Prince Harry, Associated Newspapers and the Problem of Proof

The High Court’s dismissal of the claims brought by Prince Harry, Baroness Lawrence, Sir Elton John and others against Associated Newspapers is one of the most significant media law decisions of recent years. Unsurprisingly, it has generated strong reactions. Prince Harry and Baroness Lawrence described the judgment as a “whitewash”, while Associated Newspapers understandably regarded it as a comprehensive vindication of its position.

The strength of feeling on both sides is easy to understand. The claimants spent years pursuing allegations that journalists and others connected with Associated Newspapers obtained information through unlawful means, including phone hacking, blagging, the use of private investigators and corrupt payments. Those allegations were serious, and the claimants clearly believed they raised important questions about how highly personal information had found its way into the public domain.

However, despite the inevitable headlines, what makes the judgment particularly significant is not the identity of the individuals involved but the court’s approach to evidence. At its core, this was a case about proof.  

Not a Technical Victory

One misconception that may develop in the aftermath of the judgment is that Associated Newspapers prevailed on procedural grounds. That is not really what happened. This was not a claim that was struck out before trial, nor was it defeated primarily by a limitation defence. The litigation proceeded through a lengthy trial in which witnesses were cross-examined, documentary evidence was examined in detail and extensive submissions were made on both sides. 

One of the more striking elements of the judgment is that, for most of the claims, the court did not need to rule on the limitation arguments because it had already concluded that the allegations were not proven. While there were some specific findings on limitation in relation to discrete parts of the litigation, the central reason the claims failed was that the court was not persuaded by the evidence. That distinction is important because it goes directly to the criticism that the claimants somehow failed to obtain a fair hearing. Whatever view one takes of the outcome, the allegations received full judicial scrutiny. The claimants had the opportunity to advance their case and challenge the evidence relied upon by the defendant. The court’s conclusion was simply that the allegations had not been established.

Serious Allegations Require Strong Evidence

The judgment also contains an important reminder about the burden of proof in civil litigation. Unlike criminal proceedings, the claimants did not need to prove their case beyond reasonable doubt. The applicable standard was the balance of probabilities. In simple terms, the court had to decide whether the alleged wrongdoing was more likely than not to have occurred. That does not mean, however, that courts approach all allegations in the same way. Where allegations involve conduct as serious as phone hacking, deception, corruption and unlawful information gathering, judges will expect evidence that is sufficiently strong and persuasive before making findings of wrongdoing.  

The court repeatedly returned to the distinction between suspicion and proof. Given the age of many of the allegations, the claimants’ case often relied on inference. The judge accepted that some suspicions may have been understandable. Nevertheless, suspicion alone could not bridge the evidential gap that remained. That point may ultimately prove to be the most important aspect of the decision. Historic privacy and media claims frequently encounter practical evidential difficulties. Documents disappear, memories fade and key witnesses may no longer be available. As time passes, it becomes increasingly difficult to establish precisely how information was obtained and whether unlawful methods were involved.

The challenge for the claimants was therefore not simply persuading the court that concerns existed. It was persuading the court that the available evidence was strong enough to support findings of liability.  

What About an Appeal?

The judgment may not represent the end of the litigation. The claimants remain entitled to seek permission to appeal, and Prince Harry has already made clear his profound disagreement with the court’s conclusions. Whether an appeal is pursued remains to be seen. If one does follow, it is worth remembering that appeals are not second trials. An appeal court will not simply rehear the evidence and decide whether it would have reached a different conclusion. Any challenge would need to identify a proper basis on which the judgment can be questioned. For that reason, there is an important difference between disagreeing with a judgment and successfully overturning one.

The Wider Significance

It is tempting to view the case entirely through the prism of Prince Harry’s long-running disputes with parts of the British media. In reality, its significance is wider than that. The court was not asked to conduct a public inquiry into press culture, nor was it tasked with deciding every allegation that has ever been made about the tabloid press. Its role was considerably narrower. It had to determine whether these claimants had proved these allegations against this defendant. After a lengthy trial, the answer was no. People will continue to disagree about what that means. Some will regard the outcome as a complete vindication for Associated Newspapers. Others will remain sympathetic to claimants who believe they were victims of unlawful conduct.

What cannot really be disputed, however, is the central lesson from the judgment. The court was not saying that concerns should never have been raised, nor was it criticising the claimants for asking difficult questions. It was saying something much narrower and much more fundamental: allegations, however serious, require evidence. Ultimately, that is why the case was lost. Not because the questions were incapable of being asked, but because the court concluded that the answers had not been proved. That may be an uncomfortable outcome for the claimants, but it reflects a principle that sits at the heart of the civil justice system. 

In the end, the case turned on an absence of proof rather than a failure of argument.

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