A lawyer for the Mail on Sunday accused Prince Harry of “approving” the newspaper’s “right to comment” during the couple’s latest libel battle.
Harry is suing Mail on Sunday and Mail Online publisher Associated Newspapers, seeking damages and an injunction over a February 2022 article headlined: “EXCLUSIVE: How Prince Harry tried to keep his legal battle with the government over police bodyguards SECRET hold… then – just minutes after the story came out, his PR machine tried to put a positive spin on the dispute.
In July, Supreme Court Justice Nicklin ruled that parts of the article were libelous because they alleged that Harry intended to mislead the public.
He said a reader would think Harry was “responsible for public statements made on his behalf alleging that he was willing to pay for police protection in the UK, and that his legal challenge was to challenge the government’s refusal to to allow him to do so, when the real situation, as evidenced by documents submitted in the court proceedings, was that he made the offer to pay only after the proceedings had begun”.
He also said the article would have been read as an allegation that Harry was “responsible for trying to mislead and confuse the public as to the true position, which was ironic given that he now had a public role in tackling of ‘misinformation'”.
Associated Newspapers are defending the case on an honest opinion basis under the Defamation Act 2013, arguing that Mail on Sunday assistant editor Kate Mansey approached the points in her piece as an “honest commentator”.
Prince Harry’s lawyers, however, are trying to have this defense dismissed, or a summary judgment ruled in his favour, on the grounds that the paper’s case is not strong enough to succeed at trial.
Associated Newspapers representative Andrew Caldecott KC told the Supreme Court on Friday that the publisher’s case was, in fact, a “strong one” and called Harry’s legal team’s position on several issues “completely unreasonable.” He claimed that “this whole thing is built on sand”.
He also argued that it was a fact that Harry had only offered to pay for his safety in the UK after submitting his application for a judicial review.
“The truth was that no offer of payment was made to the Home Office before the proceedings began,” Caldecott told the Supreme Court. “…it must follow as the night follows the day that the plaintiff did not challenge a previous decision of the Home Office not to charge him, but the Home Office had not received an offer to pay before the proceedings began .”
However, Harry’s representative Justin Rushbrooke KC said in a written argument that the newspaper was “unable to prove that [Harry] had only made an offer to pay police protection after the judicial review proceedings had begun, let alone evidence submitted in those proceedings showed that this was the case”.
Caldecott also claimed Harry’s legal team was “fundamentally twisted[ed]” the meaning given by the judge in his oral argument last year, with the effect of “the newspaper’s straitjacket right to comment.”
Rushbrooke responded that they were “not editing” the meaning, but that they disagreed on what it “had to say”.
Rushbrooke had said “there can be no doubt that the factual allegations on which the defamatory opinion is based fall essentially into two components”: the first “concerns a false allegation made by the plaintiff or on his behalf about his willingness to pay for police protection in the UK”, while the second was a “false claim about the nature of the legal challenge”.
“If the defense doesn’t even claim to show that [Harry’s] readiness [to pay] is true, then the defense can go nowhere in terms of supporting the objective fairness test,” said Rushbrooke. “We say it is on principle… and common sense and honesty.”
Caldecott, for the Mail on Sunday, claimed in his written argument that Mansey’s email to a representative of Harry before the article was published contained some “pertinent” questions. “There may be no obligation to answer them, but an honest commentator has a right to look at the lack of an answer,” he said.
In court documents, Rushbrooke claimed that other press coverage of Harry’s January 2022 judicial review statement “apparently neither stated nor implied that [his] legal challenge was to reject the government’s decision to refuse his offer to pay for police protection”.
However, Caldecott wrote in response: “If so, one may wonder why the tenor of the headlines and opening text of numerous reputable media entities covering the public statements is precisely this purpose.”
He told the court that it would be “extraordinary if large parts of the media collectively misinterpreted the press statement”. Rushbrooke claimed PA had the “wrong side of the stick,” but Caldecott said the agency had the “right side.”
PA had written in January 2022: “The Duke of Sussex has brought a claim for judicial review against a decision by the Home Office not to allow him to personally pay for police protection for himself and his family whilst in the UK is.” A BBC story said: “Prince Harry is seeking a judicial review of a Home Office refusal to allow him to pay in person for police protection when in the UK.”
And Omid Scobie, a journalist Rushbrooke says is sympathetic to the Sussexes, tweeted: “BREAKING: Prince Harry has sought a judicial review of a Home Office decision not to allow him to personally pay for police protection for himself and his family. when they are in the UK, a legal representative of the Sussexes confirms.
Harry has made no claim that these reports were “inaccurate” or “unfair” accounts of his public statements, and to this day, according to Caldecott, has made no effort to correct the record.
Caldecott said: “The Press Association was absolutely right to think that this is the pithy summary of what it’s all about. It’s simple: the duke wants him and his family to be safe and pay for the necessary security, but he can’t unless the Home Office approves his offer.’
The Mail on Sunday itself reported this statement in full following news of the judicial review. Mansey later, in an emailed request for comment, offered an opportunity to “consider and correct the inaccuracies in reporting elsewhere” by highlighting PA’s story and noting that the claim was not in the statement that was her provided, but she received no response, the paper’s argument goes.
That January statement to the press ended with a clear reference to the Mail on Sunday: “It is because of a leak in a British tabloid, with surreptitious timing, we feel it necessary to release a statement that sets the record straight” , it said.
However, Caldecott told the court that Mansey’s email asking for comment “had given a very honest … summary of what the judicial review process was about” and that “people clearly have a right to ask questions” about Harry’s application.
The court’s decision will come at a later date.
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