It is the moment that senior executives at the Mail have been dreading: on Friday Mr Justice Nicklin ruled that the case brought against their publisher Associated Newspapers by Prince Harry, Elton John, Doreen Lawrence and others can continue.
The Daily Mail and the Mail on Sunday, which had so assiduously avoided being drawn into the scandal around newspaper practices faced by its rivals, will now be scrutinised in the high court and likely face weeks of difficult headlines, regardless of the outcome of the trial.
It is not a prospect that middle England’s newspaper will relish. Harry and co accuse it of bugging homes and cars, “blagging” phone, medical and financial records and breaking into private property. The claims were “preposterous smears”, Associated Newspapers said in October 2022, when the claims were filed.
A spokesperson said the lawsuit “appears to be nothing more than a pre-planned and orchestrated attempt to drag the Mail titles into the phone-hacking scandal concerning articles up to 30 years old”.
“These unsubstantiated and highly defamatory claims – based on no credible evidence – appear to be simply a fishing expedition by claimants and their lawyers, some of whom have already pursued cases elsewhere,” the spokesperson added.
The publisher’s lawyers had called for the entire case to be dismissed, saying it was outside a six-year time limit for legal action. But Nicklin swept that argument away on Friday, saying the claimants had “a real prospect” of showing unlawful acts were concealed and that they had been thrown “off the scent” by the newspaper’s own reporting and public statements.
But it is a partial victory only for Harry and his six co-claimants, who also include David Furnish, Sadie Frost, Liz Hurley and Simon Hughes. They suffered a significant blow when Nicklin ruled that their case could not use leaked copies of internal documents that were confidentially supplied by the Mail to the Leveson inquiry into the media in 2012. It was a “significant victory”, said the Mail’s publisher.
Many media watchers will agree. While the hacking cases that have embroiled Rupert Murdoch’s News UK and the Daily Mirror for the last 15 years dealt largely with the interception of voicemails, the allegations against Associated Newspapers appear to focus on the use of external private investigators.
The claimants argue the documents will come out at trial in due course and this aspect of the ruling is a pyrrhic victory for Associated Newspapers, adding: “If the Mail and the Mail on Sunday have nothing to hide … they should provide us with the ledgers voluntarily now.”
The case is likely to rely, to an extent, on the testimony of witnesses, some of whom already appear to be problematic. The celebrities’ lawyers said the private investigator Gavin Burrows, who both Harry and Lady Lawrence say was commissioned by the Mail to target them, provided evidence to them in 2021. But the court heard he later gave a signed witness statement “denying that he was commissioned or instructed by Associated to carry out any unlawful activity”.
“Mr Burrows has given two flatly contradictory statements to each side in this litigation,” said Nicklin in his judgment, a fact which he said could only be resolved at trial.
Many will ruminate on the implications of the ruling for Paul Dacre, editor of the Daily Mail for a quarter of a century and at the helm when these allegations are said to have taken place. Dacre, who pulled out of the running to be the next chair of the media regulator, Ofcom, in 2021 after concerns were raised about the transparency of the recruitment process, may not be able to avoid being dragged into the case, whether he wants to or not.
One outcome is sure: the legal bill will be eye-wateringly high – costing the Mail publisher as much as £5m if Harry and his co-complainants are successful at trial, according to Philippa Dempster, a privacy lawyer at Freeths. But it is the knock-on effect that is likely to be of greatest concern to Mail executives. News UK has paid hundreds of millions of pounds in costs and damages relating to phone hacking at the News of the World and the Sun: the Mail’s publishers will hope they can avoid a similar fate.
