The Duke of Sussex and actor Hugh Grant face a wait to hear whether their claims against a tabloid publisher over alleged unlawful information gathering can go ahead to a trial.
Harry, 38, alleges he was targeted by journalists and private investigators working for The Sun and the now-defunct News Of The World, and is suing the newspapers’ publisher, News Group Newspapers (NGN).
Mr Grant, 62, is bringing a similar legal action against NGN in relation to The Sun only, having previously settled a claim with the publisher in 2012 relating to the News Of The World.
NGN, which denies any unlawful activity took place at The Sun, is trying to have their claims thrown out, arguing that both the duke and Mr Grant have brought them too late.
Harry’s lawyers argued that, while he was aware of unlawful activity in around 2012, he had no reason to think it had taken place at The Sun, and was prevented from bringing a claim because of a “secret agreement” between the royal family and senior NGN executives.
His barrister David Sherborne said in written arguments that the late Queen was involved in “discussions and authorisation” of the agreement, which was that members of the royal family would not pursue claims against NGN until after the conclusion of the litigation over hacking.
Mr Sherborne said the agreement “meant that the claimant could not bring a claim against NGN for phone hacking at that time”.
Anthony Hudson KC, for NGN, said the publisher’s position is that “there was no such secret agreement”.
Mr Justice Fancourt, hearing the case, will hold a further hearing in July to determine whether Harry’s pleaded case can be amended to include his claims regarding the secret agreement, following which it is expected he will give his ruling on whether his and Mr Grant’s claims can proceed to trial.
Concluding his argument on Thursday, Mr Sherborne told the court that correspondence in 2017 and 2018 between the late Queen’s then-director of communications Sally Osman, Robert Thomson and Rebekah Brooks, was “consistent” with there being such an agreement.
Ms Brooks is the chief executive of News UK and Mr Thomson is chief executive of News Corp, both parent companies of NGN owned by Rupert Murdoch.
Mr Sherborne pointed to emails between Ms Osman and the executives, in which Ms Osman raised the possibility of resolving “unfinished business” and said “the Queen was aware” they had spoken.
In one email, dated July 2017, Ms Osman wrote to Mr Thomson saying: “Given that there are now no formal criminal proceedings involving News or the Royal Household it seems an appropriate time to draw a line under such matters between our two institutions, with a view to facilitating untainted and normal business relations in the future.
“The fact that we can have this conversation, with The Queen’s full authority and knowledge of the scale and effect of hacking and surveillance on Her family, their staff, associates, friends and family, is important with a view to resolution in the near future.
“We look forward to hearing your thoughts on what shape that resolution and recompense might take.”
There was a subsequent meeting between Ms Osman and Mr Thomson, which Ms Osman followed up with an email in December 2017 saying: “It was very good to see you recently and to talk through our various issues.
“I do hope that we can reach an understanding that resets the relationship with News and satisfies what many feel is ‘unfinished business’. The Queen is aware that we have spoken.”
When she received no reply, Ms Osman sent a further email in March 2018, describing an “increasing sense of frustration here at the lack of response or willingness to engage in finding a resolution to what is considered outstanding business between the Royal Household and News Corporation (NGN’s parent company)”.
Mr Thomson replied, apologising for not having done so previously, and added: “My understanding was that we would wait for the civil cases to be resolved and, thankfully, we seem to be in the final phases of that process.”
Mr Sherborne told the judge: “Your lordship will see why we say that is consistent with what the Duke of Sussex says in his witness statement about what he was told as to why he couldn’t bring a claim earlier than he did.”
He added: “He was kept out of the loop, as he says, and the reason he was kept out of the loop, and agreed to be kept out of the loop, is because of the secret agreement.”
The barrister argued it would be “particularly unfair” if the duke and Mr Grant’s claims were not allowed to proceed, given the “concealment” of evidence which “overlaps” with the unlawful activity alleged against NGN.
He added: “Through their concealment, the defendant lied to the PCC (Press Complaints Commission), to the public inquiry set up to investigate these matters, to the Parliamentary select committee and even to the police and this court.”
The barrister said if the concealment resulted in the duke and Mr Grant’s cases being thrown out, “the message is clearly sent that crime does pay”.
Mr Hudson, for NGN, said in his concluding arguments to the court: “It is so clear in both cases that both of these claimants with their very substantial knowledge and resources, could have both easily taken advice and collected evidence.”
Regarding Harry, he added: “He knew he had a claim in 2006, in 2012, and he was pushing hard to have that resolved in 2017 and 2018 before the wedding.”
Earlier on Thursday, Mr Grant arrived with his wife Anna Eberstein and his legal team and greeted journalists as he entered the Rolls Building, in London.
Harry has followed the hearing from his home in the US by a video link from the court.
NGN has previously settled a number of claims since the phone-hacking scandal broke in relation to The News Of The World, which closed in 2011, but has consistently denied that any unlawful information gathering took place at The Sun.