Confidence, privacy and a question of fax: butler's claim can't be struck out

Of note on account of the fact that it pitches one seasoned manipulator of the media against another is Paul Burrell v Max Clifford [2015] EWHC 2001 (Ch),  a High Court, Chancery Division, decision from England and Wales, delivered by Mr Justice Mann on Monday of this week. This blogpost is based on a note on subscription-based service Lawtel; the full judgment has not yet been uploaded on to BAILII.

Back in 2002 Paul Burrell, former royal butler and currently a minor celebrity, had approached Max Clifford, former publicity agent and currently a convicted sex offender, seeking Clifford's advice on how to manage some adverse publicity. Burrell wrote a letter containing details of his relationship with the royal family, which he allegedly gave Clifford in confidence so that Burrell could receive the benefit of Clifford's advice.  Clifford had the letter faxed to a tabloid newspaper editor.  Although the newspaper did not publish any story about it, Clifford argued that the letter had been written to enable negotiations to take place regarding the sale of Burrell's story to the newspaper. In 2003 Burrell published a book, A Royal Duty, that contained similar information to the content of his earlier letter. 

Not everything in the tabloid
press is to be believed

It was not until 2011 or 2012 that Burrell discovered that the letter had been faxed, when he obtained disclosure in relation to another action which he was bringing against the newspaper's publishers for phone hacking. He applied to join Clifford to those proceedings, alleging breach of confidence and breach of privacy -- but the action against the newspaper publishers was settled before the joinder application had been decided. At that stage Burrell had already incurred over £28,000 in costs in these proceedings and estimated his further base costs to be £232,000 under a conditional fee agreement (a.k.a. "no win, no fee").  In these proceedings Clifford applied to strike out Burrell's claims on the bases that (i) the limitation period was not postponed under the Limitation Act 1980 s.32 since Clifford had not concealed the sending of the fax and (ii) Burrell's action was an abuse of process as it presented no real prospect of recovering anything other than meaningless or minor remedies.

Mann J refused Clifford's application to strike out Burrell's claims. In his view

* Under the circumstances, Burrell would not have known of the transmission of the fax to the newspaper when it happened: it was not apparent at the date of the wrong that there would be a publication, or when it would be and -- until publication actually happened, Burrell could not have known that Clifford had sent the fax.

* The period between the fax's transmission and an unspecified future date on which its contents might be published was arguably a period which was "for some time" for the purposes of s.32(2) of the 1980 Act. For Clifford to succeed in knocking out a limitation counter-point at this stage, the position had to be clear as a matter of both fact and law; since it was not, that basis for striking out the claim had to fail.

* None of the factors relied on by Clifford to show an abuse of process under the principles in Dow Jones & Co Inc v Jameel [2005] EWCA Civ 75 had much weight.

* Burrell's claim was only stale because the breach of confidence had been concealed and the proceedings delayed by the joinder application.

* While Burrell's own publication in his 2003 book could indicate that he did not care about the privacy of the information, which could significantly reduce the damages, he claimed that the circumstances were different; that was a matter for investigation at a trial.

* The likely costs were very alarming but, without evidence of an improper motivation by the solicitors, that did not make the proceedings an abuse.

* As for the likely low level of damages that Burrell might expect to recover, the award would be likely to reflect compensation for the wrong itself and for distress and upset. If the wrong was established, then it was serious, since information transmitted for one purpose had been used for another -- and that was not likely to result in merely nominal damages.

* Alarm and distress would arise from the premature revelation of private information and, while damages might not extend to £25,000, they were unlikely to be nugatory; there was a real possibility of more than nominal or minimal damages if Burrell established the facts relied on and there was an arguable claim with a real prospect of more than nugatory damages -- which was not an abuse of process.

This Kat thinks that the decision is correct but still hopes that some sensible folk will sit down before trial and negotiate a settlement that will more financial sense than carrying on litigating on what may in reality be little more than a point of principle.

Paul Burrell's website here
The history of fax here
What the Butler Saw here and here