Britain's Duke of Sussex has been ordered to explain to a High Court judge how private messages to the ghostwriter of his memoir were “destroyed” amid their potential relevance to his legal action against the publisher of The Sun.
In a ruling on Thursday, Mr Justice Fancourt said the apparent deletion of Harry's exchanges with John Moehringer on the Signal messaging platform, as well as drafts of Spare, before the book’s publication was “not transparently clear”.
The judge ordered Harry's lawyers to carry out further searches of his laptop and examinations of his texts and Whatsapp and Signal messages from 2005 to January last year, for evidence potentially relevant to the litigation over allegations of unlawful information gathering.
He ordered Harry to make an interim payment of £60,000 in legal costs to NGN after ruling largely in favour of the publisher’s bid for a wider search for evidence at a one-day hearing in London.
Harry, 39, alleges he was targeted by journalists and private investigators working for NGN, which also published the now-defunct News Of The World.
He is among a number of people to bring cases against the publisher, with a full trial of some cases due to be held in January.
The publisher has previously denied unlawful activity took place at The Sun.
Mr Justice Fancourt said there was evidence that “a large number of potentially relevant documents” and “confidential messages” between Harry and his ghostwriter “were destroyed some time between 2021 and 2023, well after this claim was under way”.
“The position is not transparently clear about what exactly happened and needs to be made so by a witness statement from the claimant himself explaining what happened,” he said, adding that this should cover what attempts have been made to retrieve the Signal messages.
The judge said Harry’s exchanges with Mr Moehringer may have “related to the parts of Spare in which unlawful information gathering in relation to newspapers was discussed”.
Harry’s barrister, David Sherborne, said in written arguments that Harry had not discussed unlawful information gathering via text or WhatsApp with anyone and that his Signal messages with the ghostwriter had been “wiped”.
But Mr Justice Fancourt said this was “apparently contradicted” by Mr Moehringer who previously said he and Harry were “texting around the clock”.
NGN’s disclosure bid is focused on uncovering any evidence that could relate to whether Harry knew he had a potential case against the publisher earlier than the legal time limit of six years before he filed his claim in September 2019.
In his oral ruling, the judge said he had “real concerns” this issue was being “inadequately” dealt with by Harry’s legal team, adding that the majority of searches for material had been carried out by the duke himself rather than lawyers.
He said Harry had “only disclosed five documents as being relevant” to issues to be considered at trial, describing this as “rather remarkable and gives me cause for concern about the disclosure exercise”.
The judge also granted NGN’s request that Harry’s former solicitors at law firm Harbottle & Lewis and members of the “royal household” – Sir Clive Alderton, private secretary Britain's King Charles, and Sir Michael Stevens, the keeper of the privy purse – should be written to to request material relevant to the litigation.
Earlier on Thursday, NGN’s barrister Anthony Hudson KC claimed Harry had to be dragged “kicking and screaming” into allowing his personal emails to be examined for potential evidence.
The court heard some 11,570 emails from the duke’s now-closed ha@sjpkp.com email account were being reviewed for potential disclosure by his lawyers over the course of 150 hours and at a cost of £50,000.
Mr Hudson accused Harry of “obfuscation” and creating an “obstacle course” in the face of NGN’s efforts to source more material.
In written arguments, he said the loss of the Signal messages with the ghostwriter “gives rise to real concern as to whether the claimant has complied with his obligation to preserve potentially relevant documents”.
Mr Sherborne said NGN had wrongly characterised his approach to disclosing material, accusing the publisher of embarking on a “classic fishing expedition” for potential information that was “entirely unnecessary and disproportionate”.
He said accusations that Harry was putting up obstacles was the “height of hypocrisy”, telling the court that NGN had previously deleted “millions of emails” as a way of “hiding incriminating evidence”.
In written arguments, Mr Sherborne said Harry had “gone above and beyond his obligations” and had already searched his Californian home for material.
He said Harry no longer had laptops, mobile phones or data backups from before September 2013.
Harry's Hotmail email address used before 2014 had been deactivated, he said, while there were “no relevant social media accounts that fail to be searched”.
Royal aides had also been contacted and “have confirmed they do not hold relevant documents”, Mr Sherborne added.
