INVICTUS
Verdict on Prince Harry's War With The British Press
Out of the night that covers me, Black as the pit from pole to pole, I thank whatever gods may be, For my unconquerable soul.
In the fell clutch of circumstance, I have not winced nor cried aloud. Under the bludgeonings of chance, My head is bloody, but unbowed.
Beyond this place of wrath and tears, Looms but the Horror of the shade, And yet the menace of the years, Finds and shall find me unafraid.
It matters not how strait the gate, How charged with punishments the scroll, I am the master of my fate, I am the captain of my soul.
Invictus, the poem by William Henley, speaks to the unconquered human spirit and stoicism in the face of adversity, which in Henley’s case was the loss of a leg.
The nineteenth century poem has been invoked by charlatans caught in the act and politicians seeking to rouse the public into further foreign policy misadventure.
It also inspired Prince Harry to set up the Invictus Games for injured soldiers and provide them with “opportunities for post-traumatic growth: enabling those involved to reclaim their purpose, identity and future, beyond injury.”
The prince had his own Invictus moment earlier this month. 7 July was judgment day for him and Baroness Doreen Lawrence in their four-year war with Associated Newspapers Limited (ANL), publishers of The Daily Mail and Mail on Sunday, who they accuse of historic hacking, blagging and bugging.
Mr Justice Nicklin’s 436-page ruling dismissed all their claims and those brought by Elton John, his husband, David Furnish, former Lib Dem justice minister Sir Simon Hughes, Sadie Frost and Liz Hurley.
Harry was due at an Invictus Games event in London when the judgment was made public at 10am. Within hours, he and Doreen had put out a remarkable joint statement accusing Nicklin of a “a complete and obvious whitewash”.
Looked at one way, the statement was a reaction to the loss they both suffered, not just in court, but of a mother (Princess Diana) and son (Stephen Lawrence) respectively.
However, this was no hot headed response dashed off to make the afternoon news. Far from it. The claimants’ legal advisors had received the judgment in advance and therefore every word in the statement should be judged considered, every serious allegation meant.
Looked at another way, it was a desperate and cynical attempt to control the narrative having lost the war.
Harry and Doreen effectively branded Nicklin a stooge who’d abused his position as the top media judge in England and Wales to cover up “compelling” evidence of ANL wrongdoing.
The judge’s inferred motivation was revenge. The former barrister was on the losing side in a similar hacking case one decade ago involving a different set of celebrities, the statement pointed out.
Nicklin had represented The Mirror newspaper group in 2015 against the same legal team now representing Harry and Doreen. Only, in The Mirror hacking claim the newspaper put its hands up. By contrast, ANL was admitting nothing.
The fight back began immediately the newspaper received a letter from Doreen Lawrence’s lawyers in early 2022 claiming the most extraordinary menu of unlawful acts while “pretending” for 25 years to champion justice for her murdered son.
The statement is all the more cynical given, as this newsletter was the first to report, Harry and Doreen had tried to back out of the trial just weeks before it started.
And when ANL refused, both took the witness stand and gave it the large one, wincing and crying aloud, to use Henley’s phrase, about apparently principled claims they were willing to abandon moments earlier.
When the folly of their legal action was set out in crushing detail on 7 July, the petulant pair put their name to a bitter statement attacking the judge.
Here it is in full:
We came to Court seeking justice and accountability. But we have received neither. This judgment represents a complete reversal of the position which previous Judges have taken in relation to the hacking claims successfully brought against both News Group Newspapers and Mirror Group Newspapers (who were represented by, at the time, the Judge who made this decision).
Generic findings about various private investigators that were held by the Courts in these parallel claims to have carried out unlawful activity at the very same time in relation to similar stories and well-known individuals have been wholly ignored. The fact that this Court has chosen to dismiss them represents an inconsistency which is hard to understand or reconcile with common sense, or the evidence heard in the court room itself. It is a complete and obvious whitewash, but sadly not altogether unexpected. However, the lengths to which the Court has gone to exonerate the Mail is as shocking as it is totally unwarranted.
When the Court says there is not sufficient evidence of wrongdoing, despite the documents showing otherwise, then one does wonder how justice was ever going to be achieved. One need not look past when a private investigator the Mail used actually admitted on tape to having unlawfully blagged Baroness Lawrence, or when a journalist recorded the name of the private investigators she used to find out about highly sensitive medical information (that even the Mail was too worried to publish) or when another private investigator emailed one of the journalists with the actual British Airways seat number and ticketing details for a young girl simply visiting her boyfriend in return for payment.
It feels here like one rule for the newspapers and another for the claimants. While the Claimants presented evidence, Mail journalists simply gave denials, and the Court chose uncritically to believe them, even in the face of inconsistencies, contradictions and blatant untruths that were obvious to neutral observers in Court when compared to the documents. We presented to the Court evidence which we believed was compelling at the time and remains so now. We would like to thank our legal team for all their hard work and all the witnesses who were brave enough to came forward in the pursuit of justice.
Nicklin, of course, is more than capable of drafting a libel claim against Harry and Doreen. But judges don’t tend to sue angry claimants whose cases they have so comprehensively dismissed.
Also, as the saying goes in legal circles, a man who represents himself has a fool for a client; and Nicklin’s no fool.
The way he narrowed the issues on the road to trial, conducted the proceedings and delivered a compendious judgment anchored in the need for evidence not inference are testimony to that.
On repeated occasions he slapped down efforts by the claimants’ barrister, David Sherborne, to turn the trial into a wide-ranging public inquiry into ANL.
Instead, Nicklin required the claimants to prove (to the lower civil standard of more likely than not) that each of the 57 articles complained of were the product of unlawful information gathering by a named journalist and private investigator, “not generalised allegations of culture, prevalence or scale.”
So far there is no sign of Harry and Doreen appealing, which would be the natural course for those who feel a judge has erred in law. For those also alleging some corrupt motive, it is always open to the Prince and Baroness to complain to the body that investigates judges.
Given the stinging criticism Nicklin has made of the claimants’ legal and research team (more below) if Harry and Doreen were to appeal a new set of lawyers will likely have to be engaged.
And where will the money come from to pay them given, after such a total loss, the claimants are on the hook for ANL’s estimated £30m costs, only a portion of which will be covered by their insurance policy.
Harry’s side has already briefed that he would cover Doreen’s cost, the royal berk having helped persuade her to join the claim.
For now, the claimants and whoever advised Harry and Doreen to put out such a bitter statement, could well get an insight into Nicklin’s reaction when both sides appear before him at the end of the month to discuss costs.
This, say legal sources, will be about The Mail seeking a higher percentage based on the claimants’ litigation conduct.
There could be a political dimension to the decision to attack Nicklin ahead of the change of prime minster yesterday.
Behind Harry and Doreen is the increasingly irrelevant Hacked Off pressure group, whose figurehead, Hugh Grant, has been courting Andy Burnham for a second public inquiry into the press after Leveson reported in 2012.
Trial documents have revealed the shadowy hand of Hacked Off in preparing this super claim that has now blown up in their faces.
The PM in waiting, or at least his new team, should read Nicklin’s findings about Hacked Off director Evan Harris, whose litigation conduct was described as “improper and dishonest”.
What follows are the key findings about the key figures who want you to once again believe they are victims of a massive conspiracy and not the masters of their own fate.
