A battle royal on late applications for permission to amend (Duke of Sussex v News Group Newspapers Ltd)
The pleaded case of the Duke of Sussex (the Duke) against NGN in the Mobile Telephone Voicemail Interception Litigation (MTVIL) set out that relevant facts were concealed from him until 2018, such that his phone-hacking claim was not out of time.
However, in his witness statement dated 20 March 2023 opposing NGN's application for strike out/summary judgment (NGN's Application), the Duke described for the first time how there was a 'secret agreement' between Buckingham Palace and executives of NGN's parent company that members of the Royal Family would not bring phone-hacking claims against NGN and should wait until after the MTVIL was concluded, thereafter NGN would issue apologies and compensation to affected Royals. The Duke then issued applications for permission to amend his pleaded case set out in his reply and responses to NGN's Request for Further Information (the Duke's Application). In his judgment, Mr Justice Fancourt held there was not sufficient evidence for the newcase based on the secret agreement to justify the grant of permission to amend at the late stage in proceedings. The Duke was therefore unable to claim estoppel, and NGN's Application for summary judgment on the voicemail interception aspect of his claim succeeded.
What are the practical implications of this case?
This judgment highlights the importance of ensuring a claimant's pleaded case is entirely consistent with subsequent statements of case and witness evidence—‘[a]party is not permitted to plead alternative and inconsistent factual cases’. In the event that it becomes clear there are inconsistencies, these ought to be dealt with at the earliest opportunity.
In this instance, the Duke's Application was made at a late stage of the proceedings,more than two years after the reply, and 18 months after the Duke's responses to NGN's request for further information (RRFI) confirmed that his case on limitation was fully pleaded in his reply and made less than eight months before the likely trial date.
The overriding principle, regardless of the degree of lateness, is that the pleaded case must disclose a case that is more than merely arguable, and which has a real (as opposed to fanciful) prospect of success. Any amended pleading must be coherent and properly particularised establishing at least a prima facie case. Further, in the absence of a plausible evidential basis for the amendment there is a risk that permission to amend will be rejected.
In particular, practitioners should ensure that amendments do not impact the course of litigation. For late amendments, there is an additional focus of the disruption caused to the trial preparation process. If an amendment will cause significant disruption, then the party seeking the amendment will bear a ‘heavy onus’ to justify it (Swain-Mason v Mills & Reeve (Practice Note)  1 WLR 2735).
What was the background?
The Duke's claim is based on the tort of misuse of private information butencompasses phone hacking, blagging of private information and using private investigators (‘PIs’) to obtain private information. The Duke relied on section 32(1) of the Limitation Act 1980 (LA 1980) to argue that the facts were deliberately concealed. NGN averred that it was impossible for the Duke to contend he could not with reasonable diligence have discovered that he had a worthwhile claim to bring relating to all of NGN's alleged unlawful activities sooner than he did.
NGN's Application was heard over three days, together with its identical application in the MTVIL claim of Mr Hugh Grant (Limitation actually—section32(1) in misuse of private information claims (Grant v News Group Newspapers))
While judgment in respect of Mr Grant's claim was handed down in May 2023, the matter was adjourned for the Duke as a result of his applications relying on a secret agreement to contend that NGN is estopped from relying on a defence of limitation.
The Duke now alleges that in fact there was considerable activity in the Royal Household regarding voicemail interception claims. This information was contrary to the Duke's pleaded case, with the Duke accepting he was told before or around 2012 that there were likely to be further incepted voicemails involving him. However, healleges, given that there was a desire to keep the Royal Family out of litigation, there was an agreement made pursuant to which the Duke could not bring the voicemail interception claim that he could, and would otherwise, have brought.
What did the court decide?
Firstly, Fancourt J considered whether the Duke should be given permission to amend his Reply to plead an estoppel. In this type of application, the court will apply the test that a claimant needs to establish a serious issue to be tried, which means a case which has a real, as opposed to a fanciful, prospect of success (recently considered in Kawasaki Kishen Kaisha Ltd v James Kemball Ltd  EWCA Civ33). Further, the court must be satisfied by some credible evidence in support of, oropposing, the application that there is a sufficient foundation for what is alleged in the pleading.
Fancourt J found that there was no good explanation for the Duke's factual account changing and why he was unable to remember the secret agreement he was told about in 2012, only providing a draft amended Reply during the hearing of NGN's Application. This, together with the inconsistency with the Duke's current pleaded case (supported by two statements of truth) and the absence of any strong evidence that there was a secret agreement in place, led Fancourt J to refuse the Duke permission to amend the Reply, and the RRFI, to plead estoppel.
Secondly, he considered whether the Duke had a properly arguable case under LA1980, s 32(1). Fancourt J held that this aspect of his claim was time-barred; the Duke knew facts, or could with reasonable diligence have known facts, that would have led a reasonable person to conclude that there was a worthwhile claim for voicemail interception in about 2012. In respect of blagging and use of PIs, however,these issues shall be determined at trial.