February 2006
Chinese Whispers - When Royalty Goes to Court
Members of the royal family generally hold back from legal action for fear of courting unwanted publicity, but back in November 2005, the Prince of Wales had taken the unusual step of suing Associated Newspapers, the owner of The Mail on Sunday for breach of copyright and confidentiality over the publication of extracts from his private journals.
The newspaper had obtained a copy of extracts from one of Prince Charles' eight diaries, which contained his views on the 1997 handover of Hong Kong to the Chinese and China’s regime.
The documents handed to the paper included a 3,000-word journal the Prince titled “The Handover of Hong Kong” - or “The Great Chinese Takeaway”.
Embarrassing extracts contain the Prince’s descriptions of Chinese officials as "appalling old waxworks" and of a ceremony attended by the Chinese President, Jiang Zemin as an "awful Soviet-style" performance, with "goose-stepping" soldiers carrying out a "ridiculous rigmarole".
The Mail on Sunday denied it had breached confidentiality. It raised issues about freedom of the press and argued that the public had a right to know the views of the heir to the throne.
The Prince's legal team said Charles had given copies of his journals to family members, friends and advisers over the last 30 years in envelopes marked private and confidential. The Prince does not strive to influence political opinion. Like anybody else, the Prince of Wales is entitled to write a private journal without extracts being published. This journal was copied and passed to The Mail on Sunday without permission.
The Prince’s legal team applied for summary judgment, whereby a finding can be made without a trial if it can be shown that the defence has no chance of success. The Mail on Sunday resisted the claim and contested the summary judgment application. It had served a witness statement containing embarrassing allegations from Mark Bolland, a former deputy private secretary of the Prince between 1996 and 2002.
The Prince argued that Mr Bolland’s witness statement fell within the scope of express undertakings of confidentiality. The Prince therefore informed The Mail on Sunday that he intended to ask the judge to treat the contents of the witness statement as confidential. The Mail on Sunday argued that if the Prince intended to apply for an order protecting disclosure of the statement then an application for that purpose should be made on notice specifying the form of order sought. The Prince informed The Mail on Sunday that he would apply for an order restricting the use of confidential information on the application.
Associated Newspapers argued that they should be given a copy of the witness statement together with the notice of the application but the Prince submitted that it was unprecedented for the media to be provided with the evidence that was asserted to be confidential.
Mr Justice Richards held it was appropriate to list the confidentiality application at the same time as the summary judgment application. If the Prince was going to apply for a confidentiality order then he should do so by issuing and serve an application notice supported by evidence if necessary, on The Mail on Sunday not less than three clear days before the hearing of the summary judgment application. On the facts, it was appropriate for any application notice issued by the Prince to be supplied to Associated Newspapers; they would not be able to make full submissions if they did not have possession of the witness statement. On the other hand, it was unusual for the information to be supplied to the media before it had even been considered on the confidentiality application. The purpose of confidentiality was to prevent the wider disclosure of the information. In the circumstances of the application and considering the tight circle within which the media proposed to disseminate the information to, it was appropriate for Associated Newspapers to see the witness statement in advance of Prince Charles’s submissions.
Briffa's Opinion
Because of the high profile of the claimant and the issues of freedom of the press, the judge may call for a full trial.
This would then leave Prince Charles open to cross-examination in the witness box should he decide to give evidence.
The Prince has only initiated legal proceedings once before, when he obtained a High Court injunction banning the publication of a book by his former housekeeper.
Her Majesty the Queen sued The Sun and won damages in 1993 after the newspaper published her Christmas Day message in advance. Copies of the speech had been made available to the press under embargo. When The Sun decided to publish a sneak preview, the Queen made good use of the law of copyright to express her displeasure.
Last year, Adam Helliker was sacked as editor of The Mail on Sunday's diary for selling the private address book of Diana, Princess of Wales to a dealer in the United States.