On 1 May 2020 Warby J handed down the judgment of a pre-trial application made by Associated Newspapers. The Claimant is bringing an action for misuse of private information, breaches of data protection rights and a claim for copyright infringement. The three causes of action all relate to articles published in the Mail on Sunday and Mail online about the content of a letter written by the Duchess to her father.
The Defendant sought to strike out certain parts of the Claimant’s pleaded case that alleged bad faith and dishonesty on the part of the Defendant. In essence the Defendant’s criticisms were:
- That the allegations were legally irrelevant to the causes of actions on which the Claimant relied;
- They were improperly pleaded; and
- That it would be disproportionate to litigate those issues.
Warby J agreed with the Defendant and struck out the offending passages.
At §33(3) of the judgment the Court discussed the meaning of CPR rule 3.4(2)(b), i.e. that the Court can strike out a statement of case or a part of a statement of case on the grounds that the statement “is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings”. Warby J noted that: “The previous rules, the Rules of the Supreme Court, allowed the court to strike out all or part of a statement of case if it was “scandalous”, a term which covered allegations of dishonesty or other wrongdoing that were irrelevant to the claim. The language is outmoded, but … the power to exclude such material remains.”
The Court’s judgment is interesting in itself as a distillation of some principles of privacy law. However, it is also a useful reminder about the importance of proper and skilful pleading. It has become depressingly common over the years to see allegations within Particulars of Claim that bear no actual relevance to the causes of action on which the parties rely. Too often pleadings go beyond a “concise statement of the facts” relied upon to establish a recognised cause of action and become a general grumble about conduct or perceived conduct.
In light of the Court’s judgment in The Duchess of Sussex the drafters of pleadings should pay close attention to what it is they actually need to prove to establish a claim or defence. If they go beyond that and include irrelevant allegations they risk having the offending sections of the claim struck out. Who will bear the costs of that strike out is an interesting question and no doubt fertile soil for satellite litigation.