#Application Details Of CAGL

[princessmadafu]

Summary of Warby’s Judgment, 5th August 2020

For those of you who don’t have time to read all 65 paragraphs in full:

Introduction

(1) MM's "Five Friends" only spoke to People if they could remain anonymous.

(2) The 5F are not sources for anything published by DM/ANL, just the People article of 18th Feb 2019.

(3) Warby grants MM protection of the 5F, "which at this stage is necessary in the interests of the administration of justice. This is an interim  decision." In other words, witness protection; it will prevent the tabloids hounding the 5F and publishing things that may prejudice the case. He also notes that the case has been going on 10 months, is going slowly, and is still far from trial, and his judgment may change with circumstances, "if and when there is a trial at which one or more of the sources gives evidence." (I like the "if and when" here!)

(4) Warby tells MM's team to get a move on. He wants witness statements and a Costs and Case Management Conference so further pre-trial steps can be taken.

The Procedural Background

(5) MM is suing ANL over The Letter on the grounds of "misuse of private information, breach of duty under the GDPR [General Data Protection Regulation], and copyright infringement." Further details as per his judgment on 1st May 2020, the Strike-Out Judgment.

The relevant issues:

(6) In the S-OJ, ANL says the contents of The Letter were not private or confidential, MM had no resonable expectation that they would be, and their publication was a defence of the right of freedom of expression of ANL, readers and Thomas Markle.

(7) ANL claims MM's own conduct forfeited or weakened any expectation of privacy, and she had knowingly allowed The Letter and contents to enter the public domain.

(8) Six pages of details submitted by ANL; the publication of the People article was "sought and intended", "caused or permitted" and "acquiesced in" by MM. This is inferred because (i) the article contained detailed personal information that could only have come from MM herself (ii) the silence of Kensington Palace and MM on whether MM had consented to the 5F talking to People (iii) MM has not complained to People about publishing the article.

(9) This is the bit where MM claims she didn't authorise the article, didn't know what the 5F were doing, only later discovered it, didn't know they'd talk about The Letter or its contents, only 1F made a passing reference to The Letter and that the summary of the contents of The Letter was wrong anyway.

(10) Since the S-OJ, MM's case has been amended, and more information has been provided by her team. More relevantly, ANL has requested further information:

(11) ANL requested that MM identify the 1F who made the passing reference to the Letter and the other 4F who spoke to People.

The Response and attendant publicity:

(12) "The Response": MM's lawyers responded in a Confidential Schedule, and the 1F is now Friend A, and the others are Friends B to E. The 5F "deliberately chose to speak anonymously."

(13) The bit where she claims her wedding generated £1billion, which far outweighed the public funds spent on security.

(14) At one minute to midnight on 30th June 2020 MM's lawyers emailed a letter and attached documents to ANL's lawyers, received at midnight, claiming the docs had been filed at court. They had not. These docs were The Response, an Appendix of press articles, and the Confidential Schedule.

(15) ANL's solicitors immediately forwarded the email to ANL.

(16) At 4.58pm UK time 1st July 2020, the Mail Online published an article headed "Meghan Markle names the five friends behind People article". Brief description of the article, and we first hear of the "long-time friend, former co-star, a friend from LA, a one-time colleague and a close confidante."

(17) At 5.09pm 1st July, Mail Online publishes another article about the £1billion tourism windfall, according to "documents released as part of her High Court battle against the Mail on Sunday".

(18) Around 11pm 1st July, there followed another article about how MM was left "unprotected" by the monarchy, according to "leaked court documents". It also referred to docs seen by the Press Association news agency about the identification of the 5F.

(19) On 2nd July 2020, the paper-version DM ran with "Meghan: The Palace Hung Me Out To Dry" on the front page, plus pp 2-3; MM says she did discuss The Letter with close friends but never authorised them to talk, and more on the £1billion.

(20) All these articles were clearly based on The Response, but not on copies obtained from the court. A non-party can obtain copies, but only after the docs have been submitted, processed and accepted for filing. Which these weren't. They weren't accepted for filing until 11am on 2nd July 2020.

(21) The docs were submitted for filing as confidential and not for third parties without permission of the court, as they contained private information. They were accepted for filing on this basis. Only The Response is available to third parties, but it wasn't available until 11am on 2nd July, after the articles had already been published.

(22) Widespread international coverage before 11am on 2nd July. ANL's suggested third party seems improbable, whereas MM suggests all third party reporting comes from ANL. Warby did a little digging himself, eg Newsweek, and concludes that all third party reporting came from ANL.

(23) MM says ANL "had been astute to publicise its own case" even before this; cites article from 16th Jan 2020 about MM's private texts with the now ex-BFF JM.

(24) On 6th July 2020, ANL lawyers assert that using a Confidential Schedule as part of The Response is illegitimate, and the Schedule should be fully reportable. If no application for an injunction was made by 9th July, they would presume that MM accepted that the Schedule was not confidential.

The Application and attendant publicity:

(25) On 9th July, MM's lawyers made the application now being ruled on about the confidential nature of the Schedule and the privacy of the 5F: no publishing, communicating or disclosing anything in the Schedule or anything that might identify the 5F; no third party applications without permission of the court; and MM must be allowed in proceedings to refer to the 5F as ABCDE, not by their names.

(26) The application comes with two witness statements, one from MM's solicitor containing evidence about Friend C, the other from MM herself containing the bit about each of these women being a private citizen, young mother, etc blah blah clickbait, emotional and mental well-being...

(27) ANL lawyers suggest MM briefed the press about this application before they had received their own copy. Application filed at 8.32am, served on ANL at 8.30am; 8.45am Sky News already asking ANL for a comment; 9.30am title page of MM's witness statement "posted on the Twitter feed of someone called Omid Scobie" who quoted a "close source"... (I love the "someone called Omid Scobie"!) and the quote about the five innocent women, young mother blah blah... (I can imagine the pages of word salad poor Warby had to go through to condense all this politely; the blah blahs are purely my own.)

(28) Evidence supports ANL that MM's team "have been energetically briefing the media about these proceedings from the outset." Warby quotes emails to media representatives from James Holt, Sussex Royal's Head of Engagement and Communication, including a confidential summary note and a "crib sheet".

Relevant Procedural Law

(29) This is mostly technical stuff that Legal Anons will explain much better, but very basically, it starts with a list of who is allowed to see what, who needs the court's permission to see it, and who can be prevented from seeing it.

(30) "The records of the court": The Court has broad powers beyond those noted under (29) supra, and can provide access to the records of the court under the common law principle of open justice. (This is Warby telling MM that he's in charge, not her!)

(31) Parties may request further information, the Court may order information to be handed over; provision is made whereby information may not be used for any other purpose than court proceedings.

The evidence

(32) On 23rd July 2020, a third witness statement was submitted by MM's lawyers, this from Friend B. Three statements from ANL lawyers were followed on 27th July by a further statement from Friend B in reply.

(33) MM's evidence:

(1) B says she and the other 4F spoke on condition of anonymity, and it was B who organised the interviews after speaking with Jess Cagle (editor of People). She gave two reasons for anonymity (i) to avoid media intrusion into their privacy and (ii) to avoid the appearance of seeking publicity for themselves. MM played no part in this, wasn't aware of it and didn't know until after publication. B and the other 4F want to remain anonymous and refer to how media intrusion will impact on their kids.

(2) MM's lawyers say evidence and hearsay evidence from Friend C (as per (26) supra)

(3) MM's statement is short on facts and gives no good reason why her 5F's anonymity should be preserved.

(4) MM's lawyers give four reasons for anonymity: (i) to protect MM's privacy (ii) to protect the 5F's reasonable expectation of confidentiality (iii) none of 5F have been identified or confirmed as talking to People (iv) none of 5F is a party to the action and none is a witness. They are concerned 5F will be intimidated by the publicity and will not agree to be witnesses in support of MM at trial.

(5) MM's lawyers say ANL is exploiting its position as a major media presence, running MM articles to whip up interest in the case, boost revenue and gain litigation advantage.

(34) ANL's evidence:

(1) MM did not impose restrictions on what could be done with The Response, there was no commercial advantage, publishers are allowed to publish stories about any litigation they're involved in, there is no litigation advantage, and no need for ANL to whip up interest in the case as MM is doing it already, all by herself.

(2) MM's concerns and criticisms have no evidential support, there is "scant evidence" for her privacy concerns for the 5F, the 5F were always going to be drawn into the court case, and there's no justification for giving evidence anonymously.

(3) Press cuttings show that Friend B has previously publicised her friendship with MM, the inference being it was to raise her public profile.

(35) Friend B's second witness statement in response to the press cuttings, puts the cuttings in context and denies that it undermines her first statement.

Some matters that are not in dispute

(36) Three matters:

(1) The importance of the common law principle of open justice. Anonymity must only be granted if justified and necessary for the administration of justice.

(2) 5F only gave interviews on the promise of confidentiality from People.

(3) None of 5F has yet been publicly named, and it is not part of ANL's case that knowledge of their identities is already in the public domain.

(37) ANL has not put forward any justification of it being in the public interest to know who 5F are at this stage.

The rival contentions

(38) MM claims the Confidential Schedule is justified to protect 5F anonymity.

(39) Legalese paragraph citing previous cases where breach of confidence has occurred.

(40) More legalese about who should be allowed use of disclosed documents, ANL are trying to maximise publicity and make money from revealing 5F, and the Schedule is part of the statement of case and therefore only available to MM, ANL and their legal teams.

(41) ANL says in this particular case, anonymity is "a derogation from the open justice principle", and the need for anonymity has not been established by "clear and cogent evidence".

(42) Legalese from ANL lawyers about hearings held in private and the  limited circumstances that this is allowed; three paragraphs citing previous cases.

(43) Legalese about when a private individual can expect privacy, even if the private individual at the same time has a public persona.

(44) ANL's lawyers insist that the Schedule is part of the Response, not part of the statement of case, and should therefore be available to anyone, without the need to request permission from the court.

Assessment

CPR 5.4C

(45) (I'm presuming this means rule 5.4C of the Civil Procedure Rules.) Warby questions why 5.4C distinguishes between a "statement of case" and "documents filed with or attached to the statement of case". He says the "procedural archeology has not been carried out", meaning that it's a bit in the rules that no-one knows why it's there.

(46) Not persuaded that the issue of anonymity is decided by the definition of "statement of case", and Warby sides with MM lawyers that the rule was probably there to exclude from automatic inspection any documents that didn't form part of the body of the case.

(47) "The definition seems to me designed simply to make clear for the avoidance of doubt that "statement of case" does not just cover the main pleadings (particulars of Claim, Defence and Reply) but also Further Information about any of those documents." So in other words, MM technically can separate from the main body of the statement of case anything, Appendix, Schedule or other doc, that she doesn't want a third party to see; an application by a third party will have to have a valid reason before the court will give permission to make it available.

(48) "It is true that a party might abuse the process by placing information in a Schedule or Appendix without any justification for doing so. But such abuse is open to scrutiny and could quite easily be controlled and put right by the Court." In other words, Warby is warning MM - if she's abusing the process, he'll put his foot down and squash her hard. Cites a previous case where the judge decided to "revisit the appropriateness of maintaining confidentiality."

(49) The Schedule, by virtue of it being a "document filed with or attached to the statement of case" was already inaccessible to a third party without permission, and there was no need to make it a Confidential Schedule. It remains closed to public inspection without permission.

(50) This case has two other Confidential Schedules attached, to which no objection has been made so far.

(51) Is the factual and legal status of the Schedule justified? Warby thinks so, and approaches it "through the prism of confidentiality":

(1) ANL does not dispute that the information is confidential in nature, just that MM cannot rely on privacy rights, given her public behaviour. ANL is aware of the need to preserve the confidentiality of sources.

(2) ANL has information that requires an obligation of confidence, "subject only to any public interest that overrides that obligation."

(3) The information is not in the public domain, therefore the obligation remains.

(4) "It is clear enough that ANL is threatening to disclose the information, unless restrained. It invited this application, making it plain that it would consider itself free to publish the names if no application was made." (This strikes me as ANL covering its own back, forcing the principle of confidentiality so that they can't be accused of witness intimidation of 5F. ANL's lawyers have thought this through very carefully.)

(52) This is a procedural application for the protection of witnesses, not an injunction. Cites other similar legal cases.

(53) ANL criticises the lack of evidence that 5F need anonymity. Warby disagrees, as B and C have both made statements; B that she coordinated interviews subject to confidentiality, and C that she would suffer if the evidence and hearsay were to be made public. Warby states that the evidence supplied by and about MM and 5F is "credible and persuasive".

(54) How to reconcile anonymity with open justice.

(55) Open justice has two strands: (i) Human Rights Act`confers the right to a "fair and public hearing". This is concerned with trials at which final decisions are made, not interim or pre-trial processes. ANL has not invoked this. Rather ANL lawyers have chosen (ii) the established common law principle of open justice, which goes beyond the Human Rights Act, in that it does apply to interim processes. Cites other previous cases.

(56) "Open justice tends to foster public confidence in the impartial and fair administration of justice, to deter inappropriate behaviour by the Court, to ensure that evidence becomes available, and to limit the risk of ininformed and inaccurate comment about the proceedings." Not all these factors apply here. Cites similar cases.

(57) Open justice exists to "allow the public to scutinise the workings of the Law." However the Court needs to scrutinise applications for the disclosure of information and weed out anything that does not advance public understanding of the legal process.

(58) Warby slates both parties. In full:

"It is in this context that the parties’ tit-for-tat criticisms of one another for publicising details of this case in and through the media are of some relevance. Each side has overstated its case about the conduct of the other. The defendant has not made good, for present purposes, Mr Mathieson’s contention that the “real motivation” of the claimant and her husband is “to afford them an opportunity to wage their own campaign against the press rather than to obtain the remedies at which the proceedings are ostensibly directed”. Nor does the evidence persuade me that the similarly hyperbolic assertions in the claimant’s witness statement are soundly based. It is however tolerably clear that neither side has, so far, been willing to confine the presentation of its case to the courtroom. Both sides have demonstrated an eagerness to play out the merits of their dispute in public, outside the courtroom, and primarily in media reports."

(59) Ditto:

"This approach to litigation has little to do with enabling public scrutiny of the legal process, or enhancing the due administration of justice. Indeed, in some respects it tends to impede both fairness and transparency. This will be a judge-alone trial, not a trial by jury. But to fight proceedings in court and through litigation PR or sensational reporting at one and the same time is not designed to enhance understanding of the legal process. For a party to file and immediately publicise prejudicial and partisan characterisations of the other’s litigation conduct in the media before a hearing certainly does not assist. Equally, the defendant’s coverage of this litigation has provided readers with a good deal of information about the claimant, her views and her attitudes towards the Royal family, which is no doubt interesting to the public, but it has done relatively little to provide insight into the “workings of the law”.  The coverage has selectively highlighted aspects of the defendant’s case and features of the claimant’s case that are novel and interesting to the public. The focus is on sensational reporting of information that happens to be contained in the claimant’s statements of case. There are references to to the proceedings, but some of these involve speculation about what disclosure might be given, and who might or might not be a witness."

(60) ANL haven't explained convincingly why it is necessary to name 5F. In Warby's judgment "at this stage", public disclosure would have little value as there is no guarantee that any of 5F will be winesses.

(61) Confidentiality can enhance freedom of expression or protect a whistle-blower from attack. In this case 5F sought to defend MM from hostile media coverage, and their anonymity not only protected them from adverse consequences but also increased the information available to the public about MM. (LOL, try disinformation! It was mostly lies and we all knew it!)

(62) "At this stage", continued anonymity is fine by Warby, as it upholds the agreement made with People and shields 5F from the "glare of publicity". However, "at trial, that is a price that may have to be paid in the interests of transparency." Disclosure could "undermine fairness and due process". Press articles can be misleading and inaccurate, citing a press article about JM and whether a "named individual" will still back MM in court after their recent falling out; this is the sort of pressure 5F would be under were their identities revealed.

(63) For these reasons Warby grants the application.

(64) Other things Warby is not prepared to address at this time.

The form of order

(65) These orders will remain in place until trial or further order. They will be kept under review, and re-considered at the Pre-Trial Review. Changes will be made as required in the light of changing circumstances.