The Associated Newspapers Judgment: A Note on Propensity and Proof

As is being widely reported: The Duke of Sussex and six others have lost their High Court privacy case against the publisher of the Daily Mail and Mail on Sunday. Judge Mr Justice Nicklin said the claimants had failed to prove the allegations of unlawful information gathering. …Mr Justice Nicklin refused to make a finding as to whether what became known as unlawful information gathering had become “widespread and habitual” at Associated Newspapers and instead decided the merits of each individual claim. He said he accepted the denials of Associated Newspaper journalists “who gave lawful explanations for the sourcing of the disputed articles and incidents”. Mr Justice Nicklin’s judgment can be seen here. He took account of “propensity evidence”, but a strong theme of his reasoning was that propensity is not proof when it comes to specific instances of unlawful information gathering (UIG) alleged by the claimants. And whereas the 2023 case brought by Prince Harry and others against the…