Meet the Other Phone. A phone that grows with your child.

Meet the Other Phone.
A phone that grows with your child.

Buy now

Please or to access all these features

The royal family

Legal Analysis on Harry’s most recent court case

126 replies

MamoruHisaishi · 27/04/2023 23:51

Here's a good article from the Guardian that provides legal analysis on Harry’s lawsuit against Rupert Murdoch’s newspapers.

https://www.theguardian.com/uk-news/2023/apr/27/has-time-run-out-for-prince-harrys-case-against-murdoch-press

OP posts:
Mumsnut · 01/05/2023 11:03

Could some legal eagle please tell us more about estoppel?

Mumsnut · 01/05/2023 12:27

I had a google but couldnt work out how it applied here.

Dolma · 01/05/2023 12:47

Mumsnut · 01/05/2023 11:03

Could some legal eagle please tell us more about estoppel?

So Harry's problem for any of his claims where the damage was before 2012/2013 (depending on when he issued his claim) is the Limitation Act. If he wants these claims to continue, he needs to convince the judge that one of the specific reasons for removing the relevant limitation period applies. In this situation, you'd usually argue as many of the specific reasons that you think are plausible as alternatives, and let the judge take their pick (because if you don't put a particular reason before the court, the judge can't find in favour of that reason).

One of the reasons for dis-applying the limitation period is that the defendant deliberately concealed facts from the claimant, which meant that the claimant could not put the basic elements of a claim together. We know that Harry has argued this because "deliberately conceal" has been quoted in the press. It's probably his strongest argument, and the one that has been used successfully in other such cases.

As an alternative reason, Harry might have argued that the "secret deal" was a contractual agreement between the parties that meant that News UK has agreed to waive its right to a limitation defence, and can be legally held to that agreement. Bit of a problem for Harry that he can't produce this agreement.

Another alternative reason is estoppel. "Estoppel" basically means that you can't go back on your promise if someone has relied on it to their detriment. So Harry is arguing that even if the "secret deal" wasn't a legally binding agreement, it amounted to a statement from News UK that they wouldn't mount a limitation defence. Harry then relied on this statement and did not bring his claim in time, which is to his detriment as News UK are now, in fact, mounting a limitation defence. He is trying to say that the judge can rule that News UK are prevented (or "estopped") from doing this, and News UK no longer have a right to a limitation defence.

Arguing estoppel for a limitation period is a tough job. Might as well throw it in the mix, but the fact that they've added it so late in the day doesn't show that the legal team have a great deal of confidence in it.

Mumsnut · 01/05/2023 13:10

Thank you! That is so clear. Everything has come into focus.

HeddaGarbled · 01/05/2023 14:37

Yes, thank you - so interesting and informative 🙂

Mumsnut · 01/05/2023 15:08

Do you think he’ll get through, Dolma? The judge appears to feel that the defence were blindsided a bit with this new stuff. Will Harry get a chance to tinker some more or is the goal of the new hearing purely to let the defence catch up?

Dolma · 01/05/2023 20:46

Mumsnut · 01/05/2023 15:08

Do you think he’ll get through, Dolma? The judge appears to feel that the defence were blindsided a bit with this new stuff. Will Harry get a chance to tinker some more or is the goal of the new hearing purely to let the defence catch up?

No way to confidently tell if Harry will successfully argue that News UK does not have a limitation defence. It's very fact-specific, and the particulars of Harry's case aren't available.

Having said that, there is a judgment available from a hearing last year against the Mirror Group, where the Mirror Group tried exactly the same argument about the limitation period to try to get the phone hacking claims dismissed, and the approach that the judge took to deciding that might indicate what the judge in Harry's case will be thinking.

In the Mirror case, the judge decided that if you have had your phone hacked (or otherwise been unlawfully surveilled), and then an article has been published containing information from that hacking, you have suffered from two different instances of misuse of your private information: first, when your phone was hacked, and second when the article was published. As these are two separate causes of action, the 6 year limitation period for each runs separately.

As in Harry's case, the Mirror tried to argue that it had been more than 6 years since both the hacking and the publication, so all claims were time-barred. The claimants argued that the Mirror Group had "deliberately concealed" the facts so that they couldn't bring any of these claims in time.

The judge found that, in respect of the publication claims, there was inherently no deliberate concealment of facts, because the articles were public and the claimants knew about them at the time. So all publication claims had to be brought within 6 years of the articles actually being published. As none of them had, the claims for misuse of private information through publication were time-barred and dismissed by the court.

For the claims about the actual phone hacking, it was less clear cut. The Mirror Group had certainly deliberately concealed the facts about their hacking activities - they falsely attributed their articles to "close friends" and "sources" to put people off the scent. The judge accepted that none of the claimants had actually known that they had been hacked until about 2015, when their friends had brought successful claims and told them to do the same. The judge therefore had to look at "constructive knowledge" - ie, would a reasonable person have twigged that they were being hacked, even if the claimants themselves did not? If so, the 6 year limitation period would have started running from then.

The judge didn't really come to a conclusion on this. These pre-trial hearings are for obvious issues that don't need a full trial to be decided, and if it's not obvious, it needs to continue to be argued about at trial. So that's what is happening with the Mirror case - the trial will hear the full issue of whether the claimants should have known about the phone hacking earlier than they actually did, and will therefore determine when the 6 year limitation period runs from.

So to apply this to Harry's case - he presumably also has both instances where he has been hacked/surveilled, and instances where articles have been published about what was found. If his judge follows the other judge's reasoning, there will be no waiving of the 6 year limitation period for the publication claims. They will all be stuck out if they weren't brought in time.

For the phone hacking/surveillance claims in themselves, the 6 years will run from whenever Harry either actually knew he was a victim, or should have reasonably known. As with the Mirror judge, Harry's judge might find that constructive knowledge is a trial point, and let the claim (and the limitation defence) run to a full trial. However, although we are lacking on the facts, it does seem that Harry has a bigger hurdle to overcome in terms of constructive knowledge than the Mirror claimants did. They were B-list celebrities, and friends of B-list celebrities. It was pretty reasonable of them not to think that they were not Hollywood enough to be phone-hacked. Harry, however, is an extremely high-profile figure. His own brother, who has a similar level of profile, kicked off the entire phone hacking investigation. And Harry was aware in at least 2012 that there was sufficient nefarious activity from News UK to require a "secret deal" in respect of the claims. These same factors don't apply to Hugh Grant in the same way - he's neither B-list nor royalty and didn't have a secret deal - so perhaps the judge will decide differently for Hugh and Harry as to when they should have been aware of the possibility of phone hacking. We shall see!

Mumsnut · 01/05/2023 21:38

Woof! It's much more open than I thought.

polkadotdalmation · 01/05/2023 22:13

I couldn't figure out how an estoppel argument would figure here, but what I read is that the hacking of williams and Harry's phones occurred and William figured it out because private conversations he'd had with Harry were leaked. I didn't get the dates but 2012 ish??
As there were legal cases already going on (not sure if family were involved or other litigants)? the newspaper agreed a deal with William and his legal advisors to hold back with pursuing the claim, until these other legal cases were dealt with, and then mount the claim. That eventually went through and William settled out of court.

I'm assuming that that is the estoppel Harry is referring to? The deal (secret aka confidential) to delay bringing their hacking case until the others were dealt with and then William decided to settle, but Harry refused. So that would be the promise that Harry relied on? The delaying of his case until about 2019(?) when he decided to sue and William to settle. Not sure of the exact dates but around about that time. So Harry would have known about the hacking in 2012 but this deal, he feels, prevented him from starting an action within the time scale allowed?

polkadotdalmation · 01/05/2023 22:21

I wonder if it shows that the newspaper group were canny enough to know that if they tied it up until 2019 or so, even if either brother had decided to sue they would be out of time? William would never have had any thought of going to court and would always settle, which they presumed Harry would too. Of course no one knows any of these details it's just speculation...

polkadotdalmation · 01/05/2023 22:22

I thought estoppel was mainly about property as it was used in our case, but clearly has other uses??

Mumsnut · 02/05/2023 11:00

I'm thinking ... if this goes to a trial, will H put PW and CIII on his witness list and are they then compelled to appear?

polkadotdalmation · 02/05/2023 11:07

Mumsnut · 02/05/2023 11:00

I'm thinking ... if this goes to a trial, will H put PW and CIII on his witness list and are they then compelled to appear?

If a court orders you to attend I believe you have to if you are an ordinary citizen, but if the newspaper group did a deal with them to delay pursuing the case, wouldn't it be easier to get them to court? Did the queen have crown immunity? Would Charles have it now? Princess Anne is no stranger to court so maybe not? Maybe someone more knowledgeable has the answer?

IcedPurple · 02/05/2023 11:19

Did the queen have crown immunity? Would Charles have it now?

Yes he would.

Princess Anne is no stranger to court so maybe not?

Princess Anne is legally a 'commoner'. Simply being the daughter or sister of a monarch doesn't grant you any special status before the law.

WinnieTheW0rm · 02/05/2023 12:15

Did the queen have crown immunity? Would Charles have it now?

Yess he would

Lovely essay here on that theme:

Can the Queen be Arrested? | University of Law

michaelmacrae · 02/05/2023 15:45

@Dolma really appreciate your explanations here.

PollyPeptide · 02/05/2023 18:56

But don't the two arguments contradict each other? He says he didn't know about it because the sun deliberately concealed it. But he also says he did know because he knew about the "deal" in 2012. He's made public statements of both those positions. They surely can't both be true?

poppysockies · 03/05/2023 12:41

But he also says he did know because he knew about the "deal" in 2012. He's made public statements of both those positions. They surely can't both be true?

Didn’t he choose to withdraw from the joint action with Harry back in 2019? Then perhaps neglected to pursue his own response within the timeframe?

Serenster · 12/06/2023 21:51

This reply has been withdrawn

This message has been withdrawn at the poster's request

Serenster · 12/06/2023 21:54

Oops, somehow I managed to post that on the wrong thread? Have asked for it to be deleted!

Mumsnut · 13/06/2023 14:04

Had forgotten what an I tetesti g thread this was

AutumnCrow · 14/06/2023 07:49

I've only just found this. What a fascinating and well-informed thread. My understanding of what the arguments are just increased many fold!

What with one thing and another, I can quite imagine that circa 2019 was a critical year or two for Harry and his decision-making, as his centre of gravity shifted concerning his family ties along with changes in his ideas around who deserved his loyalty and who were to be his trusted advisers.

Sometimes I feel like I'm analysing a Tudor Duke or prince. 'The Duke's revenge was brutal and swift but ultimately ill-advised, as the King recovered quickly from the onslaught and subsequently out-maneuvered him on all fronts, playing the long game of Tudor politics with perhaps little in the way of aplomb but decidedly with superior resources and fealties'.

Mumsnut · 28/06/2023 13:05

So, the Mirror’s closing arguments have been very much that Harry didn’t prove his case, and even if he had, it would be worth token damages at most.

does that sound as if there’s a Part 36 offer in place?

kirinm · 28/06/2023 13:10

Mumsnut · 28/06/2023 13:05

So, the Mirror’s closing arguments have been very much that Harry didn’t prove his case, and even if he had, it would be worth token damages at most.

does that sound as if there’s a Part 36 offer in place?

They could have. If they're accepting the risk of 'token damages' they may have made some sort of offer to put him at risk on costs.

To be honest, a lot of litigation has some form of offer at some point because there is always a litigation risk to both sides.

kirinm · 28/06/2023 13:11

Also, offer doesn't have to a Part 36. Other types of offer can be made.