy. The matter was allowed to proceed to trial in relation to the claims relating to copyright.