HRH the Prince of Wales v Associated Newspapers Ltd., Court of Appeal - Chancery Division, March 17, 2006, [2006] EWHC 522 (Ch),[2006] ECDR 20,[2008] EMLR 3,[2008] EMLR 66,[2007] Info TLR 165

Resolution Date:March 17, 2006
Issuing Organization:Chancery Division
Actores:HRH the Prince of Wales v Associated Newspapers Ltd.
 
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Case No: HC05C03452Neutral Citation Number: [2006] EWHC 522 (Ch)IN THE HIGH COURT OF JUSTICECHANCERY DIVISIONRoyal Courts of JusticeStrand, London, WC2A 2LLDate: 17th March 2006Before :THE HON MR JUSTICE BLACKBURNE - - - - - - - - - - - - - - - - - - - - - Between :- - - - - - - - - - - - - - - - - - - - - Mr Hugh Tomlinson QC and Ms Lindsay Lane (instructed by Harbottle & Lewis) for the claimant Mr Mark Warby QC and Ms Christina Michalos (instructed by Reynolds Porter Chamberlain) for the defendant Hearing dates: 21, 22 and 23 February 2006 - - - - - - - - - - - - - - - - - - - - - JudgmentMr Justice Blackburne: Introduction1. This is an application by the claimant, His Royal Highness The Prince of Wales, for summary judgment against the defendant, Associated Newspapers Limited, for breach of confidence and infringement of copyright. It arises out of articles, including an editorial comment, which appeared in ``The Mail on Sunday'' on 13 November 2005. For convenience I refer to that edition of the newspaper as ``the 13 November edition''.2. The defendant is the publisher of The Mail on Sunday. The articles were based upon, and contained extracts from, the contents of a typed-up copy of a journal written by the claimant containing impressions and reflections on his visit to Hong Kong between 27 June and 3 July 1997 on the occasion of the formal handover of Hong Kong to the Republic of China. The claimant represented Her Majesty the Queen at the handing-over ceremony. He also attended other events associated with the handover. The journal, referred to in evidence and in argument as the Hong Kong journal, was handwritten by the claimant during the course of his return journey.3. The claim is not confined to the Hong Kong journal. It extends to copies of seven other journals of the claimant concerned with overseas tours which he has undertaken.4. The claimant contends that the journals set out his private and personal thoughts and impressions of the tours to which they relate, that these matters were not and (with the exception of the contents of the Hong Kong journal) are still not in the public domain and constitute his confidential information. He contends that prior to publishing the article based on the Hong Kong journal in its 13 November edition the defendant was put on notice of this fact.5. The claimant further alleges that the journals are original literary works within the meaning of the Copyright, Designs and Patents Act 1988 (``CDPA''), that copyright in them belongs to himself as their author and that by reproducing extracts from the Hong Kong journal in the 13 November edition and by copying and continuing in possession of all eight journals in the course of its business, knowing or having reason to believe that they are infringing copies of copyright works, the defendant has infringed his copyright in them.6. The contents of the Hong Kong journal are now fully in the public domain. Much of its contents had been revealed in the course of the articles appearing in the 13 November edition. The contents are referred to in the evidence and counsel's skeleton arguments. During the course of the hearing before me, the claimant consented to the press reading the full contents of that journal. The claimant cannot therefore and does not seek to restrain disclosure of any information in that journal. But he does seek an order restraining the defendant from using or disclosing the contents of the other seven journals. He also seeks an order restraining further infringement of his copyright in all eight journals and an order requiring the defendant to deliver up all copies of them in its possession, power, custody or control. He also seeks an inquiry as to damages for breach of confidence and copyright infringement.7. The defendant denies any wrongdoing. It contends that the information in the Hong Kong journal was not confidential and denies that the claimant had any reasonable expectation that it would be kept from the public. It contends that the information in the journal was not intimate personal information but information relating to the claimant's public life and to a ``zone of his life'' which he had previously put in the public domain. It claims that, as a result, much of the information was already in the public domain and that other elements of it were of the same or substantially similar character as information that the claimant had made public. It alleges that in any event the information concerned the claimant's political opinions which the electorate had a right to know as being within the ambit of the Freedom of Information Act 200, alternatively because it relates to the claimant's political behaviour whereby, departing from established constitutional conventions affecting the Heir to the Throne, the claimant has intervened in and lobbied on political issues. Alternatively and for the same reasons, there was a powerful public interest in the disclosure to the public of the information which outweighed any right of confidence the claimant might otherwise have.8. The defendant further contends that the use of extracts from the Hong Kong journal did not infringe copyright as the use was not of a substantial part and in any event amounted to fair dealing for the purpose of reporting current events and, or alternatively, for the purpose of criticism and review, alternatively publication of it was in the public interest. It contends that the limited use in the 13 November edition made of the claimant's own words was fair and in the public interest because it was a necessary, alternatively legitimate, means of providing the public with accurate information on matters of public interest. 9. The defendant denies that the claimant suffered any loss as a result of the publication complained of, contends that claims to injunctions and delivery up should be dismissed, that use of the Hong Kong journal could be lawfully repeated if the defendant so chose and that, for similar reasons, it would be entitled to publish articles using information or extracts from the other journals although it has no present intention of doing so. On the contrary, it has undertaken to give the claimant notice if it formed such an intention with the result that all relief should be denied in any event.CPR Part 24.210. This being an application for summary judgment made under CPR Part 24.2, I must be satisfied, if the claimant is to succeed, that the defendant has no real prospect of successfully defending the claim and that there is no other compelling reason why it should be disposed of at trial. Mr Hugh Tomlinson QC, who appeared with Ms Lindsay Lane for the claimant, reminded me that the power to grant summary judgment has been described as a ``salutary'' one which it is important that judges make use of in appropriate cases, that it is not sufficient to defeat the application that the respondent shows a case which is no better than arguable and that, although the application is not to be treated as a summary trial, this does not mean that the court must uncritically accept any assertion of fact. 11. Equally, Mr Mark Warby QC, who appeared with Ms Christina Michalos for the defendant, reminded me that to defeat the application a respondent need do no more than show that his defence has a prospect of success which is real as distinct from merely fanciful. He pointed to Lord Hobhouse's observation in Three Rivers District Council v Bank of England (No 3) [2001] UKHL 16; [2001] 2 AER 513 at [158] that ``the criterion which the judge has to apply under CPR Part 24 is not one of probability; it is absence of reality''. Referring to passages from Swain v Hillman [2001] 1 AER 91 at 92j, Three Rivers at [95] and Partco v Wragg [2002] EWCA Civ 594; [2002] 2 Lloyds Reports 343 at 352, he reminded me that the court should consider the merits of the respondent's case only to the extent necessary to determine whether they are sufficient for the case to proceed to trial and that the court should not try issues of fact raised by credible evidence and, as a rule, should decline to entertain prolonged and serious argument in a complex case. Nor, he said, referring to further observations in Partco v Wragg is summary judgment appropriate in a case raising novel issues in a developing area of jurisprudence where decisions should be based upon actual findings of fact. Relying on a dictum of May LJ in Ackroyd v Mersey Care NHS Trust [2003] EWCA Civ 663; [2003] EMLR 36 at [70], he submitted that it would be exceptional to grant summary judgment where to do so would interfere with a journalist's right to freedom of speech under Article 10 of the European Convention on Human Rights (``the Convention'') without first examining the facts of the particular case.12. I bear all of those observations in mind as I approach both the factual background to this claim and the legal principles which apply to it.The factual background(a) how the journals came to be written and what happened to them afterwards13. The claimant's evidence is contained in the witness statements of Sir Michael Peat and Sir Stephen Lamport. Sir Michael is the claimant's Principal Private Secretary. He was appointed to that post in 2002. Sir Stephen was Sir Michael's predecessor and served as the claimant's Private Secretary between 1996 and 2002. Their evidence is to the effect that for some 30 years the claimant has kept handwritten journals recording his personal impressions and private views of his overseas tours. Sir Stephen described them as ``candid and very personal, and intended as a private historical record''. Each journal is written immediately following the tour to which it relates. The journals are written wholly by the claimant and are not subject to any revision or editing after they have been completed. 14. On his return to this country the...

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