England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/07/2015

Mr Justice Mann :

1. There are two effective applications before me today, both of them seeking the striking out of this action. The first is based on a limitation point, and the second is based on the premise that this claim can be seen to be not worth devoting any costs or court resources to it, under the principles appearing in Jameel v Dow Jones & Co [2005] QB 946.

Background

2. The claimant is a former royal butler. The defendant is a well-known publicist, whose activities include the generation, avoidance or control (depending on requirements) of publicity for his clients. In 2002 the claimant approached the defendant. According to the pleaded case of the claimant, he was minded to engage the defendant to manage and control some adverse publicity he was receiving or feared. He pleads that Mr Clifford asked him to write down information about Mr Burrell's relationship with various members of the Royal Family, which was germane to the publicity issues which Mr Clifford might have to manage. Mr Burrell therefore wrote a six page letter containing details of that relationship. It is unnecessary to set out that detail. It is said to contain information that was private which the Particulars of Claim lists under 4 headings – information about personal gifts which Mr Burrell received from members of the Royal Family, information concerning the Queen's interest in the birth of Mr Burrell's first son, details concerning a serious accident sustained by Mr Burrell in the US and the assistance given by the Queen in that respect, and information concerning his relationship with the Queen. According to the claimant, that information was given in confidence so that he could receive advice and assistance from Mr Clifford. It was not to be disclosed to third parties. It is common ground that Mr Clifford caused the letter to be faxed to Ms Rebekah Wade, then editor of the News of the World. That is the act complained of in these proceedings and it is said to have been a breach of confidence and/or an infringement of Mr Burrell's privacy rights, in respect of which he seeks damages, injunctive relief restraining further disclosure, delivery up and declaratory relief.
3. Mr Clifford admits sending the fax, but it is his pleaded case that he was approached so that he could broker the sale of Mr Burrell's story to a newspaper. It is admitted that the communications between Mr Burrell and Mr Clifford were confidential but it is also averred that the letter was written so that it could be used as a "pitch document" to enable negotiations about the sale of the story, so that it could be disclosed for that purpose. That is the defence to the confidentiality/privacy aspects of the claim, but the Defence also takes a limitation point and the point that the claim is an abuse of process as presenting no real prospect of recovering anything other than meaningless or minor remedies – the Jameel point.
4. The News of the World did not, apparently, report any story based on that fax. A copy of the fax found its way into the hands of at least one other journalist (Mr Clive Goodman, in whose documents it was found by the police much later) and it is said that it is likely that it will have been seen by other journalists; but it is not alleged that there was wider publication than that.
5. The claimant's Reply deals with the limitation point by relying on section 32 of the Limitation Act 1980.

The limitation point

6. Mr Burrell does not dispute that, in the absence of the application of section 32, his claim would be limitation-barred. However, he does plead reliance on section 32. The relevant part of his Reply reads:

"3. In regard to paragraph 1, the Claimant relies upon section 32 of the Limitation Act 1980. The relevant act was concealed from the Claimant and therefore the six-year limitation period did not begin to run until he discovered that the Defendant had used his private and confidential information in the manner complained of."

The pleaded case then goes on to aver that Mr Burrell knew nothing of the alleged breach of confidence by Mr Clifford in sending the fax until he received a copy of the fax from the Metropolitan Police Service on 28^th June 2012, or alternatively had a brief opportunity to read it when he visited New Scotland Yard a year previously to view a full lever-arch file of documents which had been obtained as a result of a criminal investigation into two particular individuals, on 22^nd June 2011. Mr Burrell's case is that he could not reasonably have known about the act until then, and the act had been concealed in the sense that it occurred in circumstances in which he would not have been likely to know about it for some time.

7. Section 32 of the Limitation Act 1980, so far as relevant, reads:

"32. Postponement of limitation period in case of fraud, concealment or mistake.

1) Subject to subsections (3) and (4A) below, where in the case of any action for which a period of limitation is prescribed by this Act, either -…(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant…

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it….

(2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty."

8. Mr Burrell's case on this section is simple. He says that the fax was sent without his knowledge or approval, and he was not told after the event that it had been sent. As appears above, his case is that he knew absolutely nothing about it until he was told about it by the police years later. In the circumstances the wrong, which was committed deliberately, was committed in circumstances in which it was unlikely to be discovered for some time. That is said to bring Mr Burrell within the provisions of section 32 which I have quoted above.
9. The case of the defendant on the point involves an assertion that the fax was provided to the News of the World with a view to publication of the information it contained, so that it cannot be said that the breach of duty was "unlikely to be discovered for some time". Miss Lorna Skinner, for Mr Clifford, submits that if, as Mr Burrell is said to contend, Mr Clifford sent the fax with a view to its contents being published then the fact that he had acted in breach of duty would have come to Mr Burrell's attention very shortly afterwards. In those circumstances it is said that Mr Burrell cannot bring himself within section 32(1)(b). The claim should therefore be struck out.
10. In my view this line of argument is unsustainable. Miss Skinner's argument relies on paragraph 12 of the Particulars of Claim which is said to contain some sort of averment that Mr Clifford sent the document to the News of the World for publication. The short answer to that is that paragraph 12 does not contain such an averment. It contains material from which it is said to be inferred that Mr Clifford discussed issues concerning Mr Burrell with Ms Wade and that he imparted information which had been given by Mr Burrell in confidence. It is alleged that Mr Clifford could gain influence by passing such information, and he was frequently in contact with tabloid editors. Nowhere is it actually alleged that Mr Clifford intended that there should be publication of the particular information in question. Accordingly, the argument breaks down at that stage.
11. However, even if Mr Clifford had had that intention, the argument would still fail, or at least it would not obviously be successful. What Mr Clifford did (on the claimant's case, which is what the defendant's point turns on) is pass on information covertly. The circumstances of the transmission were such that Mr Burrell would not know about it at the time, and would not know about it until someone told him that it had happened, or until something happened from which he could reasonably infer that it had happened. It was not apparent at the date of the wrong that there would be a publication, or when it would be. As it happened, there was no publication. Even if use of the information in a publication would have demonstrated its source (which does not necessarily follow), until that event Mr Burrell could not have known about the wrongful act. The period between the passing of the information and that unknown event seems (at least arguably, and in my present view almost inevitably) to be a period which is "for some time" for the purposes of subsection (2). Subsection (2), and thereby subsection (i), would thus be invoked.
12. For the defendant to be able to succeed in knocking out a limitation counter-point at this stage the position must be clear both as a matter of fact and as a matter of law. Neither of those is the case in the present matter, and in the circumstances this basis for striking out the claim fails.

The Jameel point

13. Miss Skinner's second point is that this claim can be seen to be one which is worth so little that it would be disproportionate for costs to be incurred in relation to it and/or for court resources to be devoted to determining it. Some additional facts form part of the background to this point.
14. Mr Burrell's complaint is that Mr Clifford sent to a newspaper some private information. As I have pointed out, it does not appear that that act actually triggered any publication – the newspaper did not publish a story based on it. However, in 2003 Mr Burrell himself put the sort of material which he complains about disclosure of into the public domain when he published his own book, an autobiography called "A Royal Duty". Various pages of that book were put in evidence, and it can be seen from those pages that information in all four categories of the information contained in the letter (summarised above) was disclosed by Mr Burrell himself. The book disclosed the fact of some gifts from the Royal Family, and identified some of them, but did not disclose all those referred to in the letter. Other than that, the book covers the ground covered by the letter (though generally in much more detail).
15. Furthermore, some time after the sending of the fax, the News of the World got hold of a confidential proof, or draft proof, prepared by Mr Burrell for the purposes of his defence of criminal proceedings, and published some of its contents. Miss Skinner was unable to say that that publication covered any of the same ground as the book and the fax, but submitted it was possible. Since the article was not in evidence before me this particular factual point (whatever it may be) cannot be established by evidence, and I shall ignore it.
16. As a result of the disclosures made to him by the Metropolitan Police, Mr Burrell started proceedings against the publishers of the News of the World based on an allegation that the newspaper hacked his mobile phone messages. He issued those proceedings on 3^rd October 2011. He sought third party disclosure from the Metropolitan Police, and obtained some disclosure relating to the phone hacking, but did not get a copy of the fax sent by Mr Clifford in that disclosure because the relevant order did not technically cover it. In due course he made a separate application and obtained the fax. At the end of 2012 Mr Burrell issued an application to amend his existing proceedings against the News of the World to introduce a claim based on receipt of the fax (as being private information) and also to add Mr Clifford as a defendant to those proceedings, making essentially the same claim against him as is now made in these proceedings. There was a hold up in dealing with those matters while the parties and the court worked out the consequences of a suggestion by the proprietor's solicitors that the original proceedings had not been validly served. In due course that was sorted out (in favour of a determination that they should be treated as having been validly served) and on or about 22^nd May 2014 the claim against the newspaper was settled. The terms of settlement have not been seen, but the defendant says it is likely that it settled both the phone-hacking claim and the claim based on receipt of the fax. What has been disclosed is a term in the settlement which reserves the right to continue to make claims against Mr Clifford. Because those proceedings were settled the application to join Mr Clifford was not dealt with, and it has not been dealt with to this day. Significant costs have been incurred by both sides in relation to the application. Mr Clifford claims to have been served with it and instructed lawyers to consider it.
17. Against that background, Mr Clifford seeks to strike out the present claim as an abuse of process. He invokes the jurisdiction in the Jameel case, and in particular the judgment of Lord Phillips MR at paragraph 54:

"54….An abuse of process is of concern not merely to the parties but to the court. It is no longer the role of the court simply to provide a level playing field and to referee whatever game the parties choose to play upon it. The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice."

18. He went on to quote the judge in Schellenberg v British Broadcasting Corporation [2000] EMLR 296, quoting it with approval at paragraph 57:

"I see no reason why such cases (libel actions) require to be subjected to a different pre-trial regime. It is necessary to apply the overriding objective even in those categories of litigation and in particular to have regard to proportionality. Here there are tens of thousands of pounds of costs at stake and several weeks of court time. I must therefore have regard to the possible benefits that might accrue to the claimant as rendering such a significant expenditure potentially worthwhile."

Lord Phillips went on:

"He added that the overriding objective's requirement for proportionality meant that he was bound to ask whether 'the game is worth the candle'. He [i.e. the trial judge in Schellenberg] concluded at p319:

'I am afraid I cannot accept that there is any realistic prospect of a trial yielding any tangible or legitimate advantage such as to outweigh the disadvantages for the parties in terms of expense, and the wider public in terms of court resources.'"

19. Miss Skinner went on to point to Lord Phillips' expression of his conclusion in that case:

"69. If the claimant succeeds in this action and is awarded a small amount of damages, it can perhaps be said that he will have achieved vindication for the damage done to his reputation in this country, but both the damage and the vindication would be minimal. The costs of the exercise will have been out of all proportion to what has been achieved. The game will not merely not have been worth the candle, it will not have been worth the wick."

20. Those sort of considerations have been applied in various other cases. In Sullivan v Bristol Film Studios Ltd [2012] EMLR 27 Lewison LJ held that the mere fact that a claim was small should not automatically result in the court refusing to hear it; the real question was whether there was some other form of procedure by which the merits of the claim could be investigated.

"32. In my judgment in principle a claim like Mr Soloman's could have been tried in the [Patents County Court] if its true value had been recognised at the outset. When in future a judge is confronted by an application to strike out a claim on the ground that the game is not worth the candle he or she should consider carefully whether there is a means by which the claim can be adjudicated without disproportionate expenditure."

21. Etherton LJ said:

"44. In the present case, had the court at the outset been aware of the true value of Mr Soloman's claim, consideration could and should have been given to transfer to the Patents County Court or to an appropriate County Court for (re-)allocation on the small claims track. Unfortunately, up until and at the hearing before the Deputy Judge, Mr Soloman has persisted in a grossly inflated value of his claims which ruled out those alternative routes. The consequence was that, by the time of the hearing before the Deputy Judge, considerable costs had already been incurred in the proceedings in the High Court and that fact, together with the increasingly apparent complexity and likely length of the proceedings, amply supported the Deputy Judge's exercise of discretion [to strike out the claim]."

22. Etherton LJ had previously said:

"40. For my part, I would emphasise that the disproportion justifying the strike-out of Mr Soloman's claim is not merely between the likely amount of damages he would recover if successful in the proceedings and the litigation costs of the parties. It includes consideration of the extent to which judicial and court resources would be taken up by the proceedings. That was the approach rightly taken by the Deputy Judge, who said in [27] of judgment that the proceedings would involve a large amount of court time and would cost a great deal of money to argue and would be a disproportionate use of the court's resources and unfair to the defendant."

23. Miss Skinner pointed to the likely costs and court resources involved in determining this case. A trial was estimated at a length of 2-3 days. The level of costs was to be high. Costs budgets had been filed, and as at that date Mr Burrell had already incurred costs of over £28,000 (plus VAT) and estimated that further base costs of £232,000 would be incurred. The claimant has given notice that he has instructed his solicitors and counsel on a conditional fee agreement, so there would be an uplift as well. The defendant's incurred costs were over £21,000 and the defendant's estimated costs to trial were over £125,000.
24. As against that, Miss Skinner pointed to what she says was the likely low level of damages in the case. This was said to be a one-off wrongful act which did not result in a publication. The amount of damages would therefore reflect the fact that disclosure was to a very limited number of people. She drew attention to a number of other cases in which privacy claims had resulted in only a small level of damages, and contrasted that with the serious invasions of privacy which resulted in substantial damages in my recent decision in Gulati v MGN Ltd [2015] EWHC 1482 (Ch). Furthermore, so far as Mr Burrell's case sought recovery of damages for distress, the amount of distress that he can realistically be said to have sustained would be significantly reduced by the fact that he himself had put the private information said to be contained in the letter and fax into the public domain when he published his book. That meant, in substance, that he did not have much of a distress claim. That, in turn, meant his damages claim was relatively slight. As for the other relief claimed, it was pointless. Mr Clifford had not apparently taken any steps to re-publish the letter since 2002, and he had indicated in his Defence that he did not intend to do so. That meant that an injunction was unnecessary and inappropriate. The declaratory relief, relating to the nature of the wrong, was equally unnecessary and inappropriate. It was said that all in all the likely relief he would be granted, assuming liability, was relatively slight, pointing strongly towards proceedings being an abuse in the Jameel sense.
25. Miss Skinner did not leave her case on Jameel there. She accepted that, taken by itself, the small size of any damages claimed probably did not render the proceedings an abuse. However, she added to that other factors which she says cumulatively made Jameel an abuse. The additional points she made were as follows:

i) The claim was a stale one.

ii) The information contained in the fax was not inherently confidential or private.

iii) The information in the fax was not sufficiently serious to engage Article 8 of the ECHR.

iv) The fax was published to a very limited number of people.

v) There is no evidence of any financial or other benefit accruing to the defendant.

vi) The fact that Mr Burrell had himself placed the material in the public domain meant that it should be inferred that he himself had no objection in principle to the information being disclosed for financial gain and in fact was willing to trade in it himself, and he made a substantial profit from doing so.

vii) Mr Burrell had been guilty of inordinate delay in progressing his claim. He acquired knowledge of it in 2011 yet did not issue these proceedings until October 2014. This increases the "staleness" of the action.

viii) Mr Burrell had already had one bite of the cherry, namely his apparently abandoned attempt to join Mr Clifford to the phone-hacking proceedings. That led the parties to incur substantial costs – the costs to the defendant of that exercise was said to be over £41,000.

ix) The reality was that this claim was being driven forward by the fact that Mr Burrell's solicitors were acting on a CFA which enabled them to recover an uplift. Accordingly, the gross disproportionality between the costs involved and the value of the claim would not have the usual deterrent effect that would operate in a traditionally funded case.

x) It appears (or so Miss Skinner said) that Mr Burrell recovered in settlement from the proprietor of the News of the World a sum which included compensation in part for the misuse of information within the News of the World. If that is right then the amount of damages that Mr Burrell could claim from Mr Clifford would be reduced even further.

26. I do not regard any of those factors as having very much weight in this context. Dealing with them briefly:

i) The claim is stale, but mainly by reason of the fact that the wrong was carried out covertly and its existence concealed until it happened to be revealed to Mr Burrell by the Metropolitan Police. He could not be expected to pursue the claim until he had actually got a copy of the document so that he could see what it was that had been done, and that did not occur until 2012. It is true that the claim was thereafter not progressed at an impressive speed, but part of the delay occurred in the joinder proceedings when there was delay arising out of a question mark about service, a point eventually resolved in his favour. When he settled the News of the World proceedings it was inevitable that he would have to abandon his application to join Mr Clifford to those proceedings and would have to take time starting these proceedings. In those circumstances I do not think that this point is at all compelling.

ii) and iii) A hearing such as this is not the place to have a debate about the extent to which the information in the letter was inherently private or confidential, or sufficiently serious to engage Article 8. In any event, on the facts which have to be assumed for the purposes of this application, the information was clearly imparted to Mr Clifford under a cloak of confidentiality and privacy. Accordingly, the information falls to be treated as having a serious confidential or private nature.

iv) This is really part of the "size of damage" point. It is true that this case does not have the seriousness of a case in which private information is disclosed to a newspaper and then published to a large readership, but that does not mean that the claim does not have value.

v) The absence of any financial or other benefit accruing to the newspaper seems to me to be irrelevant.

vi) This point does have some strength, depending on the motivation of Mr Burrell in subsequently publishing. If his subsequent publication was really an indication that he did not care much about the privacy of the information, then that would be capable of reducing the damages very significantly and making these proceedings questionable. However, through his solicitor Mr Burrell has explained that the matter is not as simple as that. When he decided to publish his book circumstances had changed. He had been the subject of a hostile media campaign and wished, because of his then personal circumstances, to publish his book. If that is right then it may be that the publication does not do much to damage the value of the original claim. All that is appropriately investigated at a trial. On the evidence this is not a factor which can be said at the moment to render the proceedings an abuse of process.

vii) I have already dealt with the question of delay when I dealt with the staleness (or lack of it) of this claim. There have been some delays but not such as to be significant for present purposes.

viii) I am afraid I fail to see how the previous bite of the cherry (if that is an appropriate metaphor) makes the present proceedings an abuse. The position is that Mr Burrell sought to sue Mr Clifford in what was no doubt perceived to be a cost-effective manner, namely joining him to an action against the newspaper. He then managed to settle the claim against the newspaper. That inevitably meant that Mr Clifford could no longer be sued in that action. A fresh action would have to be started. This is not having a second bite of the cherry; Mr Burrell never had a first bite.

ix) I agree that the costs which are said to be likely to be incurred in this case are very alarming. I also agree that, were it not for the existence of a CFA, it is much less likely that this claim would be brought through solicitors. However, it may be going a little far to say that the proceedings are "driven" by those solicitors if the suggestion is that they are driving these proceedings not in their client's best interests but in their own interests. The fact that they have more of an incentive to act in these proceedings at considerable cost than if they were not on a CFA might be thought to be one of the more regrettable consequences of the CFA regime. However, the financial benefit to solicitors exists, and it would be wrong to infer that that somehow improperly motivates the decision-making process in these proceedings. I also agree that the CFA means that there is less of a deterrent against bringing proceedings which are not particularly valuable. Again, however, that is a feature of the old-style CFA regime, and unless there is evidence of an improper motivation it does not make the proceedings an abuse.

x) It is, at least at the moment, impossible to know what, if any, proportion of the settlement sum presumably paid by News of the World (assuming that they settled on terms that the News of the World paid money) is attributable to misuse of private information within the newspaper. I strongly suspect it will never be possible to reach a conclusion about that. For present purposes it is not possible to give this factor much weight. It is merely one aspect of an assessment as to how substantial the damages in this case are likely to be.

27. All that means that the main Jameel factor in this case is the low level of damages. Miss Skinner said that it was likely that the damages in this case would be £10,000 or less. Mr William Bennett for Mr Burrell said that the damages claimed would be between £25,000 and £50,000. That meant it was a substantial claim.
28. It is not possible at this stage to be particularly confident about the size of damages in this case. Having said that, I agree with the thrust of a lot of what Miss Skinner said. This is a case in which the damages are likely to reflect two elements (assuming that Mr Burrell establishes the wrong alleged). The first is compensation for the wrong itself, and the second is compensation for distress and upset (and allied emotions). It is not clear that there is any, or any significant, aggravating factor which is likely to operate. As to the first, if the wrong is established then it was a serious wrong, because information which was clearly transmitted for one purpose was used for another. That is not something which is likely to sound in a small (in the sense of close to nominal) damages. Mr Bennett said his client would say that he experienced considerable upset and alarm when he discovered that someone who was supposed to be a trusted adviser had in fact betrayed him. One can imagine that, if the circumstances were such as Mr Burrell says they were, that would be the case, and the alarm and distress would be significant. However, when compared with the situation where alarm and distress arises from widespread publication of the information, that amount of alarm and distress is likely to be relatively small. I also accept that it is likely to be much reduced from what it otherwise might have been had Mr Burrell not put the private information in the public domain himself, for whatever reason. The fact of the matter is that, even on Mr Burrell's case, the distress will not have arisen from the revealing of private information which would never otherwise have been revealed. It would come from the premature revealing of private information in circumstances in which, within a year or 18 months, he had revealed it himself. He would be entitled to claim for distress and upset arising out of discovering a betrayal, but that seems to me to be arguably as far as it would go.
29. All that means that the damages in this case are not likely to be large. When compared with other cases (many of which were listed by Miss Skinner and which are referred to in my judgment in Gulati) it would seem to me to be unlikely in the extreme that they could be as much as £50,000. It might also be thought surprising that they would be as much as £25,000. However, whether they might be below that figure is more open to debate. However, what can be said is that the damages are not likely to be nugatory. That distinguishes this case from cases such as Sullivan where the court formed the view that Mr Sullivan would not be able to claim more than £50, and Jameel itself where it would appear that there was no real damage. It is not possible to reach similar conclusions in the present case. There is a real possibility of some substantial (in the sense of being more than nominal or minimal) damages if the claimant establishes the facts that he relies on.
30. That means that this case is not rendered an abuse of process by reason of a nugatory claim for damages in the absence of any other worthwhile claim for relief. The smallness of the damages claim is not a sufficient reason to say that a claim is an abuse of process. For the reasons given above, the other factors relied on by Miss Skinner do not bolster the abuse allegation. This conclusion is reinforced by the observations of Lewison LJ to the effect that the court has to consider whether there is a means by which the claim can be adjudicated without disproportionate expenditure. If there is not, then the court should hesitate for a long time before holding that maintaining the claim in this court is an abuse of process. Miss Skinner did not suggest any other means by which Mr Burrell could have redress if he had a claim.
31. I regard the levels of costs which might have to be incurred in these proceedings with considerable alarm. The undesirability of that level of costs is something to which the court must be alert, but there are other ways of dealing with that. First, a proper costs budgeting process should inevitably take into account the likely value of the claim. I do not intend to pre-judge the costs budgeting hearing in any way, but cannot resist saying that spending another £232,000 is prima facie not at all sensible, and I agree with Miss Skinner that a privately paying litigant without the benefit of a CFA would be highly unlikely to contemplate spending that money in these circumstances. Costs budgeting is therefore a way of trying to achieve a reduction in the disproportionality of the costs likely to be incurred and the amount of money at stake. Second, if the defendant is worried about his exposure to that amount of costs (perhaps doubled by the uplift) then it is open to the defendant to protect himself by a well-judged Part 36 offer. Third, proper case management should be able to keep the costs within sensible bounds. I shall consider giving directions for the future conduct of this matter at or after the hand-down of this judgment.

Conclusion

32. For the moment, because the claimant cannot be said to have an insubstantial damages claim, and even if (which I do not decide) the injunctive relief is really not important and the declaratory relief is nugatory, it still cannot be said that the claim is an abuse of process on the basis that it will require too much money, and too great a proportion of the court's resources, to determine. There is an arguable claim with a real prospect of more than nugatory damages. Techniques other than striking it out as an abuse will have to be deployed in order to achieve the necessary objective of the economic and proportionate disposition of this case.
33. In the circumstances I dismiss the defendant's application.