Setback for Charles in journals publication battle
The Prince of Wales today lost his battle to avoid having to go to a full trial to stop his travel journals being published by the Mail on Sunday.
Mr Justice Blackburne said the Prince's application succeeds in the claims in confidence and copyright concerning the Hong Kong journal - which has already been published virtually in full.
But he said the claims over seven other journals in the hands of the newspaper must go to a full trial.
The judge said it was now open to the Prince to claim for damages in respect of the Hong Kong journal and an injunction to prevent further infringement of his copyright.
But because the Prince has to take claims over the other, unpublished journals to a full trial, he faces having to give evidence in the witness box and cross-examination by the Mail on Sunday's lawyer.
The Prince had wanted "summary judgment", thereby avoiding a full trial, on all the matters.
Mr Justice Blackburne had been told that Charles wrote journals on foreign trips to send to his friends and family like other people wrote letters and, it was argued, he was entitled to keep those private thoughts and observations secret.
The Mail on Sunday replied that the journals should be published "in the public interest".
The Prince took action after the newspaper published parts of a journal in which he referred to the Chinese hierarchy at the handover of Hong Kong in 1997 as "appalling old waxworks".
Mr Justice Blackburne had been urged by the Prince's lawyers to hold that the newspaper had no arguable defence and that he was entitled to summary judgment.
The judge had been told that Charles writes journals on foreign trips to send to his friends and family like other people write letters.
Hugh Tomlinson QC argued at a hearing last month that his royal client was entitled to keep those private thoughts and observations secret.
Arguments that the journals should be published in the public interest were "far- fetched", he said.
The Prince was entitled to succeed in his claim that the Mail on Sunday breached his confidentiality and copyright when it published extracts from a journal which had been copied by a "disloyal" former employee and handed over to the newspaper.
In the final moments of last month's hearing, the judge told Mr Tomlinson: "The other side is rather hoping the Prince of Wales would be turning up and be cross-examined."
Mark Warby QC, for the Mail on Sunday, rose to his feet with a smile and said: "That is entirely a matter for him."
The Prince has already had to endure disclosures by a former top aide describing the inner workings of his private office and how he sees himself as a "political dissident".
And on the second day of the hearing, the journal the Prince entitled The Handover Of Hong Kong or The Great Chinese Takeaway, was released to the Press.
It will now be up to the Prince to decide whether or not he continues with the action.
Lawyers say it would be a very brave heir to the throne indeed who risked stepping into the witness box to face cross-examination.
The judge refused the newspaper permission to appeal against his rulings over the Hong Kong journal, but agreed to suspend the effect of his judgment pending an application to the Court of Appeal for permission.
In the meantime, the full hearing of the case regarding the other journals stands adjourned. A temporary undertaking by the newspaper not to publish further material remains in force.
Mr Justice Blackburne said the Mail on Sunday had argued that because all the information in the Hong Kong journal was already in the public domain, any further injunction to prevent copyright infringement would be "inappropriate" and the media was now entitled to deal with it.
"I do not agree. There is nothing disproportionate in granting an injunction against further copyright infringement and an order for the delivering up of all infringing copies of that journal."
He added: "The fact that all the information contained in it is now in the public domain does not give the defendant, or anyone else, any right to infringe the claimant's copyright in the work."
Of the seven other travel journals, the judge said the Prince wanted an injunction to stop copyright infringement and their return, with an inquiry over damages.
He said their contents were not put in evidence but it was said they were "of a similar character" to the Hong Kong journal and "contain many matters of considerable legitimate interest to the public".
Mr Justice Blackburne said it was arguable that the court should not prevent by permanent injunction the possible future use of information contained in the other seven journals.
"For all the court knows, circumstances may arise which may make the disclosure an entirely appropriate exercise of the defendant's right of freedom of expression, so also should the defendant be free, as part and parcel of the exercise of that right, to quote verbatim extracts from the journals and that, in the meantime, it would be an illegitimate curtailment of its rights to have to return the copies it has of those seven journals."
He said: "I am left in sufficient doubt about the correct answer to think that it would not be right to come to any final conclusion on the point on an application of this kind."
But earlier in his ruling, he says: "On what I have seen in the evidence, there is every reason for concluding that the claimant establishes, as much in relation to the other seven journals as he does in relation to the Hong Kong journal, a reasonable expectation of privacy in respect of their contents.
"That said, I am not willing on a summary application of this kind and without knowing anything of what the journals say to shut out the defendant from arguing at trial that the court should not prevent by a permanent injunction the further use by the defendant of information contained in those journals when, for all the court knows, circumstances may arise which may make the disclosure an entirely appropriate exercise of the defendant's right of freedom of expression."