Burrell v Clifford [2016] EWHC 294 (Ch)

[2016] EWHC 294 (Ch)

Case No HC-2014-000740

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 19 February 2016

Before

RICHARD SPEARMAN Q.C.

(sitting as a Deputy Judge of the Chancery Division)

Between

PAUL BURRELLClaimant

Defendant

________________

William Bennett (instructed by Taylor Hampton) for Claimant

Steven Barrett (instructed by Pitmans LLP) for Defendant

Hearing Hearing dates: 25 and 26 January 2016

________________

RICHARD SPEARMAN Q.C.:

Introduction

[1]This is the trial of a claim for breach of confidence and misuse of private information. The Claimant (“Mr Burrell”) was employed by the Royal Family for 21 years, and was, among other things, the butler to the late Diana, Princess of Wales, until her death in a road traffic accident on 31 August 1997. In November 1997, Mr Burrell was awarded the Royal Victorian Medal for services to the Royal Family, and he has since written a number of books, made a number of television and media appearances, and run a florist. The Defendant (“Mr Clifford”) was for many years a prominent and successful public relations consultant, operating through the medium of a company which was owned and controlled by him called Max Clifford Associates Limited (“MCA”).

[2]Mr Burrell was represented by William Bennett and Mr Clifford by Steven Barrett. They conducted the trial with efficiency and moderation. Their sensible written opening and closing submissions made it possible to limit speeches and oral argument to little more than one hour in total. I am grateful to both of them for their assistance.

Outline of the issues

[3]At the heart of the case is a letter written by Mr Burrell which comprises six pages of manuscript, although the second page is missing and nobody who gave evidence before me claimed to remember the precise contents of that page (“the Letter”). It is common ground that the contents of the Letter can be placed in the following categories:(i) Information concerning personal gifts from the Queen and the Duke of Edinburgh to Mr Burrell and his wife during the years for which Mr Burrell was employed by the Royal Family.

(ii) Information concerning the Queen’s interest in the birth of Mr Burrell’s first son.

(iii) Details concerning a serious accident suffered by Mr Burrell while in the USA with the Queen, his subsequent medical treatment, and the assistance given to him in that regard by the Queen.

(iv) Information concerning Mr Burrell’s relationship with the Queen.

[4]On a date which Mr Burrell originally put as in or around April or May 2001, but which by the time of the trial he accepted was in about April or May 2002, and following one or more meetings between the two of them, Mr Burrell sent the Letter to Mr Clifford.

[5]On 2 November 2002, the Letter was sent, together with a covering message, by fax (“the Fax”) to Rebekah Wade, the then editor of the News of the World. The accompanying message is signed “With love Anne Marie”, and it seems likely from Mr Clifford’s evidence that the individual who sent the Fax was his personal assistant.

[6]That communication was made with a view to interesting the News of the World in publishing a story utilising the information contained in the Letter, although no such publication in fact took place. The Letter contained information concerning Mr Burrell’s dealings with various members of the Royal Family which was not in the public domain at any of those times, and it was therefore both private and confidential.

[7]None of these matters is in dispute. However, what is very much in dispute is whether Mr Clifford, who does not deny personal responsibility for the sending of the Fax, did anything wrong in communicating the contents of the Letter to the News of the World.

[8]Accordingly, the central issue concerning liability in the case is whether or not that communication was authorised by Mr Burrell. Behind that issue are issues concerning the nature of the services which Mr Burrell approached Mr Clifford to provide, the purpose for which Mr Burrell sent the Letter to Mr Clifford, and whether any authority to disseminate the contents of the Letter which Mr Clifford may have had was still in existence on 2 November 2002 when the Fax was sent to Ms Wade. If liability is made out, there are issues as to the appropriate level of financial compensation. I am not concerned to decide non-pecuniary remedies, because the parties have agreed them.

[9]Mr Clifford’s pleaded case also raises an issue on limitation. There was no dispute between the parties that the applicable limitation period is one of six years, and that, in light of the fact that the Fax was sent on 2 November 2002 and the fact that the claim form was not issued until 16 October 2014, Mr Burrell’s claim is, on the face of it, time barred. However, it is Mr Burrell’s case that the Fax was sent without his knowledge or approval, and that he did not discover, and could not with reasonable diligence have discovered, that the Fax had been sent until either 22 June 2011 or 28 June 2012. Those were the dates on which, respectively, Mr Burrell was afforded an opportunity to read the Fax and was sent a copy of the Fax by the Metropolitan Police Service (“the MPS”). The background is that the MPS had obtained the Fax, and had first shown and later provided a copy of it to Mr Burrell, as part of the investigation into “phone-hacking”. In these circumstances, Mr Burrell relies on the provisions of section 32 of the Limitation Act 1980 as postponing the start of the limitation period until one or other of those dates, each of which is less than six years before the claim form was issued.

[10]I expressed the view at the start of the trial, and repeated it during closing submissions, that the argument based on limitation probably adds nothing to Mr Clifford’s case. In a nutshell, the essential difference between the parties as to their meetings in early 2002 is as follows. On the one hand, Mr Burrell contends that he consulted Mr Clifford to seek his assistance in combatting adverse publicity to which he and his family were being subjected in light of certain allegations which formed the subject of criminal proceedings against him. On the other hand, Mr Clifford contends that Mr Burrell consulted him to negotiate the sale of Mr Burrell’s story (although, because selling such a story might adversely affect Mr Burrell’s defence, Mr Clifford says that exercise had to be put on hold until after the conclusion of those criminal proceedings). If Mr Clifford is right on that issue, and on the further issue as to whether any authority that he had to market the story to a newspaper was terminated before the Fax was sent, then he has no need of the limitation defence. Conversely, if Mr Burrell succeeds on either of those issues, then the sending of the Fax was unauthorised, and it seems highly improbable that Mr Burrell would have waited to complain until 24 October 2012 (the date of his letter of claim to Mr Clifford) if the sending of the Fax had not been concealed from him in 2002. Accordingly, if the sending truly was unauthorised, it is on the face of it hard to see a basis for finding that Mr Clifford did not deliberately conceal from Mr Burrell facts involved in Mr Clifford’s breach of duty, and thus bring about a case of concealment for the purposes of section 32 of the Limitation Act 1980.

[11]At an earlier stage, Mr Clifford attempted to have this claim struck out on two grounds. First, that it is time barred. Second, that it is an abuse of process - because, in essence, there is no real prospect that Mr Burrell will recover any relief or remedy which is not out of all proportion to the trouble to the parties, costs and court time which will be expended in trying it (see Jameel v Dow Jones & Co

[2005] QB 846

). That application came before Mann J in June 2015, and was dismissed for reasons set out in a detailed reserved judgment dated 14 July 2015: Burrell v Clifford

[2015] EWHC 2001 (Ch)

[12]One of the arguments which Mann J had to consider was whether Mr Burrell could only hope to recover damages which are nugatory. Mann J held at [29] that “There is a real possibility of some substantial (in the sense of being more than nominal or minimal) damages if [Mr Burrell] establishes the facts that he relies on”. In Gulati v MGN Limited

[2015] EWHC 1482 (Ch)

(“Gulati”), Mann J had earlier carried out an extensive review of earlier authorities, and made a careful analysis of damages in cases concerning misuse of private information, and his decision was later affirmed by the Court of Appeal: Representative Claimants v MGN Limited

[2015] EWCA Civ 1291

(“Gulati Appeal”). I was informed that the defendants in Gulati Appeal are seeking permission to appeal to the Supreme Court, but at present the analysis in that case is the most recent and comprehensive in this area, and must be taken to be correct. On the basis of the materials and arguments before him in the present case, Mann J said that he agreed with the thrust of a lot of the points made on behalf of Mr Clifford as to the likely level of Mr Burrell’s damages. Mann J observed that it appeared unlikely in the extreme that the damages in the present case could be as much as £50,000; that it might be thought surprising if they were as much as £25,000; and that “whether they might be below that figure is more open to debate” (see [28]-[29]).

Criminal proceedings

[13]Both Mr Burrell and Mr Clifford have had encounters with the criminal justice system.

[14]On 18 January 2001, the police searched Mr Burrell’s home and he was arrested. On 16 August 2001, Mr Burrell was charged with stealing 342 items of property from the Royal Household, following the death of the Princess of Wales. Mr Burrell was tried at the Old Bailey. The first trial began on 14 October 2002 and ended with the jury being discharged on 16 October 2002. A re-trial began on 17 October 2002 and ended on 1 November 2002 with a “Not Guilty” verdict being entered on all charges. This followed the presentation by the Crown Prosecution Service of a certificate of Public Interest Immunity in respect of the disclosure of information in those proceedings. Those events constitute an important part of the background to the issues which I have to decide.

[15]Mr Clifford’s encounter is relevant for a different reason, namely that it is said to be germane to an assessment of his credibility. Many years after the events with which I am concerned, Mr Clifford was charged with a number of sexual offences. There were some counts on which he was acquitted or on which the jury were unable to agree. However, Mr Clifford was convicted on eight counts of indecent assault contrary to section 14(1) of the Sexual Offences Act 1956, which carried a maximum sentence of 2 years imprisonment. These convictions related to offences against four victims, aged between 15 and 20, which were perpetrated over about 7 years, all more than 30 years ago. The seriousness of these offences is apparent from the detailed sentencing remarks of His Honour Judge Leonard QC, and from the fact that Mr Clifford was sentenced to a total term of imprisonment of 8 years. It appears from those sentencing remarks that if these offences could have been prosecuted under later legislation, the maximum sentence would have been 10 years in some instances and life imprisonment in others.

[16]Mr Clifford appealed against that sentence, and his appeal was dismissed by the Court of Appeal: see R v Frank Maxwell Clifford

[2014] EWCA Crim 2245

. At [23], Treacy LJ identified one of the aggravating features of Mr Clifford’s offending as being that it “involved an abuse of a powerful position coupled with deceit”, and at [26] he said:

“It is clear, however, that over the period of offending, these young women were targeted by the appellant who actively misled them and exploited their desire to succeed in their careers for his own purposes. The appellant was a dominant personality and in a powerful position within the world of entertainment and media. This enabled him to do what he did and to convince the victims that there was no point in complaining because no one would listen to them. He was thus able to lead a double life, progressing in his career, whilst his victims, affected by what he had done to them, felt powerless to complain.”

[17]Mr Bennett relied on two aspects of these convictions. First, the nature of Mr Clifford’s offending revealed a clear pattern of deceit. Second, the nature of Mr Clifford’s defence to the charges involved not only a denial of guilt but also (as the sentencing remarks make plain) allegations that the complainants were lying (in one case “in order to obtain notoriety or money”) – all of which must have been rejected by the jury on the counts on which he was convicted. Mr Bennett submitted that Mr Clifford had been proven to be someone who would tell flagrant lies in pursuit of his own ends.

[18]When these matters were put to Mr Clifford in cross-examination in the present case, he maintained that the complainants were lying and that he had been wrongly convicted, and he stated that he was appealing against his conviction. During the course of closing submissions, Mr Barrett told me (on instructions) that there is in existence an application made by Mr Clifford’s criminal lawyers to the Court of Appeal for permission to appeal against conviction, apparently on the grounds of new evidence which was not available at the trial. If that is right, it would, or might, explain why an appeal against conviction is only now being made, when it seems to me that in the ordinary course it would typically be made together with an appeal against sentence.

[19]Unless and until any appeal against conviction succeeds, I consider that I ought to proceed on the basis that Mr Clifford was rightly convicted, and that, accordingly, he was dishonest both towards his victims and in the conduct of his criminal defence. Even so, there is still an issue as to the extent to which his propensity for dishonesty revealed in that context is relevant and helpful when assessing his credibility in the present case.

[20]In all the circumstances, I have sought, in the first instance, to appraise Mr Clifford’s credibility in the present case divorced from consideration of this criminal history, and only then in addition to have regard to what may be gleaned from his criminal trial.

The witnesses

[21]Both Mr Burrell and Mr Clifford have experience of presenting an image to the public. Further, the events which are at the heart of this case took place in 2002, and were not brought back to the minds of either of the protagonists until about a decade after they had occurred. I consider that in any case involving such a lapse of time there is a heightened risk that witnesses may be genuine but mistaken about what took place, and may give evidence about what they would like to think happened rather than what they can truly recollect. These factors made my appraisal of their evidence more difficult.

[22]Judging by his demeanour alone, I do not consider that Mr Burrell was in any way dishonest. However, I consider that he is self-absorbed, and prone to seeing himself as always in the right. He was willing to make concessions when inconsistencies in his evidence were put to him in cross-examination, but sought to play them down as far as he could. For these reasons, but even more importantly for the specific reasons that are discussed below, I do not consider that his evidence was reliable in every respect.

[23]Mr Clifford made no real concessions in cross-examination. If anything, the more he was challenged the more he asserted that he was in the right and Mr Burrell was in the wrong – at one stage saying words to the effect that Mr Burrell knew that he was lying and could not look him the eye in court for that reason. His demeanour seemed quite aggressive at times, and did not assist him in my perception. In addition, Mr Clifford readily accepted that he had often dissembled, and had been at the very least “economical with the truth”, in his dealings with the media over the years. It is therefore apparent to me that deception is second nature to Mr Clifford, even without regard to the history of his criminal prosecution, which can only serve to underline the point. However, it naturally does not follow that he was not telling the truth before me.

[24]At the end of the day, I consider that the best guide to the truth is to be found not so much in the demeanour of the protagonists (although, in so far as that is relevant, I set more store by the dependability of Mr Burrell), but in such scant contemporary documents as remain available and in an objective appraisal of the probabilities overall.

[25]David Warwick was called in support of Mr Burrell’s case. Mr Warwick is based in Cheshire, runs a media management company or firm called David Anthony Productions, and has been working in this field for almost 40 years. He made a good impression on me. He gave his evidence straightforwardly, and was a reliable witness.

[26]Lucy Heather was called in support of Mr Clifford’s case. Ms Heather worked for MCA between December 2001 and July 2009, and now runs her own public relations business in Reading. Under cross-examination, she gave her evidence with confidence, and I do not consider that she was deliberately misleading in any way. However, she was first asked about the material events very shortly before she made her witness statement on 13 January 2016, she had dealings with many clients and stories while she was at MCA, and she said 2002 was a prestigious year for MCA in which (as I infer) Mr Burrell’s story would not have stood out: she said that she would not describe it as “dynamite” and that it was “one of many”. I have doubts whether her claims that “I recall the Claimant, Mr Burrell, coming into the office to see Mr Clifford in 2002 specifically with the purpose of selling a story to the media. I am 100% sure that Mr Burrell came to see Mr Clifford to sell a story, and not to instruct MCA for PR-related services” are truly based on a clear recollection of events rather than reconstruction.

Mr Burrell’s evidence

[27]Mr Burrell explained in his witness statement that he was recommended to Mr Clifford by a well-known journalist, Peter Sissons. The background was that, following the death of the Princess of Wales, Mr Burrell found that he was the subject of a lot of very negative publicity in the media, which caused him a great deal of stress and upset. The basis of Mr Sissons’ recommendation was that if Mr Burrell had to fight a public battle, Mr Clifford would be the best man to have on his side. Mr Burrell went to Mr Clifford’s office for an initial meeting and, to the best of his recollection, on one further occasion. At the initial meeting, Mr Burrell met Mr Clifford’s daughter at the office before Mr Clifford took him into a private office where they had a one-on-one meeting which lasted roughly half an hour.

[28]During the meeting, Mr Clifford said that in order for him to represent Mr Burrell he had to know more about him, and that Mr Burrell had to trust him with his innermost secrets, because all his clients did that. Mr Clifford asked Mr Burrell to go away and write down all his secrets that were not in the public domain. Mr Clifford said that, as Mr Burrell’s agent, he would need to know his secrets so that he could defend him. Mr Clifford instructed Mr Burrell to write as much as he could, specifically in relation to his close relationship with the Queen and the Princess of Wales, including gifts that Mr Burrell and his wife had received from them. Mr Clifford said words to the effect “Go away and give me an idea of what I’m dealing with. I will keep it safe, don’t worry, you can be open with me, there are bigger secrets in my safe”. Mr Burrell shook hands with Mr Clifford and then went away and wrote the Letter to Mr Clifford.

[29]The text of the Letter which is still available reads as follows (with paragraph numbers and other details such as the place where text is missing added for ease of reference):

“Max, 1. Marla and I have given great thought to the gifts which we were given by The Queen and Duke of Edinburgh during our 12 years service, as personal servants. 2. As you know, we were the first couple to be allowed to stay in service after we were married. Previously the woman had to leave service. The Queen changed that "archaic" rule for us! 3. She took great interest in our marriage preparations and she and The Duke gave us special wedding presents - A pair of coalpoint handpainted candlesticks (china) each with his cypher and one with hers. Also a carriage clock to the sides of which were gold-enamelled “EIIR" and "P" given to us at a special audience. 4. Our first son, Alex, took two days to arrive. The Queen insisted that hergynaecologist be kept in touch and all proceedings were re-layed through her. Subsequently we took Alex (2 days old) to see her and again privately she "welcomed him into the world" [letter page 2] – missing [letter page 3:] 5. I know that you wanted me to concentrate on valuable gifts, but I feel that “unprecedented gestures" were far more valuable inside royal circles. After all, the Queen did not go out of her way for anyone!! 6. Whilst with H.M. visiting her brood-mares in Kentucky, I had a serious accident and fell down the staircase of the home of our hosts 'Will Farrish' at Lanes End in Lexington. (He is now the American Ambassador in London.) 7. The Royal Party were at dinner - and heard this almighty noise as I fell down two flights of stairs. 8. The Queen found me in a crumpled heap. The ambulance was summoned [letter page 4:] 9. and with guests staring, I was whisked off to hospital. Lord Porchester, later to become Earl Carnaven was with us (he was her racing manager!). 10. After great consultation with the neuro-surgeon - they discovered I was paralised below the waist and may never walk again. 11. Quick thinking, and an emergency operation within the hour, released the cyatic nerve - and in time I learned to walk again. 12. I had two choices, at the moment of the accident have the operation or come home and have it. 13. The Queen said that she could not take the responsibility and commanded me to have the op in America. 14. She paid the hospital bill - running into thousands of dollars [letter page 5:] 15. and sent her new aeroplane the BAE: 146 - which even she hadn't flown (she used the Andover's) 16. It was re-fitted as a hospital unit - and as a training exercise (BAE aeroplanes have to clock up so many miles before royals can fly aboard) It came for me and brought me home in style. 17. She was, of course, caring, considerate and kind to us all. 18. In return, we gave her loyal and devoted service. 19. So perhaps its not the nature of the expensive gifts which we should concentrate on, but the kindness and concern shown to us – 20. After all it was not only the Princess chose a coal miners son as her aide and confidante – but [letter page 6:] 21. The Queen of England too ... 22. Surely both could not be bad judges of character ..... Hope that this is of some use P.” [letter page 2] – missing [letter page 3:] [letter page 4:] [letter page 5:] [letter page 6:] Hope that this is of some use P.”

Hope that this is of some use

[30]When he wrote the Letter, Mr Burrell was extremely nervous about what to include, because the contents were extremely personal to him and concerned his personal relationship with the Royal Family. At this time, he had not spoken in public about this and he was very nervous about divulging this information.

[31]Mr Burrell considered that the Letter contained extremely private and confidential information concerning his relationship with the Queen and the Duke of Edinburgh: it outlined personal gifts which he and his family had received from them over the years; it explained the Queen’s interest in the birth of his first son; it set out the support that he had received from the Queen after he suffered a serious accident when in the USA in her service and the subsequent medical treatment that he had received; and it illustrated by these personal examples “how close a bond my family had with the Royal Family”. Mr Burrell “tried to provide intimate details of our relationship” because Mr Clifford had specifically asked to know how close Mr Burrell was to the Royal Family “so that he could defend me”.

[32]Mr Burrell sent the Letter to Mr Clifford as a matter of trust and because Mr Clifford had assured Mr Burrell that he would keep Mr Burrell’s secrets safe, and indeed on the understanding that the Letter as a physical item would be kept in Mr Clifford’s safe.

[33]On 16 August 2001 Mr Burrell was charged with theft relating to possessions of the late Princess of Wales. This was a hugely stressful time in his life. He was under enormous pressure, and his mental state preceding his trial was such that he contemplated suicide.

[34]Mr Burrell states:

“I remember calling my QC, Lord Carlile, and explaining that [Mr Clifford] was representing me. He was very angry and told me words to the effect of “if that man is representing you, I can’t represent you.”

I had to choose between [Mr Clifford] and Lord Carlile. It was an obvious choice for me even though I dreaded having to make the call to [Mr Clifford]”.

[35]Mr Burrell further states:

“… I called [Mr Clifford] to terminate my relationship with him. He went ballistic. He said words to the effect of “I am very disappointed in you. You should grow balls and stand up and be a man and tell Lord Carlile what you want, this is about you not about him”

. He was very bullish. I remember apologising to him and explaining that I needed Lord Carlile as he was my QC and was defending me against criminal charges. I think he slammed the phone down. He gave me the impression I had wasted his time. It was not a very pleasant conversation.” Under cross-examination, Mr Burrell added further details to this account, saying that he could remember that he had called Mr Clifford on a mobile telephone from the back of a taxi.

[36]Following his acquittal on 1 November 2002, there was intense competition among rival tabloid newspapers to buy the rights to Mr Burrell’s story. He was being approached by newspapers offering to pay him large sums of money for his story about the Royal Family, particularly in relation to the Princess of Wales. Among other things, Mr Burrell’s brother was approached by the News of the World, who offered to pay Mr Burrell £450,000 for his story, but he refused to sell his story to the News of the World.

[37]It would appear that around this time the publishers of the News of the World obtained sight of Mr Burrell’s proof of evidence made in connection with his criminal defence. This emerged when information taken from that proof of evidence was published in the edition of the News of the World dated 3 November 2002. This was not known to Mr Burrell, and there is no suggestion that it was known to Mr Clifford, at the time that the Fax was sent to Ms Wade on 2 November 2002. Mr Burrell was compelled to apply for an injunction seeking the return of his proof of evidence and to restrain further publication of its contents. (As it happens, I represented the publishers of the News of the World on that occasion - so far as I can recall, without success. I explained this at the start of the trial, and also that over the years I have done a lot of other work for those publishers, but the parties raised no objection to me trying the present case.)

[38]From the moment of his acquittal, the media placed Mr Burrell under immense pressure to comment. He decided to speak to the Daily Mirror so that “I could set the record straight in my own words and defend myself against the many lies and untruths being published about me. The trial was so public and I was acquitted before I gave my defence therefore I felt it was necessary to explain my innocence of the criminal charges to the public”. Mr Burrell chose the Daily Mirror to tell his side of the story – which involved explaining that he was “positively innocent” and criticising the way in which he had been prosecuted, and, in particular, the role of the Spencer family in that prosecution - even though the Daily Mirror’s offer of £300,000 was less than he was being offered for “telling all” because “I trusted them and believed that they would tell my story with dignity and honestly which was unbelievably important to me”.

[39]Mr Burrell’s reticence about publicising, for money, the contents of the Letter (and much other information concerning his dealings with the Royal Family) did not endure. Mr Burrell’s autobiography “A Royal Duty” (“the Book”) was published in October 2003. The Book was not in evidence before me, but extracts of it were seen by Mann J. He said: “The book disclosed the fact of some gifts from the Royal Family, and identified some of them, but did not disclose all those referred to in the letter. Other than that, the book covers the ground covered by the letter (though generally in much more detail” (Burrell v Clifford

[2015] EWHC 2011 (Ch)

at [14]).

[40]Mr Burrell decided to write the Book in order to demonstrate that, rather than being a person who stole objects from the Royal Family, he was a trusted servant who was treated with great kindness by them. By the time the Book was published, he was “in a very vulnerable place”. Mr Burrell had “endured public scrutiny of the most intimate details of my professional and personal life”; “been subjected to a cruel campaign of vilification by the media”; and “withstood a criminal investigation for the theft of items from the Royal Family and two unsuccessful prosecutions at the Old Bailey”. The prosecution case against him had been widely publicised in the media. Also, a proof of evidence containing confidential information relating to his criminal defence had been published in the News of the World, which caused him great distress.

[41]Mr Burrell stated that he was outraged and deeply upset by Mr Clifford’s actions. He was sickened to learn that Mr Clifford had breached the trust that he placed in him, and for commercial gain. The fact that he had later decided to put the same information in the public domain in the Book did not make him feel any less upset by Mr Clifford’s actions. If he had known about the Fax at the time, he would have sought an injunction against the News of the World, just as he did in respect of his proof of evidence.

[42]In cross-examination, Mr Burrell did not resile from this evidence to any significant extent. He denied that, in reality, he had completely forgotten what had happened. He said that his account of his meetings with Mr Clifford was not fanciful, but was the truth. He said that he understood that Mr Clifford offered “Broker Services” and “PR Services”, denied that he was confused between the two, and was clear that he was engaging Mr Clifford for PR Services alone and had not asked him to carry out Broker Services as well. However, he conceded that he had never been asked for a fee for PR Services by Mr Clifford, that if asked “I would not have been able to afford it”, and that “I suppose it’s true that [for PR Services] he would have asked for a fee”.

[43]When challenged about whether he had written down “all his secrets” in the Letter, Mr Burrell said it contained matters which were private and personal to him. He denied that the Letter was a pitch document, or that he had written it as he did because he thought the contents would be of interest to the Press. In response to the suggestion that none of the items mentioned in the Letter were “expensive gifts” he replied “They are to me”.

[44]Mr Burrell denied that his anger and hurt feelings did not arise for the reasons he had given, but instead arose because the story he had given Mr Clifford did not sell. He denied any inconsistency between his claim that Mr Clifford should not have tried to market the contents of the Letter and his willingness to sell a story to the Daily Mirror and his decision to write the Book (which he said took 6 months to write). He accepted that before his criminal trial he had been earning an income by writing a column in the Daily Mail from 1999-2000, giving occasional after dinner speeches, and by writing a book, but he said that he was not investigating the sale of stories to the Press at any time before his criminal trial. He said that his feelings of betrayal and distress were genuine. He said that he did not ask for the Letter back because he trusted Mr Clifford.

The issue about dates

[45]In the above summary, I have deliberately omitted a number of dates, which formed the basis of a major part of Mr Burrell’s cross-examination by Mr Barrett.

[46]In Mr Burrell’s case as originally formulated, he put forward the following time line in documents which he verified in each instance by a statement of truth:(i) his initial contact with Mr Clifford took place “in or around April or May 2001” (see paragraph 5 of the Particulars of Claim dated 29 May 2014, and paragraph 5 of his first witness statement dated 21 December 2015);

(ii) he sent the Letter to Mr Clifford “sometime in April or May 2001”, shortly after his meeting with Mr Clifford (see paragraphs 3 and 10 of his first witness statement); and

(iii) he terminated his relationship with Mr Clifford “sometime between January and March 2002” (see paragraph 10 of the Particulars of Claim, and paragraph 13 of his first witness statement).

[47]In Mr Clifford’s pleaded Defence dated 30 January 2015, he contended that Mr Burrell and he “did not meet at [his] offices in April or May 2001 but they did meet on 12, 15 and 22 April 2002” (see paragraph 9(a) of the Defence). Mr Burrell’s Reply dated 20 February 2015 pleads various matters in response to the limitation defence raised by Mr Clifford, but otherwise contains no more than a general joinder of issue on the Defence.

[48]In his witness statement dated 18 December 2015, Mr Clifford re-iterated (at paragraph 6) his belief that he first met Mr Burrell not in 2001 but on 12, 15 and 22 April 2002.

[49]Following the exchange of witness statements, Mr Burrell made a second witness statement dated 19 January 2016. In paragraph 2 of that witness statement Mr Burrell referred to press cuttings which had been disclosed by Mr Burrell after he had made his first witness statement, which he said had “refreshed my memory about what happened in 2002”. In paragraph 3, Mr Burrell explained that, while he had originally believed that he had met Mr Clifford in April or May 2001, he now believed that he met him in April 2002 “having now had sight of the press cuttings from May 2002”.

[50]It is understandable that anyone could make a mistake about events which happened so long ago. It is also possible that, once a mistake is made about dates, that mistake may become embedded in the case materials and be repeated without careful consideration.

[51]The tenor of Mr Burrell’s answers in cross-examination was “I made a mistake with the date”. Mr Burrell also said “I know our relationship was only 3 to 4 days old and that it was in April-May 2002 that I terminated the relationship [with Mr Clifford]”.

[52]In my judgment, however, there is no escape from the conclusion that this repeated error about the time line seriously undermines Mr Burrell’s reliability and, thus, his case. It is important to put this error in context. It had the effect that, from the time the Particulars of Claim was signed (although it seems only to have been served on 16 October 2014) until 19 January 2016, Mr Burrell was putting forward a case that, having approached Mr Clifford solely for the purpose of providing him with a public relations services, he had not terminated his relationship with Mr Clifford until almost a year after he had approached Mr Clifford, and that this termination had occurred before April 2002. Mr Burrell’s pleaded case, and, subsequently, his first witness statement set out a clear chronology, in which (among other things) his meetings with Mr Clifford are said to have preceded the date when he was charged with theft on 16 August 2001.

[53]Standing back, Mr Burrell’s original case on dates makes no sense in light of the fact that Mr Burrell does not contend either(a) that Mr Clifford ever did anything between about April or May 2001 and January to March 2002 to provide protection from the unwanted media attention to which Mr Burrell and his family were subjected or

(b) that Mr Burrell ever made, or even agreed to make, any payment to Mr Clifford for the provision of services. Indeed, Mr Burrell’s evidence when cross-examined was that “Payment was never discussed”. However, what concerns me is that, before verifying that case with more than one statement of truth, Mr Burrell seems never to have paused to reflect how implausible it was. Instead, he seems only to have been prepared to accept that his initial case was wrong when he considered a number of contemporary press cuttings which were disclosed by him shortly before the trial but which, so far as I can see, Mr Burrell could have researched for himself initially or at least at the stage of deciding how to respond to Mr Clifford’s Defence.

Mr Warwick’s evidence

[54]Mr Warwick acts for a range of clients. At the time when he first met Mr Burrell he was looking for clients who could satisfy a demand for so-called “experts with passion” in their respective fields, rather than more traditional “all-round” presenters. At the time of his arrest, Mr Burrell had been working with Paul Colbert as such a presenter on a television programme called “Burrell’s Britain”, which concerned stately homes and etiquette and had a Royal dimension. Mr Colbert was a good friend of Mr Warwick, and introduced Mr Burrell to him in about October 2002. Initially, Mr Warwick was not interested in taking on Mr Burrell, but, having met him, he changed his mind. Mr Warwick told Mr Burrell what his agency was actively looking for and explained that he would be interested in taking him on if Mr Burrell wanted him to, but that this could not happen prior to the outcome of his criminal case. A week or so later, Mr Warwick met Mr Burrell again, this time with his wife. At no point during either meeting did Mr Burrell say that he wanted to sell his story and at no point was his story even discussed.

[55]During the course of their meetings, Mr Burrell said that he needed someone to look after him. Mr Warwick and he discussed how journalists would come looking for him following the outcome of his criminal trial and that, should he be convicted, this would include his family and anyone who had ever touched his life. They discussed how, if the trial went the wrong way, Mr Warwick would be prepared to look after Mr Burrell’s wife and his sons and would help them through the media frenzy. This would include dealing with any journalists outside their house or at their flower shop, by being a point of contact instead of them for all media enquiries, dealing with the Press Complaints Commission if required, formulating a press statement, and training his wife on how to deal with any journalists by referring them to Mr Warwick. Mr Warwick describes Mr Burrell’s wife as “a down-to-earth church-going lady with two sons who had no experience or understanding of how to deal with the media”. The two men also discussed the potential media opportunities for Mr Burrell should the trial go well. However, this was very much in the context of Mr Burrell being an “expert with passion” and at no point during this period was his story or selling the same discussed.

[56]As matters transpired, the trial went favourably for Mr Burrell. Mr Warwick remembers receiving a telephone call on the day that Mr Burrell was acquitted, Friday 1 November 2002, to say that he wanted Mr Warwick as his agent. Mr Warwick then put out a press release the same day to inform the media that he was representing Mr Burrell, that is to say that he would be generally looking after Mr Burrell and dealing with all media enquiries. This press release did not mean that Mr Burrell was intending to sell his story, which he and Mr Warwick had still not discussed at that time.

[57]What then followed for the next few days was a media frenzy, with journalists from the UK, the USA, and all over the world calling, e-mailing, and door-stepping Mr Warwick trying to get Mr Burrell’s story. Because Mr Warwick had not had any conversations with Mr Burrell about selling his story, Mr Warwick simply said that he would take instructions and relayed what offers were coming in to Mr Burrell so that he could make a decision as to what he wanted to do. Mr Warwick felt that Mr Burrell was amazed that there was so much media interest in him, and that he had not anticipated the level of interest in his story: “He never realised how much in demand he would be”.

[58]Throughout this period, Mr Warwick acted as Mr Burrell’s sole agent, and the intense media interest in Mr Burrell meant that the two of them had to be in constant contact with each other by telephone from his acquittal on Friday 1 November 2002 until Monday 4 November 2002, when Mr Burrell made a deal to speak to the Daily Mirror.

[59]When Mr Burrell reached an agreement with the Daily Mirror on 4 November 2002, he did so for £300,000, which was considerably less than the sums offered by rival publications, including an offer of £1,000,000 for a “tell all” account. This was because Piers Morgan, the then editor of the Daily Mirror, was very happy for Mr Burrell to tell his own story in his own way of his trial and what it was like to be arrested and of the immense pressure that he had been under, as opposed to wanting Mr Burrell to divulge secrets regarding the Royal Family, which is what other media outlets were requiring. While other media had wanted much more than Mr Burrell was prepared to give, it was “incredibly important” to Mr Burrell to have control over the story, which the Daily Mirror offered him. Mr Burrell decided to speak to the Daily Mirror because it was an opportunity for him to set the record straight after his criminal case had collapsed: “It gave him the opportunity to put forward his defence to the allegations made”.

[60]Mr Warwick’s evidence was not dented in cross-examination.

[61]In answer to a question concerning Mr Clifford, Mr Warwick stated that he did not even know that Mr Burrell had seen Mr Clifford.

[62]Among other things, Mr Warwick was asked about an article which appeared in the Sunday Telegraph on 10 November 2002. This reported on the deal which Mr Burrell had done with the Daily Mirror (which appears to have published up to 14 pages per day of Mr Burrell’s “revelations and claims” between Tuesday 5 November 2002 and Saturday 9 November 2002) and on the publication in the News of the World of an article entitled “Sex, Drugs and Lies” which is said to have “revealed a series of embarrassing and intimate secrets of the Prince and Princess of Wales”, apparently based on the contents of Mr Burrell’s 64 page proof of evidence made for his criminal trial. Mr Warwick agreed that Mr Morgan appears to have spoken about the Daily Mirror’s agreement with Mr Burrell in the terms set out in that article (which includes, without risk of understatement by Mr Morgan, the claim that it was “the most commercially successful deal in Fleet Street history”). Even if one assumes that the contents of that article are an accurate record of contemporary events and statements made by third parties, I am not persuaded that anything in it contradicts Mr Warwick’s evidence in any significant respect.

[63]I note that, in the context of discussing how his proof of evidence was leaked to the News of the World, the Sunday Telegraph article records that Mr Burrell had “a brief flirtation in May this year with Max Clifford” which it is said that Mr Burrell’s criminal solicitor persuaded Mr Burrell “to end within 10 days after defence witnesses said they would withdraw their co-operation if [Mr Clifford] continued to represent Mr Burrell”. This accords with the substance of Mr Burrell’s revised case as to the duration of his relationship with Mr Clifford, although the reason given for termination, and the identity of the person who is said to have wanted it, differ from Mr Burrell’s account.

[64]I also note that the same article includes the following statements:

“… Mr Warwick boasted on his website last week that his appointment as Mr Burrell’s agent was “World Breaking News” … Mr Warwick … was introduced to Mr Burrell less than a month before his trial, by a mutual television contact. They agreed, with a handshake, to contact each other again when the trial was over. That call came from Mr Burrell nine days ago when his trial ended prematurely. Within two hours of his first telephone call to Mr Warwick on Monday morning, Mr Morgan had clinched an exclusive deal”

. This accords with Mr Warwick’s evidence before me, and, further, supports Mr Burrell’s case that the fact that he had appointed Mr Warwick as his agent was well-known in November 2002, although it does not help as to precisely when it became so.

Mr Clifford’s evidence

[65]Mr Clifford operated MCA from 1971 to 2014. His business consisted of providing media-related services to clients. One service consisted of creating the image that best helped a client in the media, while trying to limit or stop damaging publicity (“the PR Service”). This was an ongoing service subject to payment of a monthly retainer, payable monthly in advance at the rate of £15,000-£20,000. The other service consisted of selling stories on behalf of clients, typically to a national newspaper or television programme (“the Broker Service”). For this, the client paid a commission of 20 per cent of what Mr Clifford managed to obtain for the story.

[66]If Mr Burrell had engaged Mr Clifford for the PR Service then, in exchange for monthly payments, Mr Clifford would have arranged interviews with the media to improve the bad image that Mr Burrell had and would have tried to change what was at the time a highly critical public perception of Mr Burrell. However, no invoices for PR Services were ever raised and no interview or meeting with any journalist was ever arranged. This is because Mr Burrell had come to Mr Clifford for only one reason, namely to sell his story.

[67]In 2002, because he was so well known, it was not unusual for Mr Clifford to receive unsolicited approaches from individuals seeking his help. Mr Burrell wanted to see if he could sell his story about his time in Royal service, which he thought would be of interest to the national media. Mr Burrell was well known as the former butler to the late Princess of Wales. It was clear to Mr Clifford that Mr Burrell wanted him to broker a deal for the sale of his story: “He thought his story was worth much more than he had been previously offered. As always I said I would take 20% of what I could get”.

[68]Mr Clifford believes that he met Mr Burrell on 12, 15 and 22 April 2002, in all probability at his offices at 50 New Bond Street. Although these dates are quite specific, Mr Clifford did not claim to have any clear recollection about the dates when he met Mr Burrell (or even where their first meeting took place), and no documents were disclosed by him relating to these dates. Some extracts from Mr Clifford’s office diary were disclosed, but they relate to dates in November 2002. It seems from one of the answers that Mr Clifford gave in court that he put forward these dates as a result of talking to his daughter, and maybe consulting her diary. This would tie in with Mr Burrell’s evidence that he saw Mr Clifford’s daughter when he first met Mr Clifford.

[69]When Mr Clifford and Mr Burrell met, their conversation was confidential. Mr Clifford brokered hundreds of deals for clients for their exclusive stories to the media, and he always maintained all and any agreed confidentiality in relation to those deals:

“This of course is a vital reason why people came to me with their exclusive stories. They knew they could trust me”

. In accordance with his universal practice, his agreement to provide the Broker Service to Mr Burrell was agreed verbally and on a handshake.

[70]After Mr Burrell had provided Mr Clifford with a brief outline of the content of his story, Mr Clifford asked him to write down a summary of the story. Mr Burrell understood, and duly agreed, that Mr Clifford would use that summary both as evidence of the existence of the story, and as a pitch document to Mr Clifford’s media contacts. This accorded with Mr Clifford’s usual practice when providing the Broker Service for clients. Mr Clifford could not pitch a story accurately in line with the instructions of any client or prospective client without having a written summary of the client’s story. Mr Clifford’s usual practice was to use this written summary as an aide-memoire while he verbally communicated the substance of the story that he was brokering for sale to the editor of a newspaper. He would then usually follow up this verbal communication with a fax outlining the story. The fax would be sent by his personal assistant at a pre-arranged time, either directly to the editor concerned, or to a trusted member of the editor’s staff.

[71]Following their conversations, Mr Clifford received a summary of Mr Burrell’s story in the form of the Letter. Mr Clifford states: “I did not receive the letter on any understanding or pretence that the information contained therein would be confidential or private. On the contrary, the letter was sent to me on the understanding between Mr Burrell and me that I would use the letter to pitch the story to potential buyers”.

[72]At some time after their meetings, Mr Clifford was contacted, he believes by telephone, by a lawyer acting for Mr Burrell who informed him that some of Mr Burrell’s witnesses in the prosecution being brought against Mr Burrell would refuse to give evidence on Mr Burrell’s behalf if Mr Burrell’s story was sold by Mr Clifford. Accordingly, Mr Clifford did not pitch the story to any media outlets at that time.

[73]While Mr Clifford cannot recall the circumstances in which the Fax came to be sent or sending the Fax, it is likely that he discussed the substance of the story with Ms Wade, with a view to her making a decision as to whether the News of the World would be interested in buying the story, and that that he then instructed his personal assistant to send the Fax to Ms Wade’s personal assistant. This accords with the normal way in which he provided the Broker Service. The Fax was not sent for onward dissemination to the rest of Ms Wade’s staff, and no instructions, either verbal or written, were given for that to be done. By sending the Fax, Mr Clifford was following Mr Burrell’s instructions to pitch his story for sale to Mr Clifford’s contacts within the media.

[74]The message contained on the Fax cover sheet (which, incidentally, gives some clues as to what was contained in the page of the Letter that is now missing) reads as follows: “Rebekah, Paul's letter to Max. Outlines gifts from the Queen as follows:• Pair of handpainted candlesticks

• Carriage clock

• Hand knitted clothes

• Romper suits

• Cardigans

• Bone china dinner service

• Set of Stuart Crystal glasses

• Suits for Royal tours

• Hospital bill after falling downstairs in USA Outlines gifts from the Queen as follows: With love Anne Marie”.

[75]Mr Clifford further states:

“I recall that [Ms Wade] told me that News of the World did not wish to buy Mr Burrell’s story and that I informed Mr Burrell of this, to his disappointment”

. In answer to questions asked in cross-examination, Mr Clifford said that Mr Burrell and he had spoken after Mr Clifford had spoken to Ms Wade and “I went back to him and said: that’s all your story’s worth. He said it wasn’t enough”.

[76]The trial papers included two batches of newspaper articles, published in May 2002 and November 2002 respectively, and these were put to Mr Clifford in cross-examination.

[77]The Evening Standard of 2 May 2002 contained an article entitled “Diana’s butler signs deal with Max Clifford”. This reported that Mr Burrell had asked Mr Clifford to represent him, and that “The agent is discussing newspaper, TV, radio and possible book deals. He has spent more than a month in meetings with Mr Burrell”. It quoted Mr Burrell as saying “I’ve been inundated with requests by the world’s media and also from people wanting to represent me but I wanted the best and it was arranged that I meet Max Clifford. I am glad to say that he is now representing me”. It also stated: “Mr Burrell … was introduced to Mr Clifford by a leading broadcaster, said to be a household name, who was a close friend of both Mr Burrell and the Princess for many years. Mr Burrell has instructed his lawyer to terminate any previous media arrangements he had in place. The news is bound to cause dismay for the Queen at the start of her golden jubilee celebrations … It is not known whether Mr Burrell – who has already written one book about royal food and etiquette – plans to reveal details of his life with Diana. In the past he has always stressed that he would never betray her confidence”.

[78]The Yorkshire Post of 4 May 2002 contained an article entitled “Diana’s butler drops Clifford ahead of trial”. This reported that Mr Burrell “yesterday said he no longer wanted assistance from his newly-acquired media adviser Max Clifford”. In a later paragraph, it stated:

“Max Clifford confirmed the situation”

. The article contained the following statements which were attributed to Mr Burrell’s solicitor, Andrew Shaw: “After mature reflection, Mr Burrell has decided that he does not need assistance from Mr Clifford. I have sent no documents whatsoever to Mr Clifford. Mr Burrell has not signed or sought to sign any contracts for books, films or any other media since his arrest. He finds the constant pressure from the Press and the media intolerable. Mr Burrell instructed Mr Clifford in the belief that he would protect him from it”.

[79]An article in the Western Mail of 4 May 2002 entitled “Former Diana butler severs links with media adviser; Paul Burrell drops Max Clifford” was to very similar effect. In addition, it included the following statement which was attributed to Mr Clifford: “I had a call from Paul Burrell who was quite emotional and saying that it was made very clear to him by his solicitor that it was very much against his interests to retain me for the court case. Apparently, at least four of the witnesses would not go in the witness box if I was representing him, and he was advised not to use me”.

[80]When asked about the statement (which appears in both articles dated 4 May 2002) that “Max Clifford confirmed the situation”, Mr Clifford said “I would not have confirmed the situation, because it never happened. I have been misrepresented in this story”. Otherwise, however, Mr Clifford accepted that he had probably said what was attributed to him, explaining that: “Paul Burrell has always been a very emotional man. I had a call from Paul Burrell. He made it clear that his solicitor didn’t want to use me. The fact was that if people knew I’d been trying to sell a story for him it wouldn’t go down well. I was not angry and did not tell him to grow some balls. I remember the day he was acquitted because it was the day we were going to go ahead and sell his story”.

[81]Mr Clifford said that: Mr Burrell had never been a client of his; Mr Burrell had come to him to sell a story; Mr Burrell had not said that he was worried about the details he told him emerging; when Mr Burrell’s trial was finished, he went to Rebekah Wade to sell that story, because the News of the World usually paid more than other newspapers.

[82]Mr Clifford said that the word “trust” had never been mentioned in his meetings with Mr Burrell earlier in 2002. He said:

“In April 2002, Paul Burrell told me sensational revelations about the Royal Family and other people. When I asked him to write down what he could prove, he sent me a letter containing a very watered down version of what he told me. He supplied me with the things he thought he could prove, not his story. The story he came to me to sell involved a sensational story about Princess Diana and lots of other people … The story Paul Burrell initially told me would have made millions”

. He also said: “The letter contains things he was prepared to talk about to the papers. I assume he didn’t think that was embarrassing”.

[83]Mr Clifford described as “totally and utterly ridiculous” the notion that he would have agreed to provide the PR Service to Mr Burrell, either alone or as a “loss leader” in connection with being retained to provide the Broker Service. He said: “I would not have done PR work for him without money. I was paid in advance for the PR Service … If I was doing PR, I’d say ‘give me the antidotes’, and I’d try and get them out there. If he had come to me for PR, I’d want to know the damaging things, so that I could answer them”.

[84]The 3 November 2002 edition of the Sunday Mail (a Scottish newspaper) contained a lengthy article entitled “What the butler saw”, which began with the claims that “Terrified Royals fear cleared butler Paul Burrell is set to sell his explosive secrets for £1,000,000. The one-time servant was considering six-figure offers yesterday after the Queen’s astonishing intervention cleared him of stealing Princess Diana’s most private possessions”. The article contained material about both Mr Warwick and Mr Clifford. With regard to Mr Warwick, it stated:

“His personal manager Dave Warwick refused to discuss details yesterday. But he admitted the worldwide interest in Burrell is staggering. He said: ‘When I got into the office this morning, I had 300 e-mails. I have had enquiries from New Zealand, Germany and America as well as regional and national newspapers in the UK’”

. With regard to Mr Clifford, it stated: “Public relations guru Max Clifford said Burrell’s insight would be ‘worth millions’. Clifford added: ‘What he chooses to do is up to him. But what he has is worth millions. Every publisher would be desperate for Paul Burrell’s book. He has a unique insight into the monarchy and what went on behind the scenes. We had two or three meetings and many telephone conversations in April. He said he might have to go to prison rather than reveal all of the confidential things he knew. He was in tears – we had two or three very emotional meetings. He was determined not to say anything which would in any way harm the Princess of Wales, the Queen, Prince Charles or Prince Philip’. [Clifford] said Burrell felt he faced a choice of betraying confidences which might cause embarrassment, or to go to prison. Clifford said: ‘That was the anomaly facing him. He made it clear he would not betray confidences’”.

[85]These words attributed to Mr Clifford were also quoted, with minor differences and additions, in an article in the Independent on Sunday of 3 November 2002 entitled “Burrell inundated by million-pound newspaper offers”. This article further referred to: “The publicist Max Clifford, who was consulted by Mr Burrell briefly last April”.

[86]An article in the Independent of 4 November 2002 entitled “Burrell in hiding as bids of up to £1m for story fly in” contained a shorter extract of these words attributed to Mr Clifford. That article gave more prominence to words attributed to Mr Warwick. It stated: “His agent, Dave Warwick, said that despite being cleared of any wrongdoing, his client’s plight was like being in jail because of the intense interest in the story… Mr Warwick, who given the job of acting for him after the collapse of the trial on Friday, said he had received inquiries from New Zealand, Germany and the United States …Mr Warwick said all Mr Burrell wanted to talk about at this stage was how the case had affected him, his family, and life in general … ‘I think he should be given the chance to put the record straight and tell people how much pressure he and his family have been under’ he added. ‘He is just a nice guy – a quietly spoken very nice guy who thinks about what he says and does. But remember, all this has meant that over the past two years he has had to make a living by selling flowers at fifteen quid a bunch’”.

[87]On 5 November 2002, the Express published an article entitled “We reveal sordid secrets Burrell sold for cash; butler betrays Diana’s memory”. The thrust of the article appears from the first two sentences:

“Butler Paul Burrell is to sell the sordid secrets of his life with Princess Diana for up to £1m. He plans to betray her memory by accepting lucrative offers from TV and a down market tabloid newspaper”

. The article reported on Mr Clifford’s position in some detail:

“Last night, publicity guru Max Clifford said the butler’s full story would contain sensational and embarrassing details of life in the royal household. Mr Clifford, who was approached by Mr Burrell for advice but never took him on as a client, said: ‘It is an absolutely fascinating insight into the Royal Family …. When he came to me back in April, he said “in order for me to establish my innocence of theft, I would have to reveal the confidential nature of what I did, the various things I saw, experiences, was part of, covered up for and so on”

. He told me all the kind of things he was talking about – that’s how I knew what he has is worth millions’. But Mr Clifford added: ‘The knowledge he has is worth millions, how much of that he chooses to impart is his choice’ … Yesterday, Mr Clifford said now might be a good time for Mr Burrell to cash in because the public would be sympathetic following his trial on what many saw as trumped-up charges”.

[88]I have already made reference, when discussing the evidence of Mr Warwick, to an article which appeared in the Sunday Telegraph on 10 November 2002, reporting on the deal which (by that time) Mr Burrell had done with the Daily Mirror, and on the publication in the News of the World of 3 November 2002 of an article entitled “Sex, Drugs and Lies” (which is in the trial bundle). The tenor of the Sunday Telegraph article can be gleaned from the headline:

“The rock and a hard place. Last week the royal secrets Paul Burrell had loyally guarded were ‘stolen’ and leaked to the media. After agonising over the decision, he did a lucrative deal to reveal what he really saw”

. For present purposes, the significance of the article relates to the light it sheds on who was representing Mr Burrell following the conclusion of his criminal trial. As set out above, the article reported that Mr Warwick had announced on his website “last week” the “World Breaking News” that he had been appointed as Mr Burrell’s agent, and reported how that appointment had occurred in a call when that trial ended prematurely.

[89]The Independent on Sunday of 10 November 2002 contained an article entitled:

“From ‘man of integrity’ to ‘outcast’ in one week; he may not have betrayed the Royal family … but Paul Burrell has certainly exposed the hypocrisy of the tabloids”

. The central theme of the article was to the effect that various tabloid newspapers had seemed happy enough to publish whatever they could extract from Mr Burrell, but that after he had spurned their advances they had turned on him. The article reported the deal that had been done with the Daily Mirror in a manner which was relatively supportive of Mr Burrell. For example, it stated:

“That Mr Burrell resisted the temptation to tell all at the first opportunity must, for the time being at least, count in his favour. A £2m book contract apparently awaits his signature, but he has yet to say anything that an objective observer would construe as betrayal”

. In discussing these events, the article reported:

“The deal was done through Mr Burrell’s new agent, Dave Warwick, until now the guardian of a roster of minor TV personalities … Mr Warwick explains … ‘Paul put himself in my hands, and Piers [Morgan] was the one I chose’ … Mr Burrell was originally brought to meet the agent by a friend, in the weeks leading up to the impromptu climax of his trial. When it collapsed and the call came through from ‘Paul’s people’, Mr Warwick says he had to hastily disengage himself from a more routine conversation …”

[90]Finally, the papers in the present case include an article published in the Guardian of 11 November 2002 entitled “Frenzy. There hasn’t been a tale like this for years … the extraordinary inside story of how the gloves came off in the fight to buy up Paul Burrell”. Much of this article concerned the leak of Mr Burrell’s proof of evidence from his criminal trial. The article stated “Max Clifford who was briefly appointed by Burrell as his PR man flatly denies that it came from him”. It went on to quote what Mr Clifford had said “last week” as follows: “We had two or three meetings in my office before the trial started… He went through with me what his defence was and the various arguments because at the time the crux of it was establishing that he had a very special relationship first with the Queen and Prince Philip and then with Charles and Di. The only way you can prove that confidentiality is to talk about the things that you were in the middle of. I asked him if he was prepared to go public with this and he said no. So the document definitely did not come from me”.

[91]In answer to questions concerning events in November 2002, Mr Clifford said that a lot of people wanted to interview Mr Burrell once he had been acquitted, because Mr Burrell then had credibility:

“This was the big story of the day” and “It was the hottest story of that moment”

. With regard to some of the words attributed to him in (among other places) the Sunday Mail of 3 November 2002, Mr Clifford said:

“That’s me setting up a big story that I’m trying to sell”

. He said that he had to wait until Mr Burrell’s criminal trial was over to sell the story, and because he was not doing public relations work for Mr Burrell he had no need to contact Mr Burrell in the meantime.

[92]Mr Clifford denied that by 2 November 2002 he had no relationship with Mr Burrell, or that if he had indeed had any relationship with Mr Burrell he would have been in contact with Mr Burrell immediately after Mr Burrell’s acquittal. He said that he had already made contact with Mr Burrell, and that there was no point in doing it again:

“I knew what he wanted to do – sell his story”

. He said that he had spoken to Ms Wade and sent the Fax to her on Mr Burrell’s behalf, and not in order to make a lot of cash for himself or to rescue something from the disaster of Mr Warwick getting the big story of the day or to curry favour with Ms Wade. Mr Clifford said:

“I was not angry. It was just another story. The story he gave me was very weak and was not worth very much at all”

. He made two points in support of his case that he had Mr Burrell’s authority: first, there would have been no point in sending the Fax if he could not have followed it up with input from Mr Burrell in the event that the News of the World expressed interest in publishing the story; second, to have tried to have the story published without such authority would have shown he could not be trusted and risked ruining his business.

[93]At the same time, Mr Clifford explained that not all that he was quoted as telling the newspapers was accurate, as I understand it for two reasons. First, Mr Clifford was not trying to sell Mr Burrell’s story to those newspapers. For example, with regard to the Independent he said “I was economical with the truth. I was as honest with them as they were with me” and with regard to the Guardian he said “I often mislead the Guardian. Secrecy is a very important part of public relations”. Second, Mr Clifford “felt comfortable” in portraying Mr Burrell “as he’d like to be portrayed” and “in as good a light as possible”, even if that involved misleading these newspapers. For example, Mr Clifford told the newspapers that when Mr Burrell saw him in April 2002 “He made it clear he would not betray confidences” for these reasons, and not because that was the truth. Mr Clifford said that, contrary to the account that Mr Clifford gave to the newspapers, in April 2002 Mr Burrell “Made it clear that he wanted to sell his story”; and he added that “Within a few days [i.e. of Mr Clifford speaking to these newspapers] he did so”. In other instances, Mr Clifford said that he had been misquoted or misrepresented: for example, he had not said of Mr Burrell that he “never took him on as a client” – and he suggested that what was meant in the Express of 5 November 2002 was that he had never taken Mr Burrell on as a public relations client. He also said that the Guardian article of 11 November 2002 was inaccurate in stating that he had been appointed as Mr Burrell’s PR man, and that “They’ve quoted me. But I never told them that”. Mr Clifford said that, although he was speaking to journalists every day at that time, he did not see any press release from Mr Warwick, and that he knew nothing of Mr Warwick’s involvement until he had seen “these recent papers”.

Ms Heather’s evidence

[94]In addition to the specific statements concerning Mr Burrell to which I have already referred, Ms Heather gave evidence of the general practice during the time that she worked for MCA. In the round, she explained that there were very different procedures for the PR Service on the one hand and the Broker Service on the other.

[95]While Ms Heather was occasionally involved in the selling of stories to the media, her main role was to manage the ongoing PR accounts for retained clients who paid a monthly fee for the PR services offered. The office was small and everybody who worked for MCA got involved when a potential client came in to see Mr Clifford regarding the PR Service. The procedure in such cases was as follows. First, the potential client would almost always come to MCA’s office in New Bond Street; Mr Clifford rarely went to see potential clients away from the office. Second, one of the Account Managers working for MCA at the time would sit in on the meeting and discuss the potential client’s specific requirements with Mr Clifford and the client.

[96]Selling a story involved a very different process. Account Managers were very rarely called in to a meeting between Mr Clifford and a potential client regarding the sale of a story. These conversations were usually conducted between Mr Clifford and the client alone.

[97]Had Mr Burrell come to see Mr Clifford for the PR Service, Ms Heather would have been involved in the meeting with Mr Burrell and/or the work arising out of that meeting. As it was, however, there was no PR work done by MCA for Mr Burrell that she was aware of or involved with. Clients who chose to instruct MCA for the PR Service rarely left the office without an invoice in their hands: “I remember this well, because the office staff used to joke about the fact that, once a potential client had employed the services of MCA, he or she rarely left the office without having paid. Mr Clifford’s preference, as I recall, was for the potential client to hand over a cheque for the PR Service offered before leaving the office … There is no way Mr Burrell would have come in for PR-related services because, had he done so, a monthly retainer would have been set up in favour of MCA and invoices would have been issued. It’s just not the way MCA worked. We would never undertake PR services without first obtaining money from, or issuing an invoice to, the potential client. I was never aware of any monthly retainer or invoices for Mr Burrell”.

[98]Ms Heather adhered to her account in cross-examination, stating, for example: “I can be sure that Paul Burrell did not come to us for protection or engaging the PR Service because [if he had done so] I’d have been in on the meeting”.

[99]When asked about events in November 2002, Ms Heather denied that if MCA had been working for Mr Burrell she would have remembered calls coming in about his story, or that she would necessarily have known what Mr Clifford was doing in the aftermath of Mr Burrell’s acquittal. She said that she could not recall that Mr Burrell’s story was a topic of intense conversation; that MCA were used to a frenzy and had been involved in some of the stories of the decade; and that “This [story] seems quite pedestrian to me”.

Discussion on liability

[100]I consider that it is convenient to start with what is, chronologically, a secondary issue, namely whether Mr Clifford’s communication of the Letter to Ms Wade on 2 November 2002 was made pursuant to a retainer, authority or permission of Mr Burrell.

[101]I have little hesitation in giving a negative answer to this question.

[102]In reaching that conclusion, I have taken into account Article 117 in Chapter 10 (entitled “Termination of Authority”) of Bowstead & Reynolds on Agency, 20th edn, to which I was referred by Mr Barrett, but I consider that it is unnecessary to set out any of that text in this judgment.

[103]I found Mr Clifford’s case on this issue highly implausible and entirely unconvincing. Conversely, I consider that Mr Burrell’s case on this issue was both coherent and consistent with the undisputed facts, namely that he had no contact with Mr Clifford after about May 2002, and that, following his acquittal in his criminal trial, and in circumstances where the media interest in him was extreme, he turned to Mr Warwick rather than Mr Clifford to broker the sale of the story that he was then prepared to tell.

[104]According to Mr Clifford, in or about April 2002 Mr Burrell told him a sensational story that was worth £1m or more, but when Mr Burrell was asked to reduce that to writing with a view to Mr Clifford trying to broker a sale to the media all that Mr Clifford got from him was a “watered-down version” that was “very weak and not worth very much at all”. Later in 2002, Mr Burrell was the subject of prosecution in two sensational trials at the Old Bailey, and on 1 November 2002 he was acquitted in dramatic circumstances. It is clear beyond argument that Mr Burrell’s personal history had moved on very significantly since April-May 2002. In addition, it must have been obvious to any reasonably well informed observer, let alone a sophisticated operator like Mr Clifford, that there was at the very least a live possibility that, now that his prosecution had ended as it had, Mr Burrell would be more willing to reveal interesting information concerning his dealings with and experience of the Royal Family.

[105]If Mr Clifford had truly considered that he retained Mr Burrell’s authority or permission to broker a sale of Mr Burrell’s story to the media, I find it inconceivable that he would not have contacted Mr Burrell to at least explore whether Mr Burrell was willing to sell more than the contents of the Letter. This would have been in the financial interests of both men, and to a potentially significant extent. Indeed, if he still had a professional relationship with Mr Burrell, it is difficult to understand how Mr Clifford could not have thought to do that if he was to avoid jeopardising the exalted reputation as a broker of deals that he enjoyed in 2002. If there is a media consultant’s equivalent of “How did he fail to sign J K Rowling” that would surely have been it.

[106]It is more difficult to know what to make of the contemporary newspaper reports, not least because it is not safe to assume that the media always get their facts right.

[107]It seems to me, however, more likely than not that Mr Clifford was the source of the story in the Evening Standard of 2 May 2002 that Mr Burrell had asked Mr Clifford to represent him, and to do so in connection with potential media deals.

[108]It also seems to me more likely than not that both Mr Burrell and Mr Clifford accepted that Mr Burrell had terminated their relationship, as reported in the Yorkshire Post of 4 May 2002 and the Western Mail of 4 May 2002.

[109]It is fair to say that at least some of the language used in the articles of 4 May 2002 is consistent with the service which Mr Clifford was no longer wanted to provide being the PR Service – for example, the statement by Mr Burrell’s solicitor that “[Mr Burrell] finds the constant pressure from the Press and the media intolerable. Mr Burrell instructed Mr Clifford in the belief that he would protect him from it”, and the statement by Mr Cliffordthat “it was very much against [Mr Burrell’s] interests to retain me for the court case”. However, that is contrary to Mr Clifford’s case, which is that all that he ever discussed with Mr Burrell was provision of the Broker Service.

[110]It is also correct to point out that if Mr Clifford had been retained by Mr Burrell and if, in truth, there had been no change to Mr Clifford’s retainer – which is, on Mr Clifford’s case, that he was to attempt to sell the contents of the Letter but only after Mr Burrell’s criminal trial had ended – but if at the same time it was thought damaging to Mr Burrell’s interests to reveal that Mr Clifford was still retained in that way, that would be a reason for concealing that fact from the media.However, if Mr Clifford participated in giving a misleading impression to the press about the termination of his retainer, he cannot readily complain if what was said at the time is taken at face value by the court.

[111]For these reasons, I consider that, on balance, these reports support Mr Burrell’s case. They record, in colloquial parlance, that Mr Clifford had been dropped by Mr Burrell.

[112]I also consider that, on balance, the articles which were published in November 2002 support Mr Burrell’s case and contradict that of Mr Clifford. In my view, given their detail and the extent to which their contents are accepted by Mr Clifford to be accurate, it is more probable than not that Mr Clifford made the statements attributed to him in those articles. Moreover, in my opinion those statements reflect two matters: first, that Mr Clifford’s relationship with Mr Burrell was historic and had ended in or about April 2002; and, second, that Mr Clifford was speaking about the value of what Mr Burrell had to sell not as Mr Burrell’s agent or representative but as an informed commentator. I do not accept that Mr Clifford said what he did to talk up the value of a story that he was retained to sell on behalf of Mr Burrell, or that he expressed himself as he did because he did not want to reveal the true extent of his interest in a potential sale.

[113]I also find it unbelievable that Mr Clifford would not have learned of Mr Warwick’s appointment by Mr Burrell very soon after Mr Warwick put out a press release on 1 November 2002, not least in light of Mr Warwick’s contemporary statement (which is quoted in the Sunday Mail of 3 November 2002) that on the morning of what I take to be 2 November 2002 Mr Warwick had received 300 e-mails concerning Mr Burrell. In my view, even allowing for the possibility of exaggeration by Mr Warwick, if Mr Warwick’s involvement was so widely known, Mr Clifford would have known of it.

[114]If Mr Clifford had truly believed that he retained Mr Burrell’s authority to broker the sale of the contents of the Letter, I consider that he would have lost no time in complaining about Mr Warwick’s appointment. At the very least, he would have sought clarification as to their respective roles. Yet Mr Clifford took neither of those steps.

[115]I consider that the likelihood is that Mr Clifford spoke to Rebekah Wade and then sent her the Fax in the hope and expectation that if she expressed an interest in the contents of the Letter – either alone or as a starting point for a wider story - he would be able to persuade Mr Burrell to sell his story to the News of the World through the medium of MCA; whereas if she expressed no interest, Mr Clifford would lose nothing, because the Letter was all that Mr Clifford had to negotiate with in the midst of what was by then intense media interest in Mr Burrell. In my view, this is the most likely answer to Mr Clifford’s points to the effect that he would not have sent the Fax unless he had Mr Burrell’s authority to do so because that would have been a waste of time and would have risked giving him a bad reputation. I consider that this was a piece of pragmatic opportunism, and that Mr Clifford discounted the risk that Mr Burrell would complain.

[116]I doubt that Mr Clifford regarded what he did as any, or any significant, betrayal of Mr Burrell. Viewed objectively, the contents of the Letter were relatively low-key and undramatic in comparison to the story that the media were hoping to persuade Mr Burrell to sell. Further, for Mr Clifford, sending a document as a pitch was an everyday pre-cursor to negotiating the sale of a story, which would typically be for the benefit of the teller as well as him. If the News of the World had not had the story promised by its headline of “Sex, Drugs and Lies” to run, who knows where his tactic might have led.

[117]If, after the Fax had been sent and he had heard back from Ms Wade, Mr Clifford had spoken to Mr Burrell about those matters, that would, of course, support his case that he acted on Mr Burrell’s instructions. However, I am unable to accept that this happened.

[118]If any such conversation had taken place, that would have been highly germane not only to the substantive issue of authority but also to the issue of whether the claim is time barred. However, there is no mention of this alleged conversation in Mr Clifford’s pleaded case (either in his detailed Defence or in any response to Mr Burrell’s Reply); and nor, so far as I am aware, did it feature in the arguments before Mann J in 2015. If it had formed part of Mr Clifford’s case when it was pleaded and argued before Mann J, I do not believe that such a significant point would have been overlooked by Mr Clifford’s legal representatives. Moreover, Mr Clifford gave inconsistent accounts of this conversation in his witness statement (in which he said that he had reported back to Mr Burrell that the News of the World did not wish to buy Mr Burrell’s story) and in his evidence before me (in which he suggested that the News of the World had offered to buy the story, but for a sum which Mr Burrell considered “wasn’t enough”).

[119]These findings are sufficient to make out Mr Burrell’s case on liability. That reduces the importance of the issues that arise earlier in point of time, namely the nature of any retainer of Mr Clifford by Mr Burrell and the basis on which the Letter was sent.

[120]So far as those issues are concerned, I accept Mr Clifford’s evidence that he would not have agreed to provide the PR Service to Mr Burrell without charging as he went along, and moreover at a rate which Mr Burrell could not afford. This evidence is supported by the evidence of Ms Heather, and the force of it was conceded by Mr Burrell in some of the answers that he gave in cross-examination. It should be remembered that Mr Burrell’s case is that he approached Mr Clifford to provide the PR Service alone. However, I also accept Mr Clifford’s evidence that he would not have agreed to provide the PR Service to Mr Burrell without charge as part of a package with the Broker Service, at least on the basis that the Broker Service was limited to marketing the contents of the Letter. That makes no sense, given that no one suggests that Mr Clifford was authorised to market anything immediately, and that, whatever their cherished value to Mr Burrell as part of his life story, I consider that Mr Clifford understandably regarded the contents of the Letter as having a relatively low commercial value. If the provision of the PR Service by Mr Clifford had been discussed in concrete terms, the talk would soon have turned to money, and would equally soon have come to an end.

[121]At the same time, I consider it likely that Mr Burrell did approach Mr Clifford with a view to engaging him to provide the PR Service. I accept that part of Mr Burrell’s evidence, which ties in not only with the fact that in April-May 2002 Mr Burrell had a real need of help in combatting adverse publicity, but also with the contemporary explanation which was given by Mr Burrell’s solicitor in his criminal case: “After mature reflection, Mr Burrell has decided that he does not need assistance from Mr Clifford. I have sent no documents whatsoever to Mr Clifford. Mr Burrell has not signed or sought to sign any contracts for books, films or any other media since his arrest. He finds the constant pressure from the Press and the media intolerable. Mr Burrell instructed Mr Clifford in the belief that he would protect him from it”.

[122]I regard this carefully worded statement, made by a solicitor representing a client who was facing not only serious criminal charges but also intense media scrutiny, as the best guide to the truth. I do not consider that its reliability is undermined by the claim that “I have sent no documents whatsoever to Mr Clifford”. Contrary to what was put to Mr Burrell in cross-examination, I consider that this sentence refers to the solicitor, not Mr Burrell, as, to my mind, is clear from the surrounding text in which Mr Burrell is referred to in the third person - and, if it refers to the solicitor, it was not suggested that it is inaccurate. What I take away from it is that Mr Burrell was indeed considering the possibility of selling his story, but that he had not got to the stage of offering it for sale. I do not consider that this is inconsistent with Mr Warwick’s evidence to the effect that later in 2002 Mr Burrell did not discuss the possible sale of his story until after his criminal trial had ended. At that time Mr Burrell had many more immediate concerns.

[123]Precisely what happened after Mr Burrell approached Mr Clifford is not easy to fathom after so long an interval of time, and where both sides have taken up entrenched positions which are likely to affect their ability, and certainly their willingness, to view matters dispassionately.

[124]In addition to the point that, as I have found, Mr Clifford would have made clear that he would expect substantial payments for providing PR Services, there are other problems with Mr Burrell’s case. Among other things, it is unclear to me how Mr Burrell can have hoped that providing Mr Clifford with the contents of the Letter would be of help to Mr Clifford in combatting adverse publicity about Mr Burrell if, as Mr Burrell also contends, the information contained in the Letter was provided by him to Mr Clifford in strict confidence, and to be kept locked up securely in a safe. Further, Mr Burrell’s account as to how and why he terminated his relationship with Mr Clifford differs from the account given by Mr Burrell’s solicitor at the time, and in oral evidence Mr Burrell added details to his account which had not emerged earlier. It is possible that these details came back to him as he spoke, or that they were omitted from his witness statement as being unnecessary, but it is also possible that they are not to be believed.

[125]On the other hand, there are problems with Mr Clifford’s case as well. I have rejected his evidence concerning the termination of his relationship with Mr Burrell and the events surrounding the sending of the Fax in November 2002. That casts doubt on the reliability of his evidence concerning his dealings with Mr Burrell in April-May 2002. The capacity for ruthlessness and the propensity for dishonesty which emerge from Mr Clifford’s criminal trial provide additional grounds to mistrust his evidence before me.

[126]At the end of the day, I consider it most likely that what happened is that the arrangement between the two men remained inchoate. Their contact only lasted for a matter of days. It appears to be common ground that Mr Burrell is prone to being emotional at the best of times. At that time, Mr Burrell was under an extraordinary amount of pressure, and was in need of assistance with the media from someone with Mr Clifford’s expertise. I believe that he told Mr Clifford a lot more than he later put into the Letter, but that they both accepted that there could be no question of Mr Burrell selling a story that betrayed Royal confidences, at least at that stage. This was partly because Mr Burrell did not want to be disloyal and partly because, even if he had been willing to reveal secrets, he could not do so at that time because that would harm his criminal case. On the other hand, Mr Clifford could see the value of Mr Burrell “telling all”, and was hopeful that, in time, this is what Mr Burrell would be willing to do.

[127]Accordingly, the two of them were circling around how to address their respective interests and concerns. The Letter was written as part of that process. In all probability, it was sought by Mr Clifford in order to get something in writing for use as a potential pitch document if and when he got the green light to market Mr Burrell’s story, and it was provided by Mr Burrell in the hope that, in some way, it might assist Mr Clifford to protect him from the media. It contains personal information relating to Mr Burrell and his family, but nothing that is sensitive to the Royal Family, or which, so far as I can see, there is any reason to believe that they would object to being made public. For example, it is entirely complimentary about the Queen, both personally and as an employer. While not in any way devaluing the personal significance to him of his recollection of Royal service, I therefore consider that Mr Burrell may well have been considering making public the events and sentiments that he chose to put in the Letter, but whether by a public relations exercise or by sale of a story had yet to be decided.

[128]I believe that matters never coalesced, because Mr Burrell was compelled to terminate the relationship. Whether that was due to the stance of Lord Carlile QC or of potential witnesses in Mr Burrell’s criminal trial or both may not matter greatly, and is not something I have to decide. I consider that, in any event, Mr Clifford was disappointed, and probably cross, to have expended time and effort on Mr Burrell for nothing. I consider it likely that Mr Burrell did not ask for the Letter back because he had other more pressing things on his mind. I accept that Mr Burrell did not leave the Letter in Mr Clifford’s possession because he had any thought or intention that Mr Clifford might later reveal its contents to any third party. I also accept that he trusted Mr Clifford. I do not accept, however, that the Letter contained his “all his secrets”, or that it detailed “expensive gifts”: these claims are instances of Mr Burrell exaggerating.

[129]For these reasons, I find that Mr Burrell did not at any time engage or authorise Mr Clifford to market the contents of the Letter, or sent it to him to use for that purpose.

[130]In these circumstances, Mr Clifford’s defence based on limitation cannot succeed. Mr Burrell is entitled to rely on section 32 of the Limitation Act 1980. Mr Clifford’s breach of duty was concealed. Mr Burrell did not discover, and there is no suggestion that he could with reasonable diligence have discovered, that the Fax had been sent until either 22 June 2011 or 28 June 2012, and he brought his claim within 6 years of those dates.

[131]Accordingly, in my judgment Mr Burrell succeeds on the issue of liability.

The arguments concerning quantum

[132]Mr Bennett submitted that the appropriate award in this case is at least £10,000 and more likely £20,000-£25,000. Mr Barrett submitted it should be £10,000 at most.

[133]Mr Bennett relied on the decision of Mann J in Gulati and the judgment of the Arden LJ, with whom Rafferty LJ and Kitchin LJ agreed, in Gulati Appeal as establishing that in claims for misuse of private information the power of the court to award general damages is not limited to compensation for distress and can be exercised in addition to compensate claimants for the misuse of their private information. See the discussion in Gulati leading to Mann J’s conclusion at [144] that compensation can be awarded not only for distress but also “for the commission of the wrong itself so far as that commission impacts on the values protected by the right”; and Gulati Appeal at [45]. The argument that Mann J should have awarded damages for distress alone was the first major ground of appeal in Gulati Appeal, and it was rejected by the Court of Appeal.

[134]In support of this argument, and as an indication of the level of award which may be appropriate even in the absence of distress, Mr Bennett referred to a number of cases in which it would appear that awards had been made which included no element for distress. These cases are conveniently summarised in Gulati Appeal at [43]:

“[Counsel] for the respondents, submits that the courts have awarded general damages to children even though the child was not aware of the invasion of privacy and therefore suffered no distress: see AAA v Associated Newspapers Ltd [2012] EWHC 2103 [2013] EMLR 2 (award of £15,000 for the publication on three occasions of an unpixellated photograph of a child thought to be the illegitimate daughter of a politician, affirmed [2013] EWCA Civ 554 but the damages were not in issue on appeal), and Weller v Associated Newspapers Ltd [2014] EMLR 24 (awards of between £2,500 and £5,000 to the children of a celebrity for publication of unpixellated photographs showing their faces). [Counsel] relies also on Halford v United Kingdom (1997) 24 EHRR 523. In this case, the Strasbourg Court awarded the applicant £10,000 as just satisfaction for the interception of her telephone calls in violation of Article 8 even though it was not satisfied that she had shown that the stress she had suffered was due to this interception. Neither this nor the previous two cases bind this court. In Halford the award by the Strasbourg Court was not an award of damages under English law.”

[135]I should add that the decision at first instance in Weller v Associated Newspapers Ltd was affirmed by the Court of Appeal (see

[2015] EWCA Civ 1176

, [2016] EMLR 7). In that appeal, no separate challenge appears to have been made by the appellant to the sums awarded by Dingeman J at first instance. It is also right to point out that it would appear that the reason why Dingemans J awarded one of the children twice as much as the other two is because one of the children suffered embarrassment while the others did not. At [196] of his judgment, Dingemans J listed a number of facts which he had in mind concerning the assessment of the award in that case, four of which were of general application, but the fifth of which was:

“the twins will not have suffered any immediate embarrassment from the publication, but that Dylan did suffer real embarrassment”

. At [197] he said:

“Although, as was made clear by Paul and Hannah Weller in their evidence, this case was more about stopping the future publication of photographs of the children, it is still necessary to attempt to ascertain a fair sum to award by way of compensation for the misuse of the private information. In my judgment a fair award of compensation is an award of damages of £5,000 for Dylan, £2,500 for John Paul, and £2,500 for Bowie. There is nothing to suggest that an award of aggravated damages would be appropriate in this case.”

[136]The second major ground of appeal in Gulati was that the awards made by Mann J were disproportionate in comparison to those which apply in other areas, and, in particular, with awards for personal injury. The Court of Appeal rejected this argument as well (see Gulati Appeal [50]-[77]). It seems to me that the reasoning of the Court of Appeal under this heading may be summarised as follows:(1) There is a “fundamental principled reason” why the process for assessing damages for non-pecuniary loss in defamation cases must not be carried out in disregard or ignorance of damages awarded in personal injury cases and that there should be some reasonable relationship between awards in both cases, even though the factors to be taken into account are materially different, and no exact correlation can be achieved, namely that “if there is no such consideration or relationship, the reasonable observer may doubt the logic of the law or form the view that the law places a higher value on a person’s right to privacy than it does on (say) a person’s lifelong disability as a result of another’s negligence, and this would bring the law into disrepute and diminish public confidence in the impartiality of the legal system” (see [61], and John v MGN Ltd

[1997] QB 586

(2) There is a further reason, namely that there might also be pressure from personal injury claimants for an increase in awards for personal injury, which would require careful consideration because such increases could have wide-ranging effects on a large number of members of society (see [62], and, further, the observations of Lord Hoffmann giving the judgment of the Privy Council in The Gleaner Co Ltd v Abrahams

[2004] 1 AC 628

, at [49] to [63], to the effect that differences between an award for libel and an award for personal injury include (a) the difference in economic effect, because personal injury damages, unlike libel damages, are generally met by insurers who pass on the cost to their clients who pass on the cost to society in general, and (b) that one purpose of libel damages is to control irresponsible behaviour by the press).

(3) The logic of the fundamental point applies also to claims for misuse of private information, but nevertheless “Taking account of personal injury compensation does not mean that the outcome in this field has to be exactly the same” ([62]).

(4) In light of the consideration that Mann J had clearly had regard to the personal injury scale, the real question in Gulati Appeal was whether Mann J had achieved the reasonable relationship between that scale and his awards, and this in turn came down to whether he was right to break down the awards that he made into the three components, namely (a) damages for each published article, (b) damages for hacking or related activities which did not result in the publication of an article, and (c) damages for distress resulting from hacking. This was because the appellant did not challenge the individual awards within those components. ([63])

(5) Although the claimants did not dispute the analogy with multiple injuries in personal injury cases, it is clear from judicial guidance in that area (a) that “there is no universal rule that awards of general damages for multiple injuries should be the sum of the amounts for each of the injuries involved; the right sum may be a greater or lesser amount. It all depends on the facts” and (b) that there is no requirement “that the damages must be awarded as a global sum rather than be awarded as separate sums for each injury”. ([66]-[67])

(6) Not only had Mann J adopted an approach which he was entitled to take (see [68]-[69]) but also testing his approach by reference to his three highest awards and more generally by considering all the awards which he made “They were thorough and fairly done in every case” ([70]-74]).

[137]As part of the reasoning on this last point, at [74] Arden LJ adopted, with one small qualification, the statement of general principles set out in [229] of the judgment of Mann J “as guidance for any future cases where the same or similar points arise”. That statement, in which I have added the qualification to [229(vii)], is as follows:

“(i) The subject matter of the disclosure is not a rigid guide to the amount of compensation. However certain types of information are likely to be more significant than others. Thus medical information is more likely to be high in the ranks of information which is expected to be private, so its interception and disclosure is likely to attract a higher, rather than a lower, figure. However … not all medical-related disclosures will be treated equally seriously. It depends on the nature of the information. (ii) Information about significant private financial matters is also likely to attract a higher degree of privacy, and therefore compensation, than others. (iii) By contrast, information about a social meeting which is used to get a photograph is, of itself, likely to attract a lower degree of privacy (in terms of compensation), though it is capable being magnified by other factors, such as contributing to a sense of persecution. (iv) Information about matters internal to a relationship will be treated as private. The amount of compensation payable will depend on the nature of the information listened to and disclosed, in part on the amount of distress and upset caused and in part on the effect on the relationship. Information which is disruptive of the relationship, or which is likely to affect adversely the attempts of the couple to repair it if that is what they are trying to do, is likely to be treated as a serious infringement deserving substantial compensation. (v) Further categorisation is not realistically possible. (vi) The appropriate compensation will depend on the nature of the information, its significance as private information, and the effect on the victim of its disclosure. A short-lived effect based on embarrassment will attract less compensation than a life-changing intrusion … (vii) The effect of repeated intrusions by publication can be cumulative. What starts out as irritation or embarrassment on the first disclosure can become a justified persistent feeling of distress or upset on repeated disclosures. [Conversely, it is possible that the cumulative effect will mean that additional distress is less rather than increased as a result of repeat disclosures.] (viii) The extent of the damage may be claimant-specific. A thinner-skinned individual may be caused more upset, and therefore receive more compensation, than a thicker-skinned individual who is the subject of the same intrusion. [Counsel for the Defendant] accepted that, in relation to distress, the “egg-shell skull” principle applied, though I should add that I do not think that any of the claimants in the 8 cases before me were particularly sensitive.”

[138]I should have thought that not only the nature of information but also the extent of the misuse should be a relevant factor when assessing compensation for the wrong itself – because a disclosure to the world at large involves a greater loss of control than a disclosure to, for example, a small number of journalists. In a case like Murray v Express Newspapers plc

[2009] Ch 481

, in which the infant claimant was photographed surreptitiously and contrary to his parents’ wishes in the street, but was too young to suffer any distress, it seems to me that, in principle, a greater award would be appropriate if (as happened) the resulting photographs are published in the media than if they had merely been offered to the media for publication without success. There is no tension between this approach and the consideration that, in a case where distress is suffered, the scale of the disclosure of private information is in any event likely to be a material factor when assessing “the effect on the victim of its disclosure”.

[139]Indeed, I would suggest that the question of appropriate compensation for misuse of private information is a broad one, which takes account of all the circumstances of the case. They include the nature of the information, the nature and extent and purpose of the misuse (including whether it involved a breach of a contractual or fiduciary duty or the commission of criminal offence), the consequences of the misuse (for example, whether it causes information to be revealed for the first time, or to be disclosed to someone to whom the claimant has particular objection, or whether the effect is temporary or long-lasting, such as where the information remains accessible on the internet), whether the misuse caused the claimant financial loss or provided financial gain to the defendant, any relevant policy considerations (such as the protection of the rights of children or legal privilege), and any mitigating factors (such as a genuine mistake or a belief in the claimant’s consent) or aggravating factors (such as the manner of the defendant’s response to the complaint of misuse, and the conduct of the trial). That would seem to me to be in keeping with the approach of the Court of Appeal to the antecedent question of whether there is a reasonable expectation of privacy (see Murray v Express Newspapers plc

[2009] Ch 481

, Sir Anthony Clarke MR at [36]).

[140]I also consider that it may be necessary to keep the extent of the “egg-shell skull” principle in perspective. I do not doubt the validity of Mann J’s principle (viii), not least because it has received unqualified approval from the Court of Appeal. If, in violation of their autonomy over their private information, identical twins are photographed together in the street, and the publication of the photograph causes more distress to one twin than to the other, then, in principle, it seems right that one twin should require greater compensation than the other for the ensuing distress.

[141]However, the threshold question in claims for misuse of private information is whether there is a reasonable expectation of privacy. This an objective question, and, at least in cases where the information is not obviously private, depends upon “what a reasonable person of ordinary sensibilities would feel if s/he was placed in the same position as the claimant and faced with the same publicity” (see Murray v Express Newspapers plc

[2009] Ch 481

, Sir Anthony Clarke MR at [35]). It also seems to me that “the nature of the information” and “its significance as private information” and (if I am right) the scale of the misuse of the information are objective questions.

[142]I am a little uneasy at the thought that, once the analysis has gone past these objective criteria, the claimant should be entitled to be compensated for “the effect on the victim of its disclosure” without any obvious regard to reasonableness and proportionality. Assume, for example, that(i) A has been given some wedding presents by an employer and B has a serious medical condition,

(ii) separately, they confide information about those matters to C, who misuses that information by selling it for C’s own ends to a newspaper, which publishes all of it,

(iii) A is unusually emotional and is therefore more upset by the publication of the information about wedding gifts than B is by the publication of B’s medical information, and

(iv) that results in A being awarded much greater compensation than B, then

(v) might that not cause the reasonable observer to doubt the logic of the law and/or diminish public confidence in the impartiality of the legal system? I appreciate that in many cases the court may doubt that A is as upset as A claims, and avoid this result on that basis; and that in other cases the overall award to B may be greater than the award to A because B is entitled to more compensation for the misuse of B’s more sensitive information. However, I am concerned as to the possible outcome where A’s distress is genuine, and where, compensating A on a purely subjective basis, it would raise A’s award above that of B.

[143]The points upon which Mr Bennett placed particular emphasis in the present case are:(a) some of the information contained in the Letter was medical information;

(b) other information was internal to the relationship between Mr Burrell (and his family) and the Queen;

(d) it was a seriously aggravating factor that Mr Clifford’s sending of the Fax amounted to a betrayal of trust, especially as the recipient was the News of the World; and

(e) it was a further aggravating factor that Mr Burrell was “relentlessly accused” of lying at trial, both in cross-examination by Mr Barrett and by Mr Clifford himself during the course of his answers in cross-examination.

[144]The highest award which was made by Mann J and considered by the Court of Appeal related to Alan Yentob. Arden LJ summarised matters as follows (Gulati Appeal, [70]):

“The highest was £85,000 for Alan Yentob. Mr Yentob was a senior BBC executive. He made extensive use of his voicemail. Messages left for him would contain an enormous amount of entertainment-related material of interest to journalists, as well as personal information. The information could be used to develop stories about people other than Mr Yentob, about whom no stories were written based on material obtained from hacking. The judge found that his phone had been hacked at least twice a day for a period of about 7 years (Judgment, para. 241). The judge found that he experienced "deep hurt and anger" when he discovered the extent to which his phone had been hacked. The judge awarded a small amount of aggravated damages because of the way in which he had been cross-examined. The judge made a total award of £85,000. The judge did not break this figure down. It would appear to represent 7 years at £10,000 per annum, plus an amount for distress, and small amounts for the aggravated damages and the activities of the private investigators. Given the scale of the hacking, there is clearly no basis for saying that this award was perverse or one he was not properly entitled to make.”

[145]I consider it helpful to set out Mann J’s findings in Gulati concerning Mr Yentob in greater detail. They included the following:

“The duration and extent of hacking 238. … At one stage the information led Mirror journalists to wonder whether Mr Yentob was having an affair. The belief that he was was passed from one journalist to another. In fact they were wrong - he was not - and nothing was published about it. That point, however, demonstrates how the information from hacking was likely to spread round journalists, to the further detriment of privacy in the item in question. 239. In short, the material available to the Mirror journalists who hacked Mr Yentob was wide-ranging, sometimes highly confidential, usually private, related to a lot of matters of great significance to Mr Yentob and others and was available to use to pursue, develop or stand up stories about people other than Mr Yentob … 243. All this means that Mr Yentob’s phone was hacked at least twice a day, and often several times a day, for a substantial part of a period of about 7 years, though perhaps for not the whole of that 7 years. I expect the intensity rose as more and more people got used to the technique and its usefulness. All aspects of his personal and business life were exposed because of the nature of his use of voicemail. This is an enormous intrusion. In those terms this is a serious case. To this one adds the possibility of “farming” his other contacts, the extent of which it is impossible to determine. The use of private investigators 245. … This layer will add little in terms of compensation to the hacking layer. The impact on Mr Yentob 246. Mr Yentob gave compelling evidence of the effect of the hacking on him. He did not know at the time that he had been hacked, and only found out when the Metropolitan Police told him that he had apparently been a victim, relatively recently in the course of their inquiries. His “distress” … dates from then. The extent of it will only have become apparent as the case unfolded … In his evidence in chief he said that the scale had only become apparent to him in the preceding couple of weeks. 247. He described himself as being “appalled”; he felt he and his family, friends and associates had been “violated on a truly massive scale”

. It was as though someone had been able to search through his personal belongings; he was left feeling “invaded and sickened”. He lost the sense of security in relation to what he had considered a secure method of communication. He denied the suggestion in cross-examination that this was now historic. He was particularly concerned that even now he does not know what information was obtained. It has affected his children who have been upset about what may have been revealed. While he did not claim it had ruined his life he did say that it has unsettled his family, which must have had an effect on their relationships. 248. He was plainly also angry. [Counsel] submitted that anger was not an appropriate subject of compensation. I disagree, in the context of this sort of claim. To a degree it is part of the hurt and upset, and feelings of anger are, for these purposes, akin to hurt. It is probably difficult to separate the two, psychologically speaking. 249. Mr Yentob would have been partly appeased by a prompt apology, and his letter before action had asked for one. However, no apology came until less than a month before the trial. He regarded the apology as feeble, and considered there was more that could have been done to investigate the matter, though it seems to me that in the circumstances some of that may have been a bit unrealistic in the light of the evidence that I have heard about how steps were taken to cover tracks. He remembered hearing the denials made to the Leveson inquiry (see above) and felt “very let down” by those and by the statements which were apparently intended to be denials of wrongdoing. 250. Mr Yentob’s evidence about this was given in a straightforward fashion, and I do not consider that he has exaggerated or embellished for the purposes of this trial. While he has not sustained the anxieties over a long period from the publishing of articles, he has nonetheless experienced real deep hurt and anger at having gradually discovered the apparent extent of the invasion of his privacy. 251. [Counsel] listed various matters as going to aggravated damages. Some of them are repetitions of some of the significant underlying facts, and not appropriate to aggravate the damages. Two require mention … the manner and content of his cross-examination, which led to him feeling indignant … is worthy of a small amount of aggravated damages, but I shall not specify it as a separate sum. Alan Yentob - Findings on damages 252. In the case of Mr Yentob I shall specify one overall sum, which takes into account the extent and nature of the invasion of his privacy from the phone hacking, the activities of the private investigators and the effect on Mr Yentob. I shall allow a very modest amount of aggravated damages in respect of his cross-examination, and consider the effect on him of the retracted denials by Mirror officials as part of an assessment of his degree of hurt rather than aggravated damages. The overall figure which I have come to for Mr Yentob is £85,000.” The use of private investigators The impact on Mr Yentob

Alan Yentob - Findings on damages

[146]The third main ground of appeal in Gulati was that the awards of Mann J were disproportionate when compared with those made by the European Court of Human Rights. The Court of Appeal rejected this argument, holding, in sum, that the question of the measure of damages is a question for English domestic law (Gulati Appeal, [89]).

[147]The fourth ground of appeal in Gulati concerned the facts, namely that Mann J’s awards involved double-counting. This was also rejected (Gulati Appeal, [90]-[109]).

[148]Mr Barrett put at the forefront of his submissions the observations of Mann J at the interim hearing in the present case (Burrell v Clifford

[2015] EWHC 2011 (Ch)

, at [28]), which Mr Barrett submitted to be correct, and to point to the conclusion that the appropriate an award in this case should be no more than £10,000:

“This is a case in which the damages are likely to reflect two elements (assuming that Mr Burrell establishes the wrong alleged). The first is compensation for the wrong itself, and the second is compensation for distress and upset (and allied emotions). It is not clear that there is any, or any significant, aggravating factor which is likely to operate. As to the first, if the wrong is established then it was a serious wrong, because information which was clearly transmitted for one purpose was used for another. That is not something which is likely to sound in a small (in the sense of close to nominal) damages. Mr Bennett said his client would say that he experienced considerable upset and alarm when he discovered that someone who was supposed to be a trusted adviser had in fact betrayed him. One can imagine that, if the circumstances were such as Mr Burrell says they were, that would be the case, and the alarm and distress would be significant. However, when compared with the situation where alarm and distress arises from widespread publication of the information, that amount of alarm and distress is likely to be relatively small. I also accept that it is likely to be much reduced from what it otherwise might have been had Mr Burrell not put the private information in the public domain himself, for whatever reason. The fact of the matter is that, even on Mr Burrell’s case, the distress will not have arisen from the revealing of private information which would never otherwise have been revealed. It would come from the premature revealing of private information in circumstances in which, within a year or 18 months, he had revealed it himself. He would be entitled to claim for distress and upset arising out of discovering a betrayal, but that seems to me to be arguably as far as it would go.”

[149]In Vidal-Hall v Google Inc

[2015] EWCA Civ 311

[2015] 3 WLR 409

, the Court of Appeal held that misuse of private information should now be recognised as a tort. On 23 July 2015, when granting permission to appeal on all other grounds, the Supreme Court ruled that “Permission to appeal be refused on ground one (the issue whether the claim is in tort) because this ground does not raise an arguable point of law”. In light of this ruling, I consider that the better view is that it is this tort, rather than breach of confidence, which represents the legal wrong in the present case.

[150]For completeness, however, I should record that Mr Barrett referred me to the well-known statement of Megarry J of the three elements of the cause of action for breach of confidence in Coco v A.N. Clark (Engineers) Ltd

[1969] RPC 41

at 47. On my findings, all of those elements existed in the present case.

[151]Mr Barrett also referred me to the review of the law of breach of confidence which was conducted by Arnold J in Primary Group (UK) Ltd & Ors v The Royal Bank of Scotland Plc & Anor

[2014] EWHC 1082 (Ch)

[2014] RPC 26

, and which resulted in an award of £5,000 on facts which were very different to those of the present case.

[152]At [181] in that case, Arnold J referred to his detailed consideration of the law concerning the assessment of damages for breaches of both contractual and equitable obligations of confidence in Force India Formula One Team Ltd v 1 Malaysia Racing Team Sdn Bhd

[2012] EWHC 616 (Ch)

[2012] RPC 29

at [374]-[438]. At [182], Arnold J explained when his decision in that earlier case was the subject of an appeal the Court of Appeal did not consider it necessary to review the law in detail, and refrained from expressing any view as to the correctness of Arnold J’s analysis (see

[2013] EWCA Civ 780

[2013] RPC 36

at [97] (Lewison LJ)). That analysis includes the statements that(a) “the law has come to recognise that the problem posed by situations in which the claimant cannot prove orthodox financial loss as a result of the breach of a negative contractual term (i.e. a term that restricts the defendant’s activities in some way) can be addressed by the award of … damages assessed as the price which the defendant could reasonably have demanded as the price for agreeing to relax the contractual restriction in question” and

(b) the cases establish the following principles for the assessment of such damages (omitting citation of authority):

“(i). The overriding principle is that the damages are compensatory … (ii) The primary basis for the assessment is to consider what sum would have been arrived at in negotiations between the parties, had each been making reasonable use of their respective bargaining positions, bearing in mind the information available to the parties and the commercial context at the time that notional negotiation should have taken place … (iii) The fact that one or both parties would not in practice have agreed to make a deal is irrelevant … (iv) As a general rule, the assessment is to be made as at the date of the breach … (v) Where there has been nothing like an actual negotiation between the parties, it is reasonable for the court to look at the eventual outcome and to consider whether or not that is a useful guide to what the parties would have thought at the time of their hypothetical bargain … (vi) The court can take into account other relevant factors, and in particular delay on the part of the claimant in asserting its rights …”

Discussion concerning quantum

[153]Mr Burrell did not know about the misuse of his private information at the time when it occurred. He only discovered it about 9 or 10 years later. Moreover, by the time that he discovered the misuse, Mr Burrell had, entirely voluntarily and as part of what I infer was a lucrative publishing deal, in effect placed all the information contained in the Letter in the public domain in his autobiography “A Royal Duty”. This was done in October 2003, about 8 or 9 years before Mr Burrell discovered the misuse, although he accepts that he began writing his revelations 6 months earlier, and I infer that his decision to make this information public was probably taken some time before that.

[154]I accept that his decision to publish when he did is an aspect of Mr Burrell’s autonomy concerning his private information. I also accept that it does not follow inexorably from that decision that he did not care much about the privacy of the information in November 2002. In my opinion, however, these later events impact on both limbs of his claim for misuse of private information. With regard to the first limb, they are in line with my earlier findings that the Letter did not contain Mr Burrell’s “innermost secrets”,but instead contained information that he was willing to contemplate making public even in 2002 – perhaps understandably after he had become the subject of hostility in the media, and in light of the fact that the Letter contained nothing disloyal or damaging to the Royal Family. With regard to the second limb, they have the effect that, no matter how emotional he may be, Mr Burrell’s distress at learning of Mr Clifford’s disclosure must be substantially less than it would otherwise have been.

[155]Further, the contents of the Letter are relatively saccharine. I do not question their personal nature or doubt the importance that Mr Burrell attached to them in 2002. Nevertheless, they seem to me largely to comprise the kind of fond memories about family events (wedding presents and the birth of a first child); about accident, injury and recovery; and about the generosity, kindness and consideration of a former employer, that many individuals might be inclined to share quite freely – not only with family, friends, and neighbours, but also with a wider circle of acquaintances, such as fellow employees in a new employment, and maybe even drinking companions in a pub. Due to the exalted nature of Mr Burrell’s former employer, they may provide grounds for enhanced personal pride, and they also contain an element of reflected glory. Inevitably, people differ as to how private and sensitive they are about such matters, but stories bearing these hallmarks are a familiar currency in many social situations.

[156]Looked at objectively, the most sensitive class of information contained in the Letter concerns the serious accident which Mr Burrell sustained, the risk that he might have remained paralysed, and the fact that he required expensive treatment. However, as Mann J observed in Gulati:

“not all medical-related disclosures will be treated equally seriously. It depends on the nature of the information”

. In my view, paragraphs 7-16 of the Letter are towards the bottom end of this particular scale. So far as medical information is concerned, they are stated at quite a high level of generality, and reveal nothing which is particularly remarkable or which is embarrassing to Mr Burrell. This is consistent with the fact that he chose to include these matters in “A Royal Duty”.

[157]In light of these considerations, it seems to me that many individuals in Mr Burrell’s position would not have been motivated to begin High Court proceedings concerning Mr Clifford’s actions. This is notwithstanding the following considerations. First, Mr Burrell did not provide the Letter to Mr Clifford for the purpose of marketing the contents to the media. Second, Mr Clifford acted in breach of the trust and confidence which Mr Burrell reposed in him in sending the Fax to the News of the World. Third, this was a particularly aggravating breach of duty not only because (although this was not known to Mr Clifford when the Fax was sent on 2 November 2002) the News of the World had obtained Mr Burrell’s confidential proof of evidence for his criminal trial (extracts of which it published on 3 November 2002) but also because the Letter was circulated internally within the News of the World beyond Ms Wade and was, it seems, retained (probably by a journalist) until it was discovered by the MPS in the course of the criminal investigation of Clive Goodman and Glenn Mulcaire for “phone-hacking”.

[158]However, Mr Burrell has exercised his right to bring the current proceedings, and they have survived a serious attempt by Mr Clifford to have them struck out. The fact that Mann J appears to have had concerns, which I share, about the disproportionality between the value of the claim and the costs involved (to say nothing of the use of scarce court resources) has no bearing on Mr Burrell’s entitlement to compensation.

[159]Moreover, on my understanding of the authorities – and no argument to the contrary was addressed to me – Mr Burrell is entitled to have that compensation assessed on the basis, which having seen him give evidence I accept, that he was distressed by learning of what Mr Clifford had done to an extent which an individual of more robust disposition who had publicised the same story for money in 2003 would not have been.

[160]It is not obvious that a misuse which results from a breach of duty by someone in a position of trust is necessarily worse than one which results from the unlawful, and indeed criminal, interception by a third party of private communications. To my mind, the comparison is analogous to that encapsulated in the observation that “it is questionable whether it is morally worse to obtain a benefit by making a statement known to be false, or to obtain the same benefit by taking advantage of a confidential or fiduciary relationship” (see O’Sullivan and Another v Management Agency and Music Ltd and Others

[1985] QB 428

at 454) or in Dr Johnson’s suggestion that “there is no settling the point of precedency between a louse and a flea”.However, I am prepared to proceed, in Mr Burrell’s favour, on the assumption that the misuse resulting from Mr Clifford’s breach of duty was objectively worse, and thus more likely to occasion distress, than if the News of the World had obtained the information contained in the Letter by hacking.

[161]That consideration aside, it seems to me that, for purposes of the present case, much helpful guidance is provided by the award that was made by Mann J in Gulati in respect of Alan Yentob,and by the awards which were mentioned in Gulati Appeal at [43], and in particular those made by Dingemans J and affirmed by the Court of Appeal in Weller v Associated Newspapers Ltd

[2015] EWCA Civ 1176

, [2016] EMLR 7 (“Weller”).

[162]The degree of intrusion which Mr Burrell suffered was drastically less than that suffered by Mr Yentob. It was not “enormous”, it did not concern “all aspects of [Mr Burrell’s] personal and business life”, and it did not last for several years. Its net effect was the equivalent of a telephone call, or possibly a small number of telephone calls, between Mr Burrell and Mr Clifford being hacked on behalf of a newspaper, and the information obtained being passed round a number of journalists (as happened in the case of the information which was obtained from Mr Yentob). I accept that it would be wrong to apply a mechanical approach, or to treat the awards made by Mann J as if they set a tariff. I also accept that there are difficulties about “reverse engineering” an award which relates to a host of misuses with a view to extracting a figure for compensation which is properly applicable to a single incident of misuse. The total may be greater or less than the sum of the parts. However, while making all due allowances for the different facts of each particular case, it is right to strive for a measure of consistency. Setting the misuse of which Mr Burrell complains against the starting point of £10,000 for each year of serious levels of hacking which Mann J held to be appropriate (see Gulati [230]), which was affirmed in Gulati Appeal, and which Mann J applied in the case of Mr Yentob, I consider that it is difficult to see how the appropriate award for the commission of the wrong itself could be more than a fraction of £10,000.

[163]The degree of intrusion which is produced by a wrongful act (or a series of wrongful acts) is the product of the nature of the information which is misused and the scope of the resulting disclosure. It is not easy to compare the misuse involved in the mass publication of photographs of children which occurred in Weller with the misuse involved in communicating the contents of the Letter to Ms Wade (and, indirectly, it would seem, one or more other journalists at the News of the World). However, it has been recognised in many cases that photographs have the capacity to be particularly invasive, and, overall, it is not obvious that the former (in respect of which Dingemans J made an award of £2,500) is less serious than the latter. Moreover, if and to the extent that it forms part of the function of awards in this area to control irresponsible behaviour by the media or to “serve as notice, both as to the present and the future, as to how seriously the court regards infringement of a child’s rights” (see AAA v Associated Newspapers Ltd

[2012] EWHC 2103 (QB)

, [2013] EMLR 2 per Nicola Davies J at [127]), those factors militate in favour a higher level of award in cases involving the publication of photographs of children than in a case like the present.

[164]Turning to distress, Mr Burrell’s case, both objectively and subjectively, is far less serious than that of Mr Yentob, to whom Mann J appears to have awarded £15,000, including a very modest amount in respect of aggravated damages to take account of his cross-examination. Mr Burrell does not claim that his privacy was “violated on a truly massive scale”, or that he lost any sense of security, or that Mr Clifford’s actions had unsettled his family or had affected and upset his children. I am prepared to accept that Mr Clifford’s breach of duty and the manner in which Mr Clifford’s case was advanced at trial are more serious aggravating factors than Mann J found to exist in Mr Yentob’s case, and that, even allowing for some elements of exaggeration in his evidence overall, Mr Burrell was more sensitive to the misuse of his private information than any of the claimants in Gulati (including Mr Yentob) appear to have been. Nevertheless, I find it difficult to see how the appropriate level of compensation for distress in the present case can be more than a fraction of the £15,000 that Mann J awarded Mr Yentob, or for that matter should be drastically out of line with the £2,500 which Dingemans J considered appropriate in the case of the older child in Weller.

[165]Doing the best I can, I consider that the appropriate overall award in this case is £5,000.

Conclusion

[166]In the result, this claim succeeds, and I award Mr Burrell total compensation of £5,000. I invite Counsel to agree a form of order. I will hear submissions on any points on which they are unable to agree, and on any other issues such as costs and permission to appeal, either when judgment is handed down, or at some other convenient date.

Burrell v Clifford [2016] EWHC 294 (Ch)

Introduction

Outline of the issues

Criminal proceedings

The witnesses

Mr Burrell’s evidence

Hope that this is of some use

The issue about dates

Mr Warwick’s evidence

Mr Clifford’s evidence

Ms Heather’s evidence

Discussion on liability

The arguments concerning quantum

Alan Yentob - Findings on damages

Discussion concerning quantum

Conclusion

Cited in 5 later judgments