A Cromwellian Declaration: Puritan Sermon or High Court Judgment?

Lord Justice Warby’s latest tract in Duchess of Sussex v Associated Newspapers [2021] EWHC 510 (Ch)

There are portions of Lord Justice Warby’s most recent judgment in the litigation between Meghan Markle and Associated Newspapers that read as if he had a contempt of court matter before him.

So trenchant are the phrases he uses to deploy the novel remedy of an enforced publication on the front page and page 3 of The Mail on Sunday and similar for its online relative MailOnline that the phrase “cruel and unusual punishment” springs to mind.

“Cruel” because, as he states at [70]: "In my judgment these are measured incursions into the defendant’s freedom to decided what it publishes and does not publish, that are justified in pursuit of the legitimate aim I have identified and proportionate to that aim. They will involve little if any additional expense, and certainly nothing approaching the scale of the expense that has been lavished on this litigation."

The “legitimate aim” he identifies at [57] as being "….plain and obvious: it is the protection and vindication of the rights of the claimant, whose civil rights have been infringed by the defendant’s publication. That is a compensatory aim." He dismisses the argument that this remedy is not just unusual but “invasive” by characterising it as “discursive” [56]. 

“Unusual” because he admits to the novelty of this remedy at [60]: "….I can see good arguments for being ready to use it in media cases, where appropriate, and with due caution. The grant of discursive remedies has so far been relatively unusual in this category of litigation and there is no coherent scheme governing their availability….It would seem anomalous if claims for misuse of private information should be the exception to the rule."

“Punishment” is refuted in the judgment. Referring to the use of the power to order publications of a summary of court judgments in s.12 of the Defamation Act 2013, and comments made on this by Mr Justice Nicklin in a 2018 case, Lord Justice Warby states [55]: "….Counsel [Adrian Speck QC] went so far as to suggest in writing that in this case this remedy is ‘intended more as a species of punishment and retribution rather than a necessary and proportionate measure in the interests of the claimant or the public’. The submission was repeated in oral argument. [56] I accept of course that this remedy should not be granted as a punitive measure, or with a view to humiliating the defendant. I would not do so. I do not consider that the defendant is justified in suggesting that this application is motivated by punitive considerations."

The phrases underlined immediately above are unusual at this level of judicial consideration by a Judge, now a member of the Court of Appeal, to an experienced Silk. 

He offers further justification for the novel remedy at [68]: "As to proportionality, the defendant devoted a very considerable amount of space to the infringing articles, which it continued to publish for over 2 years. It has devoted a very considerable number of further column inches, and many hundreds if not thousands of words, to coverage of earlier stages of this litigation and commentary upon them. The wording sought is modest by comparison, and factual in nature."

The ability of newspapers generally and, in particular, the defendant’s publications, to summarise to the Judge’s satisfaction the burden and content of his earlier decision on 11 February 2021 in Duchess of Sussex v Associated Newspapers [2021] EWHC 273 (Ch), evidently irked him. 

He comments on it at [31]: "For the claimant it was argued that the defendant’s behaviour since judgment was handed down makes it important to have a formal statement from the court that is succinct and incapable of misinterpretation…."

?and at [36]: "The reality is that what the vast majority of people learn about judgments comes (understandably) from whatever news source they choose to use. For most people those news sources do not include the judiciary website devoted to the full text of the Court’s reasoned decision [ www.judiciary.uk ] or www.bailii.org …. I see the force of the submission that there is a real value in a short and pithy formal summary of its effect, which carries the authority of the court and is not open to misinterpretation."

And finally [40]: "The defendant has not identified any ‘special reason’ against the grant of a declaration. It has not pointed to any form of harm or detriment to itself of to the public interest if I grant a declaration. It has not suggested that it would be unjust to grant it. I have not identified any other legitimate interest of the defendant in resisting the grant of this relief."

Note to Sub Editors: add hyperlinks to court judgments where possible to escape judicial wrath and to be able to claim in aid – to reinforce fair and accurate reporting - something that was never available to me in the 1960s as a journalist and regular court reporter relying on my Pitman’s shorthand. As a separate plea for Open Justice, would that all courts everywhere would (if it was made possible) render hyperlinked judgments so that the public had access to at least something. 

In conclusion, this 20-page judgment reads more like Oliver Cromwell declaring a New Model Media Law. It sermonises in a fashion not previously seen in such judgments. The New Regime is now one where it will be the inevitable goal of all claimants’ lawyers and advocates to gain control of the defendants’ printing presses, websites, and editorial desks for the publication of their authorised “story” of the result of any success. And woe unto the claimants’ proprietors if resources are spent resisting this. 

A final thought: this is not a “hacking” case, for which there could be no excuse, but one relating to media scrutiny given to the actions and activities of a former member of the royal family. 

Dr Robin Callender Smith is Honorary Professor of Media Law at Queen Mary, University of London’s Centre for Commercial Law Studies. He sat as a First Tier Information Rights Tribunal Judge for ten years until retirement in 2017 and is the author of Celebrity and Royal Privacy, the Media and the Law (Sweet & Maxwell 2015).