Duke of Sussex & Others vs ANL: thread 6

[bluegreygreen]

This is the sixth thread discussing the case Prince Harry (and 6 others) brought against the Daily Mail (Associated Newspapers Limited; ANL) for alleged unlawful information gathering (UIG).
The claimants were: Prince Harry (PH); Doreen Lawrence (DL); Liz Hurley (EH/LH); Elton John (EJ); David Furnish (DF); Simon Hughes (SH); Sadie Frost (SF). They were represented by David Sherborne (DS).
The defendant (ANL) was represented by Anthony White (AW).

Judgement was handed down by Judge Nicklin on 7th July 2026.
All claims were dismissed.
Links to the summary and full judgement are below.
We are currently awaiting decisions around costs, following the Consequentials hearing on 29-30th July.

The threads to date were thorough discussions of the evidence (so far as we were able to obtain it), with posters giving links and explaining their views.
Following the judgement, we discussed the judgement itself, the reaction, statements made by different parties and ongoing relevant issues.

We have mostly kept things civil by avoiding more general discussion on Royal Family members, which can become partisan, and trying not to be derailed from the main topic of the thread.

We have occasionally included (when things slowed with the title case) other cases or discussions with a specific theme of free speech/press freedom, particularly when related to those with money or power preventing others from speaking.

Links to previous threads
Thread 1
Thread 2
Thread 3
Thread 4
Thread 5

There was limited direct reporting from court after the celebrities gave evidence; what there we followed on this link, which also includes reaction to the judgement
Sky news link to court case

Summary judgement

Full judgement

And the rest probably.

Be nice for non-resident millionaires and royal wastrels to pay some tax

Daniela Relph is one of those dimwitted Sussex WhatsApp group lackeys. She’s no journalist.

The judge signalled very clearly at several points in the trial that costs were skyrocketing and the case was weak.
What happens if they don't pay up the first tranche by the deadline? Bailiffs? Police?

Finally back and managed to catch up!

Thanks to all who have answered queries and kept the thread on topic - and thanks to @Serenster for specialist input.

I did manage to read the judgement at one point in the afternoon, and as always thoroughly appreciated Judge Nicklin's careful wording, which leaves no-one in any doubt of his exact opinion.

Re Temple Legal - it was previously reported in the Times as the claimants' ATE provider (the article was shared in thread 5 but the share token has expired). I also shared an article from an insurance journal about the practicalities of ATE at the time, which described it as one of the major UK providers:

https://archive.is/cCR3C

Re payment: the judge did make clear in the last paragraph of his judgement that the claimants knew at the end of the hearing (30th July) that the payment date was going to be 28th August.

So they have in effect had 4 weeks' notice, not just one.

But if DS told them, we have a witness! An investigator who is prepared to testify that he worked for the DM, bugging and hacking and stuff. Just like the other two organisations we've already taken to court and beaten.

They might have really believed him and thought they had been wronged.

As the actual main judgement was, this costs judgement really is a thorough condemnation of the actions of the claimants.

Judge Nicklin goes through the principles which should be used when considering a case for awarding costs on an indemnity basis.

He then goes through the arguments that Associated uses to make their case, with the Claimants' counter-arguments.

He states that he is 'quite satisfied that an order for indemnity costs should be made in this case', and proceeds to explain his reasons.

Paragraph 109 summarises those reasons, and he then goes into detail on each point in the following paragraphs.

Paragraph 109:
Several features are important. They include: the speculative and substantially
inferential character of the claims at their origin; the exceptional breadth of the pleaded case; the gravity of the allegations made against a large number of named individuals; the pursuit over an extended period, and up to and including closing submissions, of serious allegations of wrongdoing, including allegations amounting to criminal conduct; the pursuit of allegations which, in material respects, lacked a proper evidential foundation or were irreconcilable with contemporaneous documents; the failure voluntarily to withdraw serious allegations which could no longer properly be maintained; the deployment and continued reliance upon the Burrows material; the way in which the Leveson Lies allegations were introduced and pursued; the putting of unpleaded allegations of UIG to witnesses at trial; and the public presentation of
allegations of serious criminality and impropriety which were not ultimately
established. These are not isolated points. They are connected features of the way in which this litigation was conducted.

There are some other parts of the judgement that stood out to me for particular reasons, but thought I would put this summary here.

The judge has a history with H, where H attempted to sue DM for libel for printing a story that H hadn't initially offered to himself pay for security for himself and his family, as he had claimed; and that he only offerled at a later date, but claimed he had offered to do so earlier for optics. Judge Nicklin decreed that DM had every chance of winning against H, so H withdrew the claim.

This earlier chancer duplicity can't have helped H's credibility with Nicklin.

Well they definitely knew before they went to trial as the Burrows retraction was reported at pre-trial hearings and in the press
https://www.theguardian.com/uk-news/2025/nov/11/witness-in-prince-harry-case-against-mail-publisher-says-his-confession-was-false

The first main criticism that was made was the breadth of the claim, in other words the fact that the claimants were trying to turn this into a public inquiry. We have repeatedly discussed this.

The second criticism that was made was that the claimants and their legal team were required to assess the strength of their case at appropriate points throughout the litigation, and that there was no evidence that they had done so:

120.
A second and related feature is that the Claimants failed adequately to reassess the scope and strength of their case as the litigation developed. After disclosure, the Claimants were required to consider whether the allegations they had made could properly be maintained. Following the July Judgment, they were required to consider the effect of the Court’s rulings on the proper parameters of the litigation and the limits of propensity evidence. After the exchange of witness statements, they were required to confront the fact that a significant number of Associated’s journalists denied UIG and, in many cases, supported their accounts by contemporaneous notes or other documents.

121.
In my judgment, those were important moments in the litigation. An inferential case may properly be advanced where the evidence supports it. But an inferential case must be tested against the evidence as it emerges. As the litigation progressed, the Claimants could no longer proceed as though the initial pleading could simply be maintained in full. They were required to take a critical and realistic view of each allegation, particularly where a journalist gave a direct denial supported by contemporaneous notes or other documents, or where the contemporary documents were inconsistent with the allegation advanced. There is no evidence that they did so. That conclusion is reinforced by the Article-by-Article analysis in the Main Judgment, where the recurring difficulty was not merely that the evidence fell short at trial, but that the Claimants often sought
to move from generic or contextual material to article-specific findings without a
sufficient evidential link to the pleaded Article or incident.

This criticism is obviously made on the basis of the hearings and case management conferences that Judge Nicklin has sat through, as well as the trial itself.
We know from the judgements that he has clarified on many occasions exactly what is required in the nature of evidence.

That guy can write!

Once they were on the hook, though, it would have been a real, immediate cost to withdraw. And - I seem to recall - DS had strategies to get the Burrows statement into evidence that might have reassured them.

ETA - what the hell possessed DL to keep at it when DM gave her the chance to walk away? Because, whatever fever she had, the others had it, too.

Interesting that in all the Chambers in London, the ‘independent counsel’ just happened to be from Sherborne’s Chambers.

This next one is the one that makes me really angry. I didn't know about it before (we wouldn't, as we were only hearing what was reported from court).

122.
It is striking that not a single allegation of serious wrongdoing was voluntarily
withdrawn by the Claimants. As I have noted, the Ward Allegations had to be struck out. Other allegations were not pursued at trial, or were not put to witnesses, but were not formally withdrawn. A clear example is the group of approximately eight Schedule C journalists whom the Claimants had maintained they wished to cross-examine, but in respect of whom they simply notified Associated during the trial that cross-examination was no longer required. The allegations of UIG against those individuals were not withdrawn, were not acknowledged to have fallen away, and were not accompanied by
any explanation or apology. That matters. Serious allegations of criminality or grave impropriety cannot properly be left hanging over individuals in that way. If a party no longer advances such an allegation, or no longer has a proper evidential basis for advancing it, the allegation should be withdrawn clearly and in terms. The Claimants’ failure to do so was not ordinary forensic judgment. It was not a proper or disciplined way to deal with serious allegations. It was unreasonable to a high degree.

Can you imagine what it must have been like for those journalists? Allegations hanging over them since 2022, court statements written, prepared to give evidence, sitting waiting during days in court, and then suddenly told that you weren't required?

(The Ward Allegations were allegations that ANL journalists had commissioned a burglary. There was no evidence but the claimants would not withdraw the allegations. ANL had to apply to have the claim struck out in one of the pre-trial hearings.)

We did briefly discuss that a week or so back @GwendolineFairfax8.

As far as I can tell, there's no rule against the insurer's independent counsel being in the same chambers as one of the parties - they just have to be independent from the case. In the case of a large chambers, they may well not even come across each other very often.

Good to see you back - hope you've had a good break.

@GwendolineFairfax8It’s not unusual for experts in a particular area of law to be in the same Chambers. This has already been discussed a while ago.

If anyone is interested: Chambers are barristers who share common services, and pay a fee for them, but they are self employed. They don’t necessarily have a clue what each other is doing in terms of cases. They act totally independently of each other but juniors support more senior barristers in some cases, as happened on this case. They are required not to talk about clients or cases so there’s no issue with barristers in a single Chambers representing the insurance company, or advising them, whilst other Barristers are also advocating for the claimants or defendants in the case. In fact barristers from the same chambers can represent both sides in a case: but they cannot talk about it and compare notes! You will find barristers know judges (who were barristers) and have worked with them too as their juniors in the past. It’s a fairly closed world and everyone knows everyone else but there’s no difficulty with that.

I wonder if Hacked Off have left these allegations hanging deliberately, as part of a strategy to go after Leveson 2 in a different way.

@bluegreygreen This tactic also added to the length of rhe case and Anl
needing to prepare to defend those allegations. In fact the claimants were annoyed the judge did not consider more of their allegations. I might be wrong but I think the claimants were required to reduce the scope of the claims to the ones with the best chance of success. However there were so many, defence was very expensive.

I thought people would probably want to have the criticism of the claimants' behaviour around the Burrows evidence in the thread, so here it is:

124
A third major feature is the Burrows material. The allegations based on Mr Burrows were among the gravest allegations in the case. They included bugging, live-call interception, hardwire tapping and phone hacking. They featured prominently in the Claimants’ case and in the public launch of the claims. By the time the claims were issued, however, the Claimants’ camp knew that Mr Burrows had effectively withdrawn cooperation. They also knew that the circumstances in which his 16 August 2021 statement had been obtained were problematic and that his evidence was largely (if not entirely) unsupported by any contemporaneous documentary material.

125
Despite that, allegations based on Mr Burrows were included in the letters before action, in the press release launching the claims, in the statements of case, in response to the Limitation Application, and in the case advanced at trial. The August 2021 statement was certified as compliant with PD57AC. In the Main Judgment, I found that certification to have been a serious error of professional judgment ([A2.125]). That finding is not a finding of dishonesty against the Claimants. But it is nevertheless a serious matter when considering the way in which the litigation was conducted.

126
The situation regarding evidence corroborating Mr Burrows’ evidence did not improve as the claims moved towards trial. By the time of trial, the difficulties with the Burrows evidence had become acute. As explained in Appendix 3 to the Main Judgment, by the end of the trial the remaining relevance of Mr Burrows’ evidence was confined to Article (5), Article (8), Article (23) and Article (24), and his evidence did not support the allegation that, in relation to any of those Articles, he was instructed by Associated, or someone acting on Associated’s behalf, to obtain information by UIG, or that he did in fact obtain information by such means. Mr Burrows denied involvement in those Articles, denied having worked for Associated, denied having been commissioned by Paul Henderson to undertake UIG, and denied that the disputed 16 August 2021 witness
statement was his statement. Nor was there independent corroboration for the core allegations in his account on which the Claimants continued to rely. The person alleged to have been his principal point of contact at Associated, Mr Henderson, comprehensively denied the allegations. Yet the Claimants did not even put to Mr Henderson the full extent of the allegations on which they continued to rely. Nor did they withdraw those allegations.

127
That was not an ordinary incident of evidential failure at trial. It was the culmination of a decision to maintain very serious allegations in reliance on evidence that the Claimants knew, or ought to have appreciated, was seriously compromised. The continuing reliance on the Burrows material, particularly after it became clear that Mr Burrows would not cooperate and that his account lacked independent corroboration, was unreasonable to a high degree.

@MeetMeOnTheCorner

I missed the mention of Godwin Busuttil.

Through the hearing, he must have been reporting back on the disaster that was unfolding. If the insurers pay out under those circumstances, it will look very odd.

Judge Nicklin then criticised the way the claimants had dealt with the Leveson Lies issue:

A fourth feature is the way in which the Leveson Lies allegations were advanced. The allegation that Paul Dacre, Peter Wright and Elizabeth Hartley had lied to the Leveson Inquiry was of the utmost seriousness. It was an allegation of deliberate dishonesty by senior individuals, made in relation to evidence given to a public inquiry. It featured prominently in the public presentation of the claims and was relied upon by each Claimant.

The difficulty is not simply that the allegation failed. The difficulty is that it was
introduced and pursued in a way that went far beyond what was required for the
determination of the individual claims, and was then pursued at trial in a manner
materially different from the pleaded allegation. In the Main Judgment, I addressed the Leveson Lies allegations at [1574]-[1604]. I recorded that the pleaded case alleged lies, not merely inadequate investigation, incomplete disclosure to the Inquiry, or evidence which, with hindsight, might be criticised as too broadly expressed. I also accepted Associated’s complaint that, as the trial progressed, the issue became less clearly anchored to the pleaded allegations, and that fairness required the relevant allegation to be put squarely to the witnesses, particularly where the allegation was one of knowing falsehood.

When the Particulars of Claim were served, the Claimants pleaded reliance on
deliberate concealment because they anticipated that limitation would be raised. In the ordinary course, matters responsive to a pleaded limitation defence would be developed in a Reply, once the Defence had been served. The Claimants’ decision to plead reliance on deliberate concealment in anticipation of a limitation defence is not, of itself, necessarily a matter of criticism. The difficulty is that the Leveson Lies allegations were pleaded at the outset as part of the Claimants’ positive generic case, and in a form which alleged knowing falsehood by named senior individuals. They then formed part of the broader public and forensic narrative by which the claims were advanced. If and insofar
as the allegations were relevant to limitation, they required careful pleading and
disciplined pursuit, closely tied to the issues to which they were said to relate. That is not how the allegations were pursued. At trial, for example, the cross-examination travelled well outside the pleaded Leveson Lies case and into matters concerning the adequacy of Associated’s response to the Leveson Inquiry, rather than the pleaded allegation of knowing falsehood: see Main Judgment [1581], [1602].

The “Operation Bluebird” memorandum (see [33] above) provides relevant context for the way in which litigation against Associated was envisaged by those involved in the wider campaign against Associated. The Claimants themselves were not responsible for that memorandum. It pre-dated these claims and the individual Claimants’ involvement. I therefore approach it with caution. But it is nevertheless a reliable snapshot of a strategy that contemplated a coordinated media and litigation campaign designed to drag Associated into the spotlight, challenge its position at the Leveson Inquiry and use legal claims as part of a broader campaign.

What is striking is the extent to which the strategy actually adopted in this litigation echoed that approach. The claims were launched publicly by high-profile individuals. They advanced allegations not only of UIG in relation to individual Articles, but of widespread and habitual UIG by Associated over many years, including methods said to be criminal or seriously improper. They included the Leveson Lies allegations. They sought to expose the alleged extent of wrongdoing and cover-up by Associated and expressly contemplated that other individuals might have been similarly targeted. At trial, as I have noted, the Claimants sought to explore the adequacy of Associated’s response to the Leveson Inquiry, which went well beyond the case on Leveson Lies.

I do not need to find, and I do not find, that any individual Claimant subjectively
pursued the litigation for an improper collateral purpose. The point is objective.
The case as pleaded and pursued went substantially beyond what was necessary for the adjudication of the individual claims. The Claimants were entitled to seek adjudication of their claims and to rely on admissible and probative evidence to support them. They were not entitled to use those claims as a vehicle for a wide-ranging inquiry into Associated’s conduct generally, or to advance allegations whose prominence was disproportionate to any legitimate role they could play in resolving the pleaded claims. The inclusion and pursuit of the Leveson Lies allegations is the clearest example of that impermissible widening of the litigation.

The next section dealt with criticism of the claimants' conduct of the trial. This felt to me (as a lay person reading it) quite a significant criticism of the legal team. I'd be interested to know how it reads to a legal person.

135
A fifth feature is the conduct of the trial. The Main Judgment records the general
problem. In the introductory framework to Section F, I stated that, where an allegation of UIG was advanced at trial in a form that had not been clearly pleaded or sufficiently particularised in advance, I treated that as a matter of forensic significance because serious allegations of that kind should have been identified in the pleaded case and supported by some proper evidential basis before they are put to a witness: [164]. The Article-by-Article findings provided examples. In relation to Article (13), I stated that it was not permissible to confront a witness for the first time in the witness box with a materially different and more serious mechanism of UIG than had been pleaded: [482]. In relation to the allegation concerning Ms Cohen, in relation to Article (4), the specific suggestion of voicemail interception advanced in cross-examination of
Ms English was not part of any clearly articulated pleaded case, was withdrawn after objection, and had no sufficient evidential foundation: [274].

136
Putting unpleaded allegations to witnesses in the witness box was therefore wholly unacceptable. It was contrary to the Court’s pre-trial rulings and contrary to the orderly and fair conduct of the trial. It placed witnesses in an unfair position. It also created real difficulties for Associated and for the Court in managing the trial. The seriousness of this conduct is increased by the nature of the allegations. These were not minor factual suggestions. They were allegations of criminal or seriously improper conduct. Associated was also entitled to point to the reputational consequences of such allegations being put in open court, under the protection of absolute privilege, in proceedings liable to be reported. Where allegations of this character are put without proper pleading or evidential foundation, the unfairness is not merely procedural. It carries a real risk of reputational harm to individuals who have not been given proper
notice of the case they are said to have to meet.

137
The trial was also marked, in important respects, by a changing case. Allegations were advanced in a form different from the pleading. Some allegations were put but not pursued, yet not withdrawn. Others were not put but remained unwithdrawn. New and unpleaded allegations were advanced in cross-examination. In closing submissions, the Claimants advanced some cases in a way that did not correspond with the case put to witnesses. In the language of Three Rivers, the Claimants resorted, during the course of the trial, to advancing a constantly changing case in order to justify allegations which
they had made. This was not the disciplined presentation of serious allegations that the Court was entitled to expect, particularly after repeated case management rulings designed to ensure that the case was properly confined.

(Three Rivers was one of the cases quoted in the first section of the judgement, when Judge Nicklin was discussing the principles to be remembered in considering the case.)

The last point he dealt with was publicity.

138
A sixth feature is publicity. I accept that this litigation was bound to attract publicity. The Claimants include individuals with substantial public profiles. The allegations concerned newspaper publishers and alleged UIG. Publicity was inevitable. But the publicity relied upon by Associated goes further than that. The press release launching the claims used highly charged language. It referred to abhorrent criminal activity, crimes, and terrible and reprehensible covert acts. It placed at the forefront allegations based substantially on Mr Burrows, including bugging and live-call interception, at a time when the Claimants’ camp knew of serious problems with his evidence and his
cooperation.

139
Publicity of serious allegations is relevant to costs where the allegations fail and where the publicity has been actively courted. The seriousness of the allegations publicly advanced against Associated and its journalists increased the burden on Associated. It also increased the reputational consequences for named individuals. Associated also relied on a statement issued on behalf of Baroness Lawrence and Prince Harry after judgment (see [51] above). I have not set out the statement in this judgment. Its material effect, for present purposes, was to assert publicly that the allegations of serious wrongdoing against Associated and its journalists remained true, notwithstanding their
rejection by the Court after trial. That was regrettable. However, I decline to rely on that statement as a factor supporting an indemnity costs order against all Claimants. It was made on behalf of only two of them, not all. It would not be fair to attribute its contents to the Claimants collectively. I therefore put it to one side. The point which remains relevant to the overall assessment is the public way in which the allegations were initially advanced and maintained, the failure of those allegations at trial, and the absence of any clear withdrawal or acknowledgement as allegations fell away.

These were Judge Nicklin's reasons for making the order for costs on an indemnity basis.

I hadn't intended to put them all here, but as I went through they each seemed very relevant to the discussions we've had.
The one I left out (because I hadn't intended to do it at the start) was the first one, which was 'the breadth and character of the pleaded case'. If anyone thinks I should put those paragraphs here on the thread, let me know and I'll do it tomorrow - need some sleep!

Thank you @bluegreygreen its so much easier to read it in chunks like this.