The Duke of Sussex has lost a bid to have The Mail on Sunday publisher’s defence to his High Court libel claim thrown out by a judge.
Harry, 39, is suing Associated Newspapers Limited (ANL) over a February 2022 article about his legal challenge against the Home Office following a decision to change his publicly-funded security arrangements when visiting the UK.
The duke’s lawyers have claimed the story “purported to reveal, in sensational terms” that information from court documents “contradicted public statements he had previously made about his willingness to pay for police protection for himself and his family whilst in the UK”.
They allege the article was “an attack on his honesty and integrity”, and would undermine his charity work and efforts to tackle misinformation online.
ANL is contesting the claim, arguing the article expressed an “honest opinion” and did not cause “serious harm” to his reputation.
In March, the High Court heard the duke’s bid to strike out ANL’s “honest opinion” defence or grant judgment in his favour on it.
In a written ruling on Friday, Mr Justice Nicklin refused to “strike out” ANL’s defence.
The judge concluded the publisher had a “real prospect” of successfully showing at a trial that previous Harry press statements provided a “misleading” description of his case against the Home Office.
A hearing dealing with the consequences of Mr Justice Nicklin’s decision is expected to be held on Tuesday.
The judgment comes a day after the High Court finished hearing Harry’s claim that the February 2020 decision of the Executive Committee for the Protection of Royalty and Public Figures (Ravec) – which comes under the department’s remit – to change the degree of his personal protection was “unlawful and unfair”.
A different judge’s decision in that case is expected at a later date.
Mr Justice Nicklin was previously told The Mail on Sunday first reported that the duke was taking legal action against the Home Office in January 2022.
A press statement issued on Harry’s behalf at the time said he and his family were “unable to return to his home” due to the lack of police protection needed in the UK.
It added: “The duke first offered to pay personally for UK police protection for himself and his family in January of 2020 at Sandringham.
“That offer was dismissed. He remains willing to cover the cost of security, as not to impose on the British taxpayer.”
In a Home Office document prepared for a February 2022 preliminary hearing in Harry’s security claim, the department said his offer of private funding “notably was not advanced to Ravec” at the time of the duke’s visit in June 2021, or in any pre-action correspondence.
The February Mail on Sunday article claimed this was “a crushing rebuttal to Harry’s initial public statement that implied he had always been willing to foot the bill”.
Justin Rushbrooke KC, for Harry, said in written submissions for the March hearing that ANL’s defence to the libel claim “rests upon two provably false premises” relating to the press statement.
The first was a suggestion the duke had allegedly made a false claim over his willingness to pay for police protection in the UK while the second was he had allegedly stated his case against the Home Office was over a refusal to let him pay for this security.
He told the court it was “absolutely obvious” that the January 2022 press statement “makes no claim that the claimant (the duke) made an offer to Ravec or the Home Office or that his judicial review proceedings were to challenge a refusal to accept it”.
Andrew Caldecott KC, for ANL, previously said the bid to end their defence without a trial was “wholly without merit” and that “the whole case is built on sand”.
He added: “The claimant was responsible for press statements that said he would pay for security when he had never expressed any willingness to pay until after the judicial review.”
In his ruling, Mr Justice Nicklin said it was “not fanciful” that ANL would be able to show at trial that the press statements “sought to promote the judicial review claim as his battle against the Government’s (perverse) decision to refuse to allow him to pay for his own security”.
He added: “There is a real prospect that the defendant (ANL) will succeed in demonstrating that this was a misleading description of the issues in the judicial review claim, arguably promoted because it was hoped to show the claimant’s judicial review claim in a positive light, whereas a portrayal of the judicial review claim as the claimant trying to force the Government to reinstate his, taxpayer-funded, state security risked his appearing in a negative light.
“I anticipate that, at trial, the defendant may well submit that this was a masterclass in the art of ‘spinning’. And, the defendant argues, it was successful in misleading and/or confusing the public.”
Mr Justice Nicklin said other media coverage highlighted by ANL had previously characterised Harry’s challenge against the Government as being over it refusing his offer to pay, adding that Mr Rushbrooke had conceded that a PA news agency article was “at least arguably misleading”.
The judge added that if ANL was able to establish these points at a trial then “it has a real prospect of succeeding in demonstrating also that an honest person could have held the opinion that the claimant was responsible for attempting to mislead and confuse the public as to the true position”.
Earlier this year, Harry was refused permission to bring a further legal challenge against the Home Office over a Ravec decision that he should not be allowed to pay privately for protective security.