A bid by the Duke of Sussex to rely on a “secret agreement” between Buckingham Palace and a tabloid publisher in his claim over alleged unlawful information gathering will be heard at the High Court.
Harry, 38, alleges he was targeted by journalists and private investigators working for The Sun and the now-defunct News Of The World, and is suing the publisher, News Group Newspapers (NGN).
The duke alleges he was targeted by journalists and private investigators working for the papers.
At a preliminary hearing in April, the publisher asked a judge to throw out his and Hollywood star Hugh Grant’s claim, arguing they were brought too late.
Mr Justice Fancourt ruled earlier this month that the actor’s claim could go to trial, except for any allegations relating to phone hacking.
Harry’s lawyers have argued that NGN’s challenge to his claim is an attempt to go behind the alleged “secret agreement” between the royal family as an institution and the publisher, which the duke was informed of in 2012.
NGN, which denies any unlawful activity took place at The Sun, disputes that such an agreement was in place.
Mr Justice Fancourt will hold a hearing in London on Wednesday to decide whether Harry’s pleaded case can be amended to include his secret agreement claims.
Mr Grant, 62, is bringing a similar legal action against NGN in relation to The Sun only, having previously settled a claim with the publisher in 2012 relating to the News Of The World.
The judge ruled in May that Mr Grant’s claims over alleged unlawful information gathering – other than his allegations of phone hacking – can go ahead to a trial in January.
During a three-day hearing in April, lawyers for NGN argued that Harry and Mr Grant had been “front and centre” of allegations against the publisher over hacking and therefore could not have failed to realise they had a potential damages claim much sooner.
Harry’s lawyers argued that, while he was aware of unlawful activity around 2012, he had no reason to think it had taken place at The Sun, and was prevented from bringing a claim because of a “secret agreement” between the royal family and senior NGN executives.
His barrister David Sherborne said in written arguments that the late Queen was involved in “discussions and authorisation” of the agreement, which was that members of the royal family would not pursue claims against NGN until after the conclusion of the litigation over hacking.
Mr Sherborne said the agreement “meant that the claimant could not bring a claim against NGN for phone hacking at that time”.
Anthony Hudson KC, for NGN, said the publisher’s position is that “there was no such secret agreement”.
Mr Justice Fancourt is expected to give his ruling on whether the duke’s claims can go ahead to trial after deciding on the “secret agreement” issue.
Mr Sherborne told the court in April that correspondence in 2017 and 2018 between the late Queen’s then-director of communications Sally Osman, Robert Thomson and Rebekah Brooks was “consistent” with there being such an agreement.
Ms Brooks is the chief executive of News UK and Mr Thomson is chief executive of News Corp, both parent companies of NGN owned by Rupert Murdoch.
Mr Sherborne pointed to emails between Ms Osman and the executives, in which Ms Osman raised the possibility of resolving “unfinished business” and said “the Queen was aware” they had spoken.
Mr Sherborne told the judge: “Your lordship will see why we say that is consistent with what the Duke of Sussex says in his witness statement about what he was told as to why he couldn’t bring a claim earlier than he did.”
He added: “He was kept out of the loop, as he says, and the reason he was kept out of the loop, and agreed to be kept out of the loop, is because of the secret agreement.”
Mr Hudson, for NGN, said in his concluding arguments to the court at the April hearing: “It is so clear in both cases that both of these claimants, with their very substantial knowledge and resources, could have both easily taken advice and collected evidence.”
Regarding Harry, he added: “He knew he had a claim in 2006, in 2012, and he was pushing hard to have that resolved in 2017 and 2018 before the wedding.
NGN has previously settled a number of claims since the phone-hacking scandal broke in relation to the News Of The World, which closed in 2011, but has consistently denied that any unlawful information-gathering took place at The Sun.
The hearing is due to start at 10.30am on Wednesday.
