The Duke of Sussex is “very close” to agreeing a settlement with the publisher of The Sun, delaying the opening day of his long-awaited High Court trial.
An eleventh-hour deal between the Duke and News Group Newspapers (NGN) was discussed behind the scenes on Tuesday, just as the trial was due to get under way.
But the last minute delay, blamed in part on the time difference in California, where the Duke lives, infuriated the judge.
His refusal to allow a third adjournment within almost as many hours raised the extraordinary prospect that both sides would join forces to seek an intervention from the Court of Appeal.
The development comes just weeks after the Duke vowed never to settle his claim for unlawful information gathering, insisting that his sole goal was accountability.
Any potential deal would represent a dramatic end to a five-year legal battle that has incurred staggering costs on both sides and has taken up a huge amount of court time.
NGN, which has strongly rejected allegations of wrongdoing, had already settled some 1,300 claims without making any admission of liability, leaving the Duke and Lord Tom Watson, the former deputy Labour leader, the last men standing.
David Sherborne, the Duke’s barrister, and Anthony Hudson KC, for NGN, twice asked Mr Justice Fancourt for an adjournment to allow negotiations to take place.
But when they returned to court to ask for a third delay, the judge said he could see no reason why the trial could not proceed in parallel with the discussions.
David Sherborne (left) is representing the Duke – BENJAMIN CREMEL/AFP
Visibly frustrated, he questioned why such negotiations had not taken place earlier, given that the facts remain as they did “yesterday, the day before and last week and the week before that”.
He added: “I am not persuaded that if there is a real will to settle this, first that it could not have been achieved by today.” He told the barristers they had had “ample time to seek to resolve their differences”.
The judge also said that he was “not satisfied” that the delay had “anything to do with the timetable in California”.
Just moments after Mr Justice Fancourt entered the courtroom at 10.30 on Tuesday morning, Mr Sherborne jumped to his feet and asked for a brief delay.
He also asked the judge to ensure that skeleton arguments – the outline of each sides’ case – were not distributed in the meantime.
“I have been asked to ask your Lordship if we can have a short adjournment for an hour,” he said. “I appreciate that might cause some inconvenience.”
Further delays
When the trial resumed at 11.30am, Mr Sherborne asked for “a further period of time to continue discussions”.
He acknowledged that it put the trial timetable under pressure but said that some witnesses due to give evidence next week were no longer set to be cross examined, giving them “some wiggle room”.
The judge reluctantly agreed but said that would be the final adjournment.
When the court reconvened at 2pm, the judge was visibly irritated when Mr Sherborne asked for a third delay.
“We don’t do that lightly but we do believe that a couple of hours more today, given the progress that has been made between the parties, may be productive,” he said.
Mr Hudson agreed, adding: “There have been very intensive discussions over the last few days… solicitors on both sides are involved in intense negotiations and the reality is we are very close.
“There is an issue with time – getting instructions because of the time difference – and those time difficulties will be resolved very shortly this afternoon.”
‘Secret hearings’
In urging the judge not to start the trial until discussions had ended, he said there were “other matters, which will occur when the trial starts, which will have a very significant impact on the settlement dynamic”.
Mr Hudson revealed that “a very substantial sum becomes payable once the trial starts”,which appeared to be a reference to legal fees.
The judge refused further delays insisting that he would not allow “secret hearings” to take place outside the court.
He said he had seen nothing in the skeleton arguments that contained any “shocking new episodes or allegations” that had not already seen the light of day and could not see why the trial should not begin.
He then refused the parties permission to appeal against his decision, but said: “I’m not going to stand in the way of access to justice if the parties wish to go to the Court of Appeal.”
It was confirmed on Monday evening that the Duke would not attend the opening of his trial, although no explanation was given.
Mr Justice Fancourt has repeatedly urged both sides to find a resolution, warning that the case resembled a campaign between “two obdurate but well-resourced armies”.
The hearing is due to resume on Wednesday.
