Before :

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Mr M. Tugendhat Q.C. and Mr D. Sherborne (instructed by Messrs Theodore Goddard) for the Claimants

Mr J. Price Q.C. and Mr G. Fernando(instructed by Messrs Charles Russell) for the 1st to 3rd Defendents

Miss H.T.M. Mulcahy (Solicitor Advocate of Messrs Reed Smith) for the 4th and 5th Defendants

Hearing dates : 3^rd –5^th February 2003, 7^th February 2003,

10^th-14^th February 2003, 17^th-21^st February 2003,

24^th-26^th February 2003, 3^rd March -7^th March 2003,

10^th March -12^th March 2003

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I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

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Mr. Justice Lindsay

Mr Justice Lindsay:

1. The well-known film stars Mr Michael Douglas and Miss Zeta-Jones married at the Plaza Hotel in New York on the 18^th November 2000. It was, said one witness, the event of the year. Extensive security arrangements had therefore been made, intended to ensure that access to the ceremony and reception would be denied to all but the family members and friends who had been invited and the attendant staff, who had been put on terms to keep the wedding confidential. The bride and groom hired their own selected photographers and it was made plain that other photography was not to be permitted. In making such arrangements the bride and groom were doing as they were bound by contract to do as they had sold exclusive photographic rights of the event to OK! magazine, although they had retained control over the selection of such pictures, taken by their own photographers, as they should choose to release to OK!. The security arrangements thus were intended to serve the three-fold purposes of confining the event to family and friends, of ensuring that only authorised photographs were taken and of preserving the exclusivity of the photographic rights for which OK! had paid £1m.
2. The wedding passed off as a great success, enjoyed by all present but, unknown to any as the events unfolded, it soon thereafter transpired that one intruder, a photographer, had eluded security and had surreptitiously taken relatively poor photographs which were then bought for publication in OK!’s rival magazine, Hello!. The Douglases and OK! , then, as now, represented by Mr Tugendhat Q.C. and Mr Sherborne, quickly moved in England for an injunction to restrain publication and they obtained that relief. However, the Court of Appeal acceded to Hello!’s arguments and lifted the injunction, leaving the Claimants to claim in damages.
3. In the result, Hello! published the unauthorised photographs on the same day as that on which OK!, having had to bring its arrangements forward, published parts of the full authorised portfolio of photographs covering the event, approved by the Douglases, for which it had paid.
4. As the litigation developed other parties were added as defendants and other causes of action beyond the initial claims were added. The parties to the action now, as Claimants, are, as they were from the outset, Mr Douglas and Miss Zeta-Jones (now Mrs Douglas) as 1^st and 2^nd Claimants and the publishers of OK!, Northern & Shell plc, as 3^rd Claimant. It will be convenient to refer to the 3^rd Claimant simply as "OK!".
5. On the Defendants’ side, Hello! Limited, the 1^st Defendant, is a subsidiary of the 2^nd Defendant, Hola SA; the 2^nd Defendant publishes Hello! magazine and the 1^st Defendant distributes it in the United Kingdom. The 3^rd defendant is Eduardo Sanchez Junco, a director of and controlling shareholder in Hola SA and Editor-in-Chief of Hello! magazine. I will call the first three Defendants "the Hello! Defendants". They appear by Mr James Price Q.C. and Mr Fernando. The 4^th defendant, the Marquesa de Varela, is a person who has frequently supplied features for use in Hello! magazine and in Hola, its Spanish sister publication. The 5^th defendant is a company owned by the Marquesa de Varela. They appear by Miss Mulcahy. The 6^th defendant, Philip Ramey, is a paparazzo photographer who also has a photographic agency in California. He was not the photographer of the unauthorised photographs but it was he who sold them to the Hello! Defendants. He has not been represented and has taken no part before me. The Claimants propose to move against him later and do not seek relief against him at this stage.
6. A split trial was ordered so at this stage I am concerned only with whether there is liability in one or more of the first five defendants to one or more of the Claimants. If I find there to be such a liability I shall not be concerned with attempting to ascribe some monetary figure to that liability or even with determining how that should be done.

The procedural history

7. The procedural history is more complicated than one might expect as, quite apart from collateral skirmishes, there have been, as I shall relate below, two interlocutory hearings at first instance followed by one abortive appeal to a two man Court of Appeal and then a successful appeal to a three man Court of Appeal. Then, a good deal later and only shortly before the trial began, there was an unsuccessful application to the Vice-Chancellor for the striking out of the defences of the Hello! defendants, an application on which Senor Sanchez Junco and three witnesses for the Hello! Defendants were cross-examined.

Paparazzi

 

8. As I shall explain in the course of the narrative, the photographer who took the unauthorised photographs, a Mr Rupert Thorpe, was in some form of loose association, the details of which are not known, not only with the 6^th defendant, Mr Ramey, but also with two others, Frank Griffin and Randy Bauer. All carry on business as paparazzi, a term especially used and which I shall use to include those photographers whose business it is to take photographs of events and celebrities where access to photographers generally to the event is forbidden or limited and where the consent of the celebrities to be photographed is known or likely to be refused and is thus dispensed with by the paparazzi concerned. In varying degrees, as may become necessary for them to obtain the photographs they seek, they turn to deception, to intrusion and, occasionally, to unlawful behaviour. Mr Ramey, in particular, has a reputation of being able to get in where others were unlikely to be able to.

Intrusion, in context

9. These proceedings have already attracted a good deal of public and press attention such that there are two points that I should mention as to be borne in mind. The first is the extent to which celebrities of the status of Mr Douglas and Miss Zeta-Jones, whilst, of course, welcoming much of the publicity that surrounds them, can also find their privacy or ordinary life severely curtailed. Thus the undisputed evidence before me includes, for example, that Miss Zeta-Jones has been frightened by a photographer jumping out of a doorway at night to photograph her, that on another occasion she swerved her car into a lamp-post trying to escape from a paparazzo and that the Press got hold of and published the fact of her pregnancy even before she had had all the medical tests she had wanted to take and before even she had told her close family of it, including her mother. When she was in hospital after the birth of her son, journalists tricked their way into the hospital by pretending to be members of her family. When she was wheeled from the delivery room back to her room in the hospital she was covered by a sheet to avoid being photographed by the photographers who had tricked their way in. In one remarkable incident when her son was only one week old he, with his nanny, was in a car driven in California by Miss Zeta-Jones. Photographers for a British tabloid newspaper deliberately ran into the car. Under Californian law Miss Zeta-Jones had to get out of the car to exchange details. Her evidence continues, of the photographers:-

"They immediately jumped out of their car and took photographs of me looking furious at the side of the road. They then published them in an article about me being consumed by road rage."

Hardly surprisingly, her evidence continued:-

"This incident made me very angry."

It is easy to see, against such a background, how celebrities may become especially defensive, though I add that this case is nothing to do with photography of either Mr Douglas or Miss Zeta-Jones in public.

10. The other point I make is that whilst the Claimants’ case is now chiefly for money it was not always so and it was not by their choice that it became so. What all Claimants first moved for was an injunction to restrain publication. The case only became chiefly for monetary compensation after the three-man Court of Appeal had ruled that the existing injunction was to be undone and that the Claimants would have to be satisfied with claims in damages.

The Magazines

11. Hola has been published in Spain for over 50 years and the three versions, "Hola" in Spanish, "Hello!" in English and "Oh La" in French are sold in almost 60 countries. Hello! has been circulated weekly in the United Kingdom for some 12 years and is bought by an average of some 456,000 people per week, leading, it is said, to a readership of some 2.2 million people per week. It is sold through about 55,000 outlets in the United Kingdom, going on sale on Tuesdays in London and on Wednesdays in the rest of the country. It is printed in Spain and published by Hola SA. The cover price in 2000 was £1.55.
12. OK! is printed in England and published weekly by the 3rd Claimant. It is a more-recently-established magazine than Hello!, that being broadly reflected in the issue numbers at the time of the Douglas wedding, namely number 639 for Hello! and No. 241 for OK!. Its cover price in 2000 was £1.85. It normally comes out on Thursdays in London and on Fridays throughout the rest of the United Kingdom. In November 2000 OK! sold about 455,000 copies per issue on average.
13. Whilst, no doubt, each magazine has especial characteristics which commend it to particular prospective customers, less discerning readers will find much that is common to both. Indeed, there is some strong feeling amongst London staff at Hello! that OK! is a copycat. Both magazines are of similar size and shape and provide a regular diet of photographs and text of and about Royal but, more usually, entertainment, sporting and social celebrities, with photographs taking precedence over text. Many of the main features are in the highest degree posed and show, for example, the celebrity’s yacht or home or show his or her engagement or wedding. Many such features will have been commissioned by arrangement with the subjects and paid for by the magazine in question, the more celebrated or newsworthy celebrities being able to command, should they wish, higher fees than the less celebrated. Other photographs, whilst such that the subjects can be seen to be very aware of and, as it would seem, content with the camera, are far less formal and record, for example, arrivals at a party or at the opening of a film. Each magazine includes from time-to-time photographs taken, so far as one can judge, without the subject’s knowledge or consent but they represent a minority overall.
14. There are brief passages about travel, cooking, "lifestyle" and health advice and as to current television programming. There are short features on particular celebrities in the news in the current week. The texts generally are, if not unquestioning or flattering, at least warm as to the celebrities featured, no doubt for the practical reason that if that were not so the supply of willing celebrities might dry up.
15. The two magazines are plainly keen rivals in the same market and were so in 2000.

Evidence

16. On the Claimants’ side I heard oral evidence from Miss Zeta-Jones, Mr Michael Douglas, Mr Allen Burry (Mr Douglas’ Executive Assistant and Publicist), Miss Simone Martel Levinson (the Event Planner engaged by the Douglases to organise their wedding), Ms Cece Yorke (Miss Zeta-Jones’ Publicist), Mr Martin Townsend (formerly Editor of OK! magazine, in office at the time of the wedding) and Mr Paul Anderson (Picture Editor of OK! magazine). The evidence of Miss Levinson and Ms Yorke was given by video link to and from the United States.
17. So far as the Claimants’ expert evidence was concerned, I heard oral evidence as to New York law by video link from Professor Arthur J. Jacobson, Max Freund Professor of Litigation and Advocacy at the Benjamin N. Cardozo School of Law in New York City. The claimants’ evidence as to Spanish law was given orally by Senor Enric Enrich, Senior Partner of the Barcelona firm of Advocates, Enrich Amat I. Vidal-Quedras, former co-Chairman of the Committee of Intellectual Property of the International Bar Association and currently the Chairman of the Copyright and Image Rights’ section of the Barcelona Bar Association.
18. All of the above-described witnesses were cross-examined, each having supplied one or more witness statements or reports.
19. On the Defendants’ side the main body of evidence came from the Hello! Defendants. Senor Eduardo Sanchez Junco gave his oral evidence by way of an interpreter as he speaks little or no English. Senor Javier Riera, Managing Director of Hola SA, did the same; he has sufficient command of written English to comprehend untechnical and straightforward documents. His Personal Assistant, Senora Elisa Sanchez-Ferragut Arnau (conveniently and, as I hope, without offence, usually referred to during the hearing as "Senora Elisa") gave her oral evidence through the interpreter. Mr Anthony Luke, co-Ordinating Editor of Hello! magazine, who works in Madrid and has fluent Spanish, spoke in English. Hello!’s Publishing Director, Sally Amanda Cartwright, who also has good Spanish, gave oral evidence, as did Maria José Doughty, a native Spanish speaker but whose English is impeccable. She is Administration and Financial Controller at Hello! Limited in London. Mr Christopher Mark Hutchings, solicitor, a partner in Charles Russell, solicitors to the Hello! Defendants, also gave oral evidence, as did Margaret Koumi, the Editor of Hello! in 2000. All of these witnesses had supplied one or more witness statements and all were cross-examined.
20. The Hello! Defendants’ expert evidence consisted of the evidence of Professor Diane L. Zimmerman on New York law and of Senor Miguel Engel Rodriguez on Spanish law. Professor Zimmerman, Professor of law at New York University, gave oral evidence by video link and Senor Rodriguez, a member of the Madrid Bar and until recently associate professor of constitutional law at Universidad Autonomia at Madrid, gave his oral evidence here in London through an interpreter. Both had put in one or more written reports.
21. Oral evidence on behalf of the 4^th and 5^th Defendants consisted of the evidence of the 4^th defendant herself, Maria J. Marin, also known as the Marquesa de Varela, and her personal assistant, Pirjetta Mildh, both of whom had a complete command of English despite its being the mother tongue of neither. No expert evidence was put in on behalf of the 4^th and 5^th Defendants. Each of the Marquesa and Miss Mildh put in one witness statement; a second was prepared for the Marquesa but did not find its way into evidence.
22. In a category of her own amongst those who gave oral evidence was Sue Neal, no longer an employee of Hello! or Hola SA but formerly a Picture Editor working in London for Hello!. She had prepared two witness statements; one was prepared by the solicitors for the 4^th and 5^th defendants, one by the solicitors to the Claimants. Neither the 4^th and 5^th Defendants nor the Claimants chose either to call Miss Neal or to put in either or both of her witness statements but at a late stage in his case Mr Price Q.C. chose to put in her witness statements as hearsay evidence under CPR 32.5 (5). That led Mr Tugendhat Q.C. to apply to cross-examine on her statements under CPR 33.4 (1). I ruled that he could do so and the Court of Appeal, in an interlocutory ruling, upheld that decision. Accordingly Miss Sue Neal was cross-examined by Mr Tugendhat and re-examined by Mr Price.
23. Mr Phillip Ramey, the 6^th Defendant, a photographer well known as a paparazzo and who also conducts a photographic agency, has put in a defence (with a statement as to its truth) and a witness statement but otherwise, as I have mentioned, has taken no part in the proceedings. Much of his witness statement is uncontroversial or is confirmed by other evidence but in the absence of his having submitted himself for cross-examination I do not feel able to attach weight to his assertions that he offered European rights to the unauthorised pictures to the Marquesa or that she bought them from him, either on arms’ length commercial terms or at all.
24. There have been several other witness statements by or on behalf of individuals who have not given oral evidence, some on topics which do not yet need to be pursued, and notice as to hearsay evidence has been given in respect of some but I have not felt that any either displaces or adds significantly to conclusions formed on the basis of the other documentary evidence and the evidence given by witnesses whose evidence has been tested by cross-examination.

The Narrative begins

25. A chronological order will occasionally have to be departed from but I shall attempt, as far as practicable, to set out the facts I find in that order.
26. Miss Zeta-Jones and Mr Douglas met in September 1998. A relationship developed. Later they had a holiday together. Articles began to appear in the Press about them as a couple. That they might become engaged and marry began to occur to OK! as, doubtless, it did to Hello!. Such events would be exactly the kind each would want to cover. On the 6^th September 1999, before any engagement had been announced, OK! offered £1m "subject to contract" for exclusive photographic rights for the engagement, wedding, honeymoon and for Miss Zeta-Jones’ 30^th birthday party.
27. In September 1999 OK! acquired exclusive photographic rights by contract to the wedding in California and honeymoon of the television presenter Jenny McCarthy and John Asher for $100,000. A term of the contract was that the bride and groom should, at their own expense, provide such reasonable security at the wedding as was reasonably necessary to ensure that unauthorised photographers, journalists and members of the public would be unable to gain access to the grounds and premises so as to minimise the risk of photographs of the wedding being made available to the media. OK! was to make a full feature of the events. Nonetheless, Hello! acquired and published photographs of the wedding, one at least of which has the appearance of being an out-of-focus shot, surreptitiously taken from a low level by a camera of which the bride and groom appear ignorant. Invoices sent to Hello! in respect of the pictures it used were from, respectively, Messrs Ramey, Griffin, Bauer and Thorpe, all photographers to whose names I shall need to return. The invoices bear words, added in handwriting at Hello!’s office, such as "Ordered by Marquesa and Eduardo" and "Commissioned by Marquesa and Eduardo". Mr Ramey makes reference to a "Day Rate" in his invoice and does not identify the event photographed, referring instead to a "Special Project". The others openly refer to the McCarthy wedding. Mr Bauer’s invoice refers to " 2 days". The invoices bear marks indicating that they were processed in London. These details came to light only in the course of the trial, after the Marquesa’s evidence was concluded. There was no application for her recall. That she had (with Senor Sanchez Junco) an involvement in the arrangements made for the unauthorised photographs is plain not only from the superscriptions on the invoices but also from the fact that Hello! paid her a "fee for Jenny McCarthy wedding" of £5,000. Although such photographs of paparazzi type were not her usual style, that she could and would take a hand in arrangements for them is plain. OK!’s big feature on the wedding in their issue of 24^th September 1999 had some, at least, of its exclusiveness diminished by the unauthorised photographs in Hello!’s Issue 579. The Marquesa was able to crow to Anthony Luke, the co-ordinating Editor in Madrid, that:

"My paparazzi spoiled OK!’s Jenny McCarthy wedding."

In respect of aspects of the handling of the Douglas wedding, both sides made reference back to the McCarthy wedding, to emphasise similarities (as did the Claimants) or differences (as did the Hello! Defendants).

December 1999

28. In December 1999 Miss Zeta-Jones became pregnant with Mr Douglas’ child. At a millennium party they agreed they would marry. They started to plan their wedding. They picked New York as a venue roughly central between the United Kingdom to the east and California to the west. The Plaza Hotel was chosen as it had a proven track record for hosting large-scale events which required security. It was also a place where guests could stay and, as Miss Zeta-Jones planned to stay there, she could procure that her arrival at the wedding would not (as she put it) be turned into a media circus.
29. Miss Zeta-Jones did not want to be forced to have her wedding in secret. She had always wanted it, she said, to be a very special day and it was important to her that her family, in particular, would be there to share it with her. There was concern that media intrusion might destroy the intimacy and joy of the event. Miss Simone Martel (Levinson) was brought in, an experienced event planner. She was told that the bride and groom wanted the wedding to be personal, romantic, intimate and unforgettable.
30. Miss Zeta-Jones’s pregnancy was thought to be a closely guarded secret but in January 2000, only some 7-8 weeks into the pregnancy and, as I have touched on already, before Miss Zeta-Jones had either had all of the medical tests which she wished to have or had told her close family, she found that the Sun newspaper had learned of the pregnancy and was going to publish the story. She was forced into announcing the pregnancy to her family before she was ready to do so. As this was to be her first child she had particularly wanted to have every possible test before giving the news to her family. Her enquiries suggested that paparazzi had obtained the information from an assistant in the office of the lawyers then acting for her. Her pregnancy became public knowledge.
31. OK!’s offer for an exclusive was accordingly modified to include a sum for photographs of both parents and the baby. From about March 2000 Hello! was also in contact with Mr Allen Burry, Mr Douglas’ Publicist, but Mr Burry had not found it easy to deal with Senor Sanchez Junco’s calls because of the language difficulties. The prospective bride and groom had not yet decided whether to permit a feature to be published either of the baby or of the wedding.

April 2000

32. The Marquesa entered the lists in April 2000. Her personal assistant, Pirjetta Mildh, was in contact with Mr Burry, from whom she heard of his dissatisfaction with his dealings with Madrid. Mr Burry was not averse, though, to dealing with the Marquesa, who made contact with him. The Madrid office of Hello! and Senor Sanchez Junco continued to approach Mr Burry but to no effect save that Mr Burry’s displeasure with Madrid grew. The Marquesa felt strongly that Senor Sanchez Junco was mishandling matters, that Hello!’s bid would be far better conducted by her and that, left to itself, Madrid was likely to drive any "exclusive" into the hands of OK!. The thing that Mr Burry had not been able to get Madrid to grasp, as he put it to Miss Mildh and as she related to the Marquesa, was:-

"Money is not the point! The point is doing it with the magazine they like and trust and have a good working relationship with so they can have a lovely wedding without any worries."

Both OK! and Hello! continued to make offers but Miss Zeta-Jones and Mr Douglas remained undecided not only as between those offerors but as to coverage of the prospective events at all, the events, by May, being, of course, not only the wedding but the earlier birth of Miss Zeta-Jones’ first child, expected in August 2000.

33. On the 3^rd May 2000 the Marquesa, for Hello!, wrote to Mr Burry to say that Senor Sanchez Junco offered $500,000 for exclusive pictures of the mother and father with their baby and £1m for the wedding. Mr Burry, though, had wanted clear written proposals from Hello!. That elicited a further offer from Senor Sanchez Junco, now put at $1½m for the wedding alone. His proposals, which he described as "The biggest investment ever made by our magazine", included that Hello!’s own photographers should cover the event as well as those selected by the bride and groom. He was also keen to ensure that the one approved picture, which the couple were going to release generally and gratis to the media on the day, should not be released until Hello! had appeared on the market. He also wanted that free picture to be "a medium shot" rather than a close-up or full-length photograph. Neither of those provisions was likely to commend itself to the couple.
34. At Hello! it was felt, rightly as it transpired, that negotiations were going OK!’s way. The Marquesa felt that if the exclusive for the baby was lost to Hello!, it would be likely to lose the wedding as well. Hello!, by way of the Marquesa, on the 21^st July increased its offer to $600,000 for the baby pictures and £1m for the wedding but to no avail.

August 2000

35. On the 8^th August 2000 Senor Sanchez Junco, disappointed and feeling that Hello! would not get the exclusive, telephoned the Marquesa, who was in New York trying to encourage Mr Burry to deal with Hello!. She told Senor Sanchez Junco that if the couple would not deal with Hello! then the only option was to contact, and buy pictures from, paparazzi. There was nothing new about that as a possibility to Senor Sanchez Junco; he has bought pictures from paparazzi including the two I shall next mention, for years. Senor Sanchez Junco told her that Sue Neal, the Hello! Pictures Editor in London, was already in contact with two paparazzi, Phil Ramey and Frank Griffin. In so holding I have preferred the evidence of the Marquesa to that of Senor Sanchez Junco. Of the two photographers, both had wide reputations as paparazzi. Mr Ramey, in particular, a difficult man to deal with, was renowned as an aggressive photographer; as the Marquesa put it:-

"You know, he can get into anyone’s house and do the pictures."

Sue Neal described him as a confident gatecrasher. Senor Sanchez Junco knew of his reputation. The Marquesa volunteered to get in touch with the paparazzi and did so. It suited both Senor Sanchez Junco and the Marquesa that it should be the Marquesa who should contact the paparazzi. Senor Sanchez Junco might well have felt disappointed at his own handling so far of the Douglas wedding and would in any event have been willing to pass it to the Marquesa but more probable was it that he, in this respect a cautious or even fearful man, saw it to be unwise to be seen to be in direct contact with paparazzi whose means of obtaining photographs, certainly any inside the wedding, might well be at best dubious or at worst unlawful. The Marquesa, whose star had been waning at Hello!, was not unwilling to have the chance of emerging as the "fixer" who could come up with some solution where all others had failed, thus hoping to restore herself more fully to Senor Sanchez Junco’s favour.

36. The Marquesa told each of Ramey and Griffin that Senor Sanchez Junco was keen to get first refusal on any pictures that might be obtained of the Douglas wedding. Each said that he already dealt with Sue Neal and that the wedding had already been discussed with her.

The $10,000

37. Mr Ramey asked the Marquesa whether Senor Sanchez Junco would be prepared to pay $10,000 as a sign of goodwill, because expenses would be incurred. In her witness statement the Marquesa says:-

"I assured Mr Ramey that I did not think this would be a problem but I would ask Eduardo if he was willing to accept Phil Ramey’s request."

38. It has since suited Mr Ramey to describe that conversation to Hello!, including to Sue Neal, as a promise of $10,000 in any event and it is likely that the Marquesa did express herself to him with some assurance as to the $10,000 being paid. In an e-mail much later, of the 17^th December 2000, she wrote, of the $10,000, "That I could assure him of that". But I accept also that when she spoke to Senor Sanchez Junco on the point he told her it would not be paid and that she passed the message on to Mr Ramey, but coupled with the encouraging addition that Senor Sanchez Junco would pay (meaning pay well) for good pictures. If there had been a clear promise of $10,000 in advance either for pictures or for a right of first refusal it was, I hold, soon supplanted by Mr Ramey being left in no doubt, instead, that Hello! was very keen to acquire pictures, however they might be taken, and, as the Marquesa put it, "there’s nobody who has paid like Mr Sanchez".
39. On the 16^th August 2000 the Marquesa sent a draft contract to Mr Burry under which the deal would not be with Hello! but with a company of hers, Marquesa Productions Limited of the British Virgin Islands. She had not appreciated that Mr Burry would not recommend any contract other than directly with a magazine-publisher .
40. Hello! further harmed its cause when it bought paparazzo pictures of the mother, father and baby after the birth of Dylan Douglas to the couple in August 2000. OK! had succeeded in obtaining exclusive picture rights to photographs of the parents with their new baby. The "shoot" went well and the parents developed a trust in Martin Townsend, OK!’s Editor. The money for the photographs was put into a trust for the infant Dylan Douglas.
41. By contrast, as the couple, the three week old baby and their nurse left the hospital, paparazzi managed to take photographs without the parents’ consent nor, so far as one can tell, with their even being aware that they were being photographed. Similar photographs were taken of the mother, father and baby without the nurse. Hello! bought those pictures and published them. When the Marquesa pressed Hello!’s case by referring to how vulgar, she said, had been OK!’s coverage of another celebrity wedding, Mr Burry’s response was:-

"At least OK! was smart enough to turn down the hospital departure pictures when they were offered to them."

42. Hello! was not prepared to give up. It attempted to make fresh contact by other intermediaries; desperation was setting in, with Senor Sanchez Junco not only having in mind, of course, payment to the bride and groom but even payment of substantial sums to an intermediary who might restore contact with them. It was to no avail; on the 6^th November Mr Burry indicated that the couple had decided that they would offer the wedding for publication, but to OK!. Mr Burry turned to giving Mr Townsend details of the event.

Autumn 2000

43. The plan, in outline, was for a wedding in New York at the Plaza Hotel with a dinner the night before at the Russian Tea Room for the guests from out of town. The ceremony itself was to be conducted by a judge and was to be non-denominational. There were to be some 360 or so guests, of whom 84 were to be the bride’s relatives and friends flying in from the UK and the rest were the groom’s family and mutual friends of bride and groom.
44. That was the plan but, for the moment, it lay in the future. In the meantime, Sue Neal, in London had almost daily contact with Phil Ramey and Frank Griffin, part of a clique which included Rupert Thorpe and Randy Bauer. Sometime around August 2000 Mr Ramey told Miss Neal that "Your Marquesa" had told him that Senor Sanchez Junco had asked her to see if it was possible to get photographs of the Douglas wedding. Mr Ramey told Miss Neal that he preferred to deal with someone he knew. By that he meant Miss Neal. Miss Neal got the impression that the Marquesa had had only one or two conversations with Mr Ramey.

Mr Luke told Miss Neal that Senor Sanchez Junco was seeking to obtain pictures of the wedding from any source. Miss Neal told Mr Ramey that if he wanted to send pictures of the wedding to Hello! that that was up to him but she did tell him that Senor Sanchez Junco was extremely interested in obtaining them. She left it on the basis that Mr Ramey was not obliged to supply any, nor was Hello! to accept any. Her understanding was that Senor Sanchez Junco was dealing with the Douglas wedding himself instead of the Marquesa.

45. In his frequent calls to Miss Neal on other subjects Mr Ramey would try to find out whether Hello! had managed to get exclusive rights to the wedding. He wanted to know so as to target whichever magazine had not got the exclusive. Sue Neal at that stage knew nothing and told him nothing; it was left as a subject to be reverted to nearer the time of the wedding.
46. Miss Martel Levinson did her best in the course of her arrangements for the wedding, to ensure that the venue of the wedding was kept secret. Suppliers or prospective suppliers of goods and services were asked to sign confidentiality agreements. Many are in the evidence. After the wedding it was found that a few people had not signed such agreements but her evidence, which I accept, was that:-

"… Everyone whom I hired to deal with some aspects of the wedding knew from my discussions with them that the plans for the wedding were confidential and were not to reach the public arena."

47. Unfortunately one of the florists who had tendered for the work, albeit unsuccessfully, told the New York Post, who then published, that the wedding was going to be held at the Plaza Hotel. The original plan had been to tell invitees only that the wedding was to be in New York City on November the 18^th 2000, the precise venue and time then to be given only at the last minute. The florist’s breach required a change of plan. The invitations went out in their original form but on acceptance a second notice was sent indicating that the wedding was to be at the Plaza at 7.0 p.m., coupled with a request from the bride and groom that no photographic equipment should be brought. The message – "We would appreciate no photography or video devices at the ceremony or reception" – whilst not an outright prohibition, was as nearly so as one might reasonably address to family and friends. An entry card was required to be produced at the entrance to the Rose Room on the evening of the wedding. Entrance to the Hotel was to be by way of the Rose Room.

A strategy for the wedding

48. Whilst reflecting on their possible arrangements for the wedding, Miss Zeta-Jones and Mr Douglas looked back on the successful event that had been the presentation to the public of their baby, Dylan. The exclusive rights sold to OK! had led to excellent photographs being published without any real media intrusion. Miss Zeta-Jones’ witness statement says, and I accept, as follows:-

"When considering how to deal with the inevitable media interest in our wedding we ultimately decided to go down the same route that we had chosen in respect of Dylan’s birth. We decided that, with a view to reducing the media frenzy for photographs of the wedding and protecting our wedding day from the inevitable media intrusion, we would reach an agreement with a magazine which we would allow to publish a limited number of our wedding photographs. We hoped that once the rest of the media found out that we had entered into such an arrangement they would be less interested in trying to infiltrate our wedding. This would leave us and our guests free to enjoy the day without worrying about the media. Both Michael and I also accept that as celebrities we have an obligation not to ignore those people who make us celebrities, the people who pay money to watch our movies. One of the reasons that we decided to reach a deal with a magazine was to make contact with our fans and to avoid the accusation that we had shunned them or were too aloof. We wanted to do so in a context where the choice was ours as to what was and was not published about our wedding, not left to a media free-for-all."

49. Mr Douglas’ evidence in the same area was to similar effect though more emphasising control. He said:-

"Eventually, we decided that the best way to control the media and to protect our privacy would be to reach an agreement with a single magazine or newspaper who would have the rights to publish photographs of, and text about, our child and our wedding, and to syndicate the photographs and text to specified and pre-agreed publications around the world."

50. Miss Cece Yorke, Miss Zeta-Jones’s Publicist, thought the strategy a good one. She said:-

"I really felt that if other publications knew that one magazine was going to have an exclusive story with beautiful photographs and access to Michael and Catherine they would think there was no point in publishing poor quality photographs with no quotes from the bride and groom or the family. It seemed to me that the public would want to see the beautiful photos and to hear the real story and that would be the calculation that the media would also make. I believed that the exclusive arrangement with OK! was the best option in the circumstances. We decided that we would also release one official photograph to everyone else on the actual day of the wedding (since the official photographs would not be published in OK! for a little while)."

51. An initial view, that there should be no press involvement at all and that the media would have to be satisfied with one released authorised photograph, was thought to be unrealistic. The media would try to get their own photographs. Other celebrity weddings had been spoilt by intrusions. Having the wedding at the Plaza eliminated the risk of helicopters that had intruded in other cases but Mr Burry said:-

"….. Having seen the determination and lack of scruples of the media at earlier celebrity weddings, we became more and more convinced that we should provide, on an exclusive basis, official photographs of the wedding personally selected by the bride and groom to a single media organisation who would then syndicate those photographs to other publications of our choice. It was our hope that the rest of the world’s media would be discouraged from trying to infiltrate the wedding as they would know that the official photographs would be published and syndicated exclusively elsewhere. We thought that by providing a limited number of "authorised" pictures of the wedding we would reduce the price that illicitly-obtained photographs of the wedding could command and therefore reduce the incentive of any photographer to take such photographs. In the past I have found that if you give an exclusive to one magazine its rivals tend to be philosophical, hoping that they will get the next exclusive. They will act accordingly, not wanting to damage their chances of an exclusive in the future. We all thought that this would be the best way for Catherine and Michael to retain their privacy and the intimate and private nature of the wedding."

52. Mr Price cross-examined as to this strategy, broadly suggesting that it was more for money than for privacy, could not be expected or be believed to work and was aimed at control of the media. That it involved control was plain. But, as to money, Mr Douglas pointed out that neither bride nor groom nor publicist approached the magazines but the magazines had approached them. Nor had the bride and groom or their agents negotiated about price. Indeed, they could very readily have organised transactions so as to have received more than they did. As for the strategy, it worked (as will transpire) for all but one paparazzo and, as Mr Douglas said:-

" …… it was not that we did not think that the public would not be interested, we thought that the paparazzi’s desire would be lowered because they would not have very many outlets, and therefore they personally would not be able to make as much money selling them individually, so that they said, "Oh well, I don’t think its worth it."

On the evidence I hold that the notion of an exclusive contract as a means of reducing the risk of intrusion by unauthorised members of the media and hence of preserving the privacy of a celebrity occasion is a notion that can reasonably be believed in as a potentially workable strategy to achieve such ends and was honestly believed in by Miss Zeta-Jones, Mr Douglas and their advisers. The fact that, because of one lapse, the strategy failed does not disprove its reasonableness, still less that it was believed in. Whilst I would not hold the £1m on offer to be other than a real blandishment even to a couple as rich as Mr Douglas and Miss Zeta-Jones, I see their expectation that an exclusive contract to one selected publisher offered the best strategy for obtaining a wedding of the kind they both wanted and offered also the certainty of fair coverage of it as their chief reasons for making such a contract.

The Contract with OK!; 10^th November 2000

53. On the 10^th November 2000 basic terms of a contract under Californian law between OK! and Mr Burry on behalf of the bride and groom were agreed in writing. £500,000 was to be paid to each of "MKD" and "CZJ" not later than a week before the wedding. OK! was given exclusive rights to publish photographs selected for the purpose by "MKD" and "CZJ".. Each of "MKD" and "CZJ" was given "copy caption and headline approval over any syndication of the photographs", such approval not to be unreasonably withheld. The photographs were to be in colour and were to be taken by photographers chosen and paid for by "MKD" and "CZJ", who were required (clause 6) to:-

"… Use their best efforts to ensure that no other media … shall be permitted access to the wedding and that no guests or anyone else present at the wedding (including staff at the venues) shall be allowed to take photographs."

54. Copyright in the photographs was to be in "MKD" and "CZJ", who were to approve such photographs as they chose to release not later than 22^nd November 2000. Text approval was also given to "MKD" and "CZJ". The Douglases could, had they wished, have chosen to release no photographs or too few to make a feature, but on pain of repayment to OK! (clause 9). If syndication brought in more than £1m the excess was to be split 50% to OK! and 25% each to "MKD" and "CZJ", but OK! was to have the first £1m. Clause 16 provided:-

"MKD and CZJ will take all reasonable means to provide such security (approved by OK magazine) during the entirety of the wedding proceedings at the wedding venues as is necessary to ensure that third party media …. and/or members of the public and/or staff hired or employed for the wedding are unable to gain access to the relevant wedding grounds and the venues in order to minimise the risk of photographs and/or footage of the wedding (including but not limited to photographs/footage of the wedding dress, the ceremony and the party) may be made available to third party media. "

55. In the week beginning the 13^th November, the week before the wedding, Hello! was alive to a prospect of getting photographs from inside the wedding. Mr Luke told Sue Neal that "We might be getting something". Senor Sanchez Junco said so to Mr Luke, as did Maggie Koumi, the London Editor. Both Phil Ramey and Frank Griffin told Sue Neal "Don’t forget the weekend". On Thursday the 16^th or Friday the 17^th Mr Ramey told Miss Neal that he was trying to get someone into the wedding to take pictures. She told that to Mr Luke, who asked her to go into work over the weekend. That was so that technical incompatibility problems could be overcome by pictures from the USA going to Madrid via London. There was confidence that at the very least there would be pictures from outside the wedding, of the guests arriving.

The Russian Tea Room; 17^th November 2000

56. As planned, a dinner was held the night before the wedding at the Russian Tea Room. The photographs of this event, later spread over some 8 or 9 pages in Hello!'s Issue 639, show the Press to have been there in massive strength. Mr Douglas and Miss Zeta-Jones paused to pose frequently for photographs, as did members of the respective families and their friends.

Hello! makes arrangements

57. In the meantime, Hello! was planning the Issue (No. 639) of Hello! due to appear next after the wedding, on Saturday the 18th November 2000. It was scheduled to be distributed in London on Tuesday the 21^st November and in the rest of the UK on Wednesday the 22^nd. It was not unknown in 2000 and earlier for the greater part of the magazine to be printed (in Spain, as then was the case), section by section, over the Thursday and Friday of a given week but with the final centre pages and, if appropriate, the cover and back page to be either re-cast or left to the last convenient time, either so as to cover an unexpected event or some event likely to happen at the weekend concerned. Late changes to the magazine shortly before or even after first going to print had been made on occasions such as the deaths of Jackie Kennedy Onassis and Princess Diana and upon John Kennedy Jr. and his wife going missing. A late special edition added photographs of Madonna’s wedding and her baby’s christening.

The Tuesday distribution date could not be postponed. Hello! had begun to plan for an Issue 639 which would have on its cover Mr Douglas and Miss Zeta-Jones outside the Russian Tea Room in New York on the Friday evening of the 17^th November. Neither OK! nor anyone else had exclusive rights as to that and it could be expected that there would be ample opportunity for photographs of the couple, their family and friends, as they arrived and left. At least photographs for the cover showing the couple could be expected to be obtained (leaving the centre to be filled with a different feature) but even that would leave a tight timetable because of the time difference between Madrid and New York and the time necessarily taken up with processing, selection, printing and movement to London for distribution by the Tuesday. Such movement was, in ordinary course, by lorry.

58. The photographs of the Russian Tea Room event arrived in Spain on Saturday the 18^th November. Mr Luke said at first that they arrived on Saturday morning but he settled into saying that they arrived late on Saturday. On that basis, printing of the cover and final section (leaving aside any prospect of later paparazzo photographs taken at the wedding itself) would probably not have started until Sunday the 19^th. On the question of whether, on that basis, lorries could not be used but recourse would have had to have been made to aircraft, Mr Luke said:-

"Yes it would have to have flown I think at that stage, because we were getting really late, and being in direct competition with OK! we could not lose any days on the [news] stand."

On that basis (which I accept) special arrangements would have needed to be made for airfreight even if only the Russian Tearooms photographs had been awaited.

59. Airfreight was arranged, additional copies of Hello! were ordered to be printed and staff were called-in, both in London and Madrid, to deal with the preparation of the magazine over the weekend. Mr Tugendhat argues that all this shows that Hello! was anticipating a high-selling issue and that it points to Hello!’s having commissioned in advance a breach of OK!’s exclusivity and an intrusion upon the Douglases’ privacy. He argued that Hello! had been assured of obtaining unauthorised photographs of the wedding.

There is, I would accept, some documentary support for such a view. The Hello! print records show that the print order was greatly increased; an invoice shows that a freight aircraft was chartered on the 17^th November for 173,950 Euros (part of which sum had to be paid whether the plane transpired to be used or not) and there is no doubt but that staff had been called in or retained to work at the weekend. There is, though, a good deal of contrary evidence indicating that there had been no assurance that paparazzo photographs would be available from inside the wedding or even that a right of first refusal had been given to Hello!. Senor Sanchez Junco in cross-examination was emphatic that there had been no prior commitment to any paparazzi to buy any photographs. I have already indicated that there was no unsupplanted agreement even that Hello! should have a right of first refusal (though it would be an obvious course for a paparazzo to approach Hello! first). Mr Luke’s evidence was that Senor Sanchez Junco was "a very visual man"; he would not pay anything, he said, for a picture before he had seen it and never paid paparazzi advance fees. Mr Luke also described the Douglas wedding as "an amazing event" for people who read magazines such as Hello! and OK!. It was, he said, the event of the year. Even if no photographs had been obtained from inside the wedding itself and Hello! had had to rely on the Russian Tea Room pictures or ones of guests arriving at the wedding, the publishers could thus be expected to arrange for greater sales than usual.

Moreover, as I have indicated, an aircraft and weekend working would have been necessary even if only the Russian Tearoom photographs had been used. Nor have I any evidence that even an aggressive paparazzo such as Mr Ramey could be sure that the elaborate security surrounding the wedding could be overridden and that photographs within the wedding would assuredly become available. These events do not, in my judgment, indicate that Hello! had commissioned the breach and intrusion which I shall come on to describe. The fact that a second freight aircraft was chartered on the Monday the 20^th November, only after the unauthorised pictures had arrived, does nothing to support a view that even before they arrived it was known that they would.

60. To the same end a comparison was made with the material relating to the McCarthy wedding. That material, not put to the Marquesa for an explanation, seems to show the Marquesa in a closer relationship with the very same paparazzi as were used in the Douglas case than her own evidence suggested. It also shows creditors’ descriptions and the debtor’s written additions on the McCarthy invoices to be in some respects like those found on one invoice in the Douglas case. But there are differences; the McCarthy invoices include daily rates payable to the photographers, a system more likely to be indicative of a true pre-commissioning of the paparazzi than is shown on the invoices as to the Douglas wedding, which have no daily rates. Indeed, so little was said in evidence about the rôle of the paparazzi or of the Marquesa in the McCarthy case that I cannot hold that in that case the paparazzi were commissioned in advance and, in turn, cannot hold that, because of the similarities in the two cases, the paparazzi were therefore also so commissioned in the Douglas case.

Arrangements for security at the Plaza Hotel

61. On the 17^th November 2000, the day before the wedding, entry cards were hand-delivered to all guests staying in New York and were sent by courier to guests out of town, to arrive on the 17^th. This late delivery was to reduce the risk of their being copied. Miss Martel Levinson had marked each card with a code that indicated to her (but only to her) the identity of the guest related to that card and with an invisible ink design on the back which only she knew. The entry cards indicated whether they were for one or two guests.
62. There was a fear that the Plaza’s fire alarm system might be tampered with (driving everyone into the street, where they then could be photographed at will) so a specialist fire firm that worked in conjunction with the New York Fire Department was brought in and a technician monitored the fire alarm system of the Hotel throughout the wedding.
63. Three private security companies were employed and there was consultation with the New York Police Department and the Fire Department. The Plaza’s own security staff had the task of ensuring that other guests staying at the hotel did not stray from the public areas of the Hotel into those reserved for the wedding. The rooms used for the wedding were regularly "swept" until an hour before the ceremony to ensure there were no hidden sound or video devices. Special arrangements were made for exclusive use of the lifts in the hotel. Guests arriving by car were required to enter a special car tent where the invisible ink on the entry card could be inspected. The car tent was secured at all access points by police. Barriers were erected so that the Press could take photographs of guests entering the hotel but could not get too near the entrance.
64. Guests had to enter the Rose Room of the hotel. There was a sign there reminding them that photography was not permitted. Entry cards were then checked against the code to ensure that appearances corresponded with the invitation. If all was well, on the entry card being handed in a gold wedding pin was given to the guests, the design of which had been commissioned by the bride and groom and had, so far as practical, been kept secret.
65. Arrangements were made so that if it was found at entry that any guest had brought a camera, it would be required to be checked-in at the cloakroom and the guest would be reminded that there was to be no photography. If the camera was discovered inside the wedding, security staff were to remove the film, develop it at the Douglases’ expense and return all photographs save for any of the wedding. A computer was on hand so that digital films could be processed so as to obliterate any shots of the wedding but not any other pictures on the film. In some 6 or 8 cases a guest or other person present, without having tried to conceal it, had been found to have a camera or video with him or her and the arrangements I have described were then implemented. In one of the cases the camera had been held quite openly by a member of the Welsh Choir which was to entertain the guests and that led to the whole Choir being "frisked". No other camera was found on them. Comprehensive arrangements were also made to ensure that the copyright in the photographs taken by the official photographers (selected and paid for by the Douglases) belonged to the bride and groom and that no unauthorised copies could be made from their films, which were taken off for processing and processed under the eyes of security staff.
66. Miss Martel Levinson gave oral evidence of how every corridor on the relevant floor in the hotel was, as she put it, "locked down"; to ensure that other hotel guests could not stray into the wedding she blocked off some 30 to 40 rooms and put security staff in for the entire weekend beginning on the Friday night, even in stairwells. It was arranged that only one bank of elevators would serve the floor in question and that was reserved for the bride and groom to move from the suite which they were occupying to the ceremony and, after it, to the reception in the ballroom immediately above. Her evidence in her cross-examination by Mr Price included:-

"… Everyone felt confident that it would be as locked down as we could and that with the presence of security people at all of these posts, it was very clear that this was a private function."

To which Mr Price replied:-

"Oh, I am sure it was."

She had been careful to look at all possible situations, she said, having had security teams and meetings looking at every possible situation and scenario. To Mr Tugendhat’s question as to whether Mr Thorpe (the one paparazzo who got in and took photographs, as I shall come on to describe) could have got in to any of the rooms where the wedding or reception was taking place without his realising that he was forbidden to be there, she replied "Absolutely not". I accept her evidence. To the extent that privacy consists of the inclusion only of the invited and the exclusion of all others, the wedding was as private as was possible consistent with its being a socially pleasant event. Equally, the arrangements made to ensure that only authorised photographs could emerge, after their approval by the bride and groom, of the ceremony and reception, were as comprehensive in design and execution as could be made in relation to such an event. The security bill alone was for $66,006.

Mr Thorpe, it transpires, was not the only person to have succeeded in making some unauthorised visual or sound recording of the events on the day but no one else’s record has led, as it would seem, to any form of publication and, perhaps for that reason, little was said about these other forms of record and I do not hold their existence to be indicative of the security arrangements not having been reasonable.

The Wedding; the evening of the 18^th November 2000

67. There are undoubtedly some events not otherwise of interest to the public that become of such interest by reason of the celebrities who attend. Minor celebrities may thus aggrandise their events by inviting major ones. When that is done an intrinsically private event might come to be regarded and be intended to be regarded as a public one. But the Douglas wedding was not such an event. The guest list, which was not publicised at the time, has been made available and there, amongst or alongside the 120 or so members of either the bride’s or groom’s family, are many names that anyone would recognise as famous or celebrated. However, it was not successfully shown to me that anyone who was not truly family or friend was invited (although, inevitably, there were some cases, where a guest and his or her partner were invited, in which only the guest could be truly described as a direct friend). In that sense the wedding was not a celebrity event and I accept Miss Zeta-Jones’ evidence that it was not intended to be one.
68. Further, the Douglases had no need to and did not themselves take any steps to stir up publicity for the event. Even without any "hype" it was going to be, as Hello! later described it, "the showbiz wedding of the year". I accept Mr Douglas’ evidence that:-

"We issued absolutely no press releases at all concerning the wedding and none of the pre-wedding press coverage was initiated by us."

69. In the Court of Appeal, Brooke L.J., after referring – page 984 c-d – to the wedding as a private occasion, later said – page 995 a-b – of the bride and groom that:-

"They did not choose to have a private wedding attended by a few members of their family and a few friends in the normal sense of the words "private wedding"."

I would be uneasy at characterising a wedding as not private simply on the basis of numbers, especially where the means of the parties were so ample that even a lavish wedding for 350-360 would not make real inroads, where the couple was popular enough to have many friends and where elaborate security arrangements were in place. But, amongst the evidence which I have had but which was not available before the Court of Appeal, is not only Miss Martel Levinson’s as to security arrangements and the guest list itself but also Mr Douglas’ which includes:-

"Out of our guest list, approximately 125 of our guests were family members. Both Catherine and I have very extensive families. My mother, for instance, has six brothers and sisters. My father has six sisters. It was therefore impossible for us to invite all the members of my family that I would have liked to have invited. If we had invited all the members of our families that we had wanted to then we would have needed a considerably larger venue or would not have been able to invite any of our friends."

It was, in my judgment, a private wedding.

70. The wedding, a "black tie" event, began on the 18^th at around 7.30-8.0 p.m. New York time. It was a great success. It went off, as it seemed, without a hitch. The cake was cut at about midnight and the reception ran on until 5.0 or 6.0 a.m. in the morning of Sunday the 19^th. Miss Zeta-Jones’ evidence is that:-

"It was exactly the wedding I wanted - a homely wedding not withstanding the fact that it was on a large scale. We had managed to have a private wedding for our family and friends without suffering the intrusion of the media into our special day. We spent the first day of our "honeymoon" reminiscing about what a wonderful time we and our guests had had."

There had been speeches, entertainers, music and dancing. The bride, as one might expect, danced with the groom. Mr Douglas’ evidence is that:-

"The wedding was a great success. I believe that all of our guests had a wonderful time and the atmosphere was tremendously warm and family-oriented. We could not have asked for a more wonderful wedding. "

A paparazzo got in

71. Although this was not known at the time, a paparazzo photographer, Rupert Thorpe, had infiltrated the wedding and, without anyone’s consent or knowledge, had surreptitiously taken photographs that included the bride, the groom, the wedding dress and the cake. Whilst, as will appear, it soon became apparent that unauthorised pictures had been taken, Thorpe’s identity was not discovered until shortly before trial. When all the authorised pictures were duly examined, a man standing in a dinner jacket was seen in one photograph holding a small camera cupped in his hands, below waist level. The camera is tilted, presumably in the hope (as no viewfinder could be used) that it was pointed in the intended direction. The photograph of him does not reliably show whether or not he was wearing one of the small identifying gold pins, if only because the photographs of guests who would undoubtedly have had pins do not invariably show that the pin has caught the light and so had shown up on the photographs. The man in the photograph was later identified as Rupert Thorpe, who is normally based in California. Later still enquiries have suggested that he attended with his then fiancée, Michelle Day, and that both had stayed at the Plaza. How he got into the wedding has not been established. As I shall show, he seems to have been working in some loose association with Phil Ramey and others but whether some others tried to get in but failed or got in but failed to be able to take any photographs is unknown. The trial has proceeded on the tacit assumption that Mr Thorpe was the only paparazzo intruder and that the unauthorised photographs were taken by him.

The unauthorised photographs are purchased

72. At about 11.0 p.m., London time, on the 18th November photographs connected with the Douglas wedding began to arrive by ISDN Line from the USA to Sue Neal in London. Some were from agencies but, later, some were from paparazzi including Frank Griffin, who had received them in Los Angeles in digital form from New York. Sue Neal called them up on her screen in London and then forwarded them by ISDN Line to Mr Luke in Madrid for him to show them to Senor Sanchez Junco. Mr Luke had spoken to Mr Ramey to be sure the latter had the appropriate address for Hello! so that he would be able to send the photographs in electronic form. Some of these photographs were presumably of guests arriving outside the wedding, as to which no complaint is made, but these first photographs to arrive could not yet have included the cutting of the cake at midnight New York time.
73. At some stage photographs on the inside of the wedding, so to speak, of the bride walking down the aisle to the ceremony and then at the reception must have begun to come through. Sue Neal called them up on her screen in London and Mr Luke printed them out in Spain to show them to Senor Sanchez Junco. Mr Ramey telephoned Sue Neal to ask whether she had received the photographs. Running into the early hours of Sunday the 19^th she had as many as some 10 to 15 telephone calls. At some point, I assume when as many of the "inside" photographs had been passed to Madrid as there were likely to be, the telephone calls turned to how much would be paid for them. Mr Ramey in California was on one line to Sue Neal in London; she was at the same time on another telephone to Mr Luke on his mobile in Madrid and, standing alongside Mr Luke, only a couple of feet or so away, was Senor Sanchez Junco, who could speak and understand little English. Ramey spoke to Neal, Neal spoke to Luke, Luke translated into Spanish for Sanchez Junco. The process was then reversed.
74. Ramey began by demanding £200,000 but after a number of calls Senor Sanchez Junco, by the means I have described, agreed to pay Ramey £125,000, the Dollar equivalent of which was then $188,000. By now it was well into Sunday the 19^th. Sue Neal had been able to hear Luke speaking to Sanchez Junco and he speaking to Luke. In the last of the calls Ramey asked Sue Neal to confirm the fee in writing, which she did by fax to Ramey Photograph Agency from "Sue Neal – Picture Editor" on Hello! writing paper. Her fax records agreement at £125,000 for exclusive rights "to the above pictures" (not otherwise identified) "For Hello! UK, Hola Spain and Oh La France; it is agreed that you will invoice in US Dollars for US $188,000". Sue Neal signed the fax. She expected to receive an invoice for $188,000, an expectation which confirms that the invoice was to be directed to Hello! and that Hello! and not the Marquesa was the purchaser.
75. There is no suggestion in the evidence that the Marquesa knew of, took any part in or even had her name mentioned in these dealings with Ramey, nor could anyone party to the dealings have thought that she was any part of them. She was asleep in Sotogrande.
76. The photographs received, of the order of some fifteen in all, included the 6 whose publication is complained of. The composition is generally poor and two are well out of focus. None shows any awareness on the part of the subject that a photograph was being taken and it can be assumed none used flash. The photograph of the bride going down the aisle towards the wedding ceremony on the arm of her father cuts off all of him but his arm. Two show the bride eating, one of which has the groom holding a fork down into her mouth. In one she playfully holds up a cake knife at her husband. In one taken from a very low level she dances, but not with the groom. Another, hopelessly out of focus, shows the bride and groom kissing. The bride’s dress is shown to a greater or lesser extent in all six and parts of the very elaborate wedding cake are visible in three. In one the foreground seems to consist of the arm of, and lighting held by, an authorised photographer.
77. Having received the photographs Senor Sanchez Junco set about arranging a layout, his usual task. The ISDN Line at Hello!’s office in Madrid had been installed prior to 1998. In Madrid some thin lines appearing on the unauthorised photographs as they had arrived were processed out by the printers, using a computer program. The photographs had been sent to the printers in Spain from Hello!’s Madrid office in electronic form. Senor Sanchez Junco telephoned the Marquesa at about 4.0 a.m. Spanish time on the Sunday morning to tell her that he had got some wedding pictures after all. He was very pleased. He mentioned that Mr Ramey had taken them. She had incurred telephone call charges in connection with her earlier unsuccessful efforts on Hello!’s behalf and she took the opportunity to raise with him whether she could raise an invoice for them. He said she could.
78. Senor Sanchez Junco completed the layout; the front cover was changed to include an amalgam of one of the unauthorised pictures and an insert of a Russian Tea Room picture; parts of an earlier layout were discarded and the revised format was sent to the printers some time on Sunday morning.
79. As he set about arranging the unauthorised photographs into a lay-out for an issue of Hello!, Senor Sanchez Junco well knew that OK! had obtained an exclusive contract for coverage of the Douglas wedding. He knew of Ramey’s reputation and the kind of work that Ramey handled and the intrusive systems which paparazzi such as Ramey employed. It was a kind of journalism he and Hello! did not like, he said, and usually tried to avoid. At least a part of the reasons for Senor Sanchez Junco’s insistence that Ramey should not be commissioned in advance, was in my judgment, that he, as a cautious man, was uncomfortable in being seen, as a commission would involve, to be procuring the sort of unpredictable and possibly unlawful activity that a paparazzo of Ramey’s reputation might get up to. Whilst he would not have known of the specific language used, Sr Sanchez Junco knew that a feature of OK!’s "exclusive" would have been that security arrangements were required by contract so far as was reasonable to ensure that only those invited or duly employed would be present at the wedding and that no photographs were to be taken other than the authorised ones. For example, Hello!’s own pleaded exclusive contract for coverage of the wedding of Gloria Hunniford required reasonable security to be enforced. Such arrangements had to be contemplated by those in the trade as an inevitable concomitant of an "exclusive", certainly where as much as £1m was at stake.
80. It was obvious to him that the photographs were unauthorised. He said in cross-examination that he had no doubt but that the person who did the photographs was trying to hide himself. He was then asked:-

"Mr Tugendhat: Did you ask Mr Ramey any questions about how the photographs were taken?Witness: No.Mr Tugendhat: Is that because you did not care whether they were taken legally or illegally?

Witness: No, it was because I didn’t want any information . I didn’t want to know anything about it. I wasn’t curious about it. I didn’t want to know."

Similarly, to Mr Luke, co-ordinating Editor in Madrid, it was a matter of indifference how the photographs had been obtained.

Senor Sanchez Junco knew from his contacts with Mr Burry that the Douglases had been insisting on control over what photographs would be released and his own proposals to Mr Burry of May 2000 had accordingly offered the Douglases full picture approval rights.

81. In my judgment Senor Sanchez Junco knew and ought to have known, as he selected the unauthorised photographs for publication, that what he was doing would or might significantly diminish the benefits which OK! would otherwise derive from its exclusive contract with the Douglases, that it would deny the Douglases the picture approval which he knew they wanted and which he would have expected them to have procured in their contract with OK! and that the taking of the unauthorised photographs, which he had been careful not to commission, would have involved at least a trespass or some deceit or misrepresentation on the photographer’s part in order for the photographer to overcome the security arrangements which, in outline, he knew or must be taken to have known to have been in place at a wedding which he had no reason to think was other than private. It was obvious, agreed Sue Neal, Hello!’s Picture Editor at the time, that the photographs had been taken by someone "who had no business to be there." Mrs Cartwright’s evidence was that they had to have been taken surreptitiously.

The Claimants learn of the unauthorised phtotographs

82. At some time on Monday morning (London time), 20^th November, OK!’s editor, Mr Martin Townsend, and picture editor, Mr Paul Anderson, learned, in London, that unauthorised photographs of the wedding were on the market. Nine low resolution photographs, understood at that time to have been taken by Mr Ramey, were faxed to OK! by an agency in Holland. Mr Anderson telephoned Mr Ramey who called back in the afternoon. Mr Ramey said that he was merely Eduardo Sanchez’s agent for selling the photographs in the United States. Mr Anderson had been told to buy the photographs if he could so as to take them off the market. Later still – evening, London time – Mr Ramey telephoned Mr Anderson to say that he was withdrawing the photographs from all the United States magazines to which he had distributed them. He said it was not worth his sticking his neck out for Eduardo Sanchez. Mr Anderson was left with a clear impression that Senor Sanchez Junco owned the unauthorised pictures taken inside the Douglas wedding. Mr Townsend telephoned Mr Allen Burry to tell him all this, only to find that he was with Michael Douglas and Catherine Zeta-Jones and all four then had a conversation on a speaker telephone. Michael Douglas and Catherine Zeta-Jones were, said Mr Townsend, devastated by the news. Miss Zeta-Jones uses the same word; she says:-

"It was an appalling and very upsetting shock to discover that our wedding had been invaded in that way. Our peace and happiness evaporated. I felt violated and that something precious had been stolen from me. Our distress and anger at what Hello! did to us continues to this day."

83. Mr Douglas says:-

"We were devastated and shocked by the news. We felt as if our home had been ransacked and everything taken out of it and spread in the street. It was a truly gut-wrenching and very disturbing experience which left both of us deeply upset."

84. It is easy to regard such language as exaggerated but it has to be remembered that the Douglases were speaking of a time when their joy at how successful their wedding plans had proved to be was at its height. They crashed down from a relatively euphoric height. Mr Price cross-examined Mr Douglas to the effect that, in comparison with, say, the loss of a limb, their distress was minor and Mr Douglas accepted, against such a comparison, that that was so but he also said:-

"When we spent as much time as we had preparing this wedding, and making all the efforts that we had, one of which was deciding between the two publications that are here today, and when that wedding turned out as wonderful as we ever could have anticipated, it was a magical, magical night, and it was great, so when you go from that euphoric high of having such a special, special event turn out as well as it did for all of our family and friends, and then to find that somehow somebody, either one of the members of our wedding party or, as it turned out, a spy, a paparazzi person snuck into to take pictures which were going to be released, we thought it was one of the most vindictive and mean-spirited acts we could have imagined and were deeply deeply offended. Again I think it has to do with the diametrics of coming so soon after our wedding."

I have no doubt but that Mr Douglas and Miss Zeta-Jones both suffered real distress, though it is no present task of mine to attempt to put some compensatory cash value upon it. An aspect of their distress, which led Miss Zeta-Jones to tears, was their wondering, if it was a guest, which of their guests it was that had betrayed them.

85. On the same day, the 20^th November, the Marquesa’s assistant at the Marquesa’s request sent an invoice to Hello! in London for £1,000 plus VAT described as "invoice for telephone expenses for arranging photographs of Douglas/Zeta-Jones wedding". This was the claim which the Marquesa had cleared with Senor Sanchez Junco in their 4 a.m. telephone call. At that stage, before any problems had arisen, the Marquesa was only too happy to enlarge her rôle in the apparently successful use of paparazzi which she had suggested back in August but it is not possible to infer from this invoice, modest in amount relative to the Marquesa’s usual operations, that she had played any greater rôle so far than as already described. It is, though, possible that the invoice, addressed to Mrs Doughty, did later conduce to acceptance in London that the unauthorised photographs (and, perhaps, the accompanying text) represented a Marquesa feature, perhaps with the main invoices being intended to follow this opening one.
86. The printing of the centre section of Hello!’s Issue 639, now featuring the unauthorised photographs, as did the cover, was completed and the magazines, in greater numbers than usual to cope with the expected unusually heavy demand, were bundled, loaded into the specially chartered aircraft and flown on Monday the 20^th to England for distribution in the usual way on the Tuesday and the Wednesday.
87. Until the news arrived of Hello!’s acquisition of unauthorised pictures OK! had planned not to put wedding pictures in Issue 241, due to go on general sale on Friday the 24^th November, but to spread Douglas wedding items over to later issues, number 242 for publication on the 30^th November (London) and 1^st December (the rest of the United Kingdom) and number 243 a week later. Now, simultaneously, two decisions were made; one was to bring forward some wedding coverage into Issue 241. That meant that the Douglases would have to select which photographs they approved for publication very quickly.
88. The Douglases set about that task. It had been thought that it would be a leisurely unhurried and pleasant process; now it had to take place in priority to everything else and in some haste. They spent hours and hours sitting on the floor going through photographs in a mad rush, said Miss Zeta-Jones. Eventually the agreed photographs were taken by Mr Burry to London. Expenses were incurred by reason of the need for expedition, expenses that would not have been incurred otherwise.

An injunction is granted; 20^th November 2000

89. The other decision was to move the Court in England for an injunction. On the evening of Monday the 20^th November Mr Justice Buckley, the Queen’s Bench Duty Judge, was moved ex parte and (despite attempts to tell Hello!) without notice, by telephone. At that stage there were already all three claimants but only Hello! Ltd was a defendant. The relief sought was an injunction to restrain publication by Hello! of any photographs of the wedding and reception. Buckley J. granted relief over the following day with a view to there then being an inter partes hearing on short notice on the 21^st November.

20^th-21^st November 2000

90. It was about midnight on the night of the 20^th-21^st November that Mrs Cartwright, Hello!’s Publishing Director in London, learned of the injunction. She rang Mrs Doughty, Administration and Financial Controller of Hello! in London, to get the number of Mr Christopher Hutchings, solicitor, of Charles Russell, and then told him what she knew. She speaks Spanish and hence was able to speak to Senor Sanchez Junco after getting his number from Javier Riera. It was agreed that an attempt should be made to get the injunction lifted. The following day, Tuesday the 21^st November, she made a written note which read:-

"I rang our owner, Eduardo Sanchez in Spain and alerted him to what had happened. He told me we had bought 10 or 11 photos of ceremony and reception through normal channels in which the Press work, and photographer who took them did not wish his name revealed. Hola SA who bought the pix, bought them for three countries, UK, Spain and France. It is our understanding that they will be sold throughout the world ….. I rang Phil Ramey in LA. Sue Neal involved. Ramey very cagey, said dealt with Marquesa. Did not want to be involved."

91. Although the note speaks of acquisition of the photos "through normal channels in which the Press work" and although Senor Sanchez Junco may at first have used some such expression, the note only makes sense if he had gone on to mention Mr Ramey by name and to ask her to phone Mr Ramey as otherwise Mrs Cartwright would have had no reason to telephone him, as she did. Indeed, in her oral evidence Mrs Cartwright said that Senor Sanchez Junco had told her to ring Ramey "as the supplier of the pictures" as opposed to his being the photographer. When she spoke to Ramey he was guarded; he did not know Mrs Cartwright and wanted to be sure to whom he was speaking. He suggested that Sue Neal, whom he well knew, should identify Mrs Cartwright to him. Sue Neal was awakened in the middle of the night. A three-way telephone conference call ensued during which Sue Neal could hear what was being said and in which she first identified Mrs Cartwright to Mr Ramey. Mrs Cartwright’s evidence was that Ramey said "I dealt with the Marquesa", as her note recorded. Quite why Ramey was to be telephoned and what he was to be told is unclear. Miss Neal, who heard the conversation, was able to give no reason why Ramey, who was agitated, should have been phoned. She did not think there had been any speaking about the Marquesa during the conversation. However, in her supplementary evidence in chief Mrs Cartwright said that Ramey had said "I dealt with the Marquesa" and, continuing the quotation from her evidence, she went on to say:-

"And I just assumed, which if one had been in the company for some time, was a very reasonable assumption, that it was a Marquesa feature, which she had done the fixing."

It is possible that Sue Neal was not on the line or within earshot for the whole of the conversation and may have been drowsy as she was broken from her sleep. I accept Mrs Cartwright’s evidence that Ramey had said that he had dealt with the Marquesa. I accept also that she "just assumed" that the Douglas wedding photographs amounted to "a Marquesa feature".

92. By that time it would already have become apparent that it might not be inconvenient to put some distance between Hello! and Ramey, who was himself exhibiting signs that some distance between himself and the photographs would not be unwelcome. If Mrs Cartwright had thought about what "a Marquesa feature" usually consisted of and if she had raised direct questions with either Senor Sanchez Junco, Mr Ramey or the Marquesa she would soon have had to accept that the wedding had not been "a Marquesa feature". However, Ramey’s description that he had dealt with the Marquesa gave her a peg just sufficient to support the assumption she then made and upon which she thereafter acted.
93. On Tuesday the 21^st November Mr Tugendhat and Mr Sherborne (as they had on the 20^th November) represented the Claimants as they sought an extension of the injunction from Hunt J.. The single defendant was represented by Mr Silverleaf Q.C. and Mr Fernando. Hunt J., after a short hearing, extended the injunction over trial or earlier further order.
94. Hello! immediately appealed and the hearing of the appeal began on the afternoon of the 21^st November before Ward and Walker L.J.J.. Mr Silverleaf and Mr Fernando again represented the (then) sole defendant, Hello! Ltd... At the close of argument the Court indicated that its members could not agree and arrangements were made for a hearing before a three man Court the very next day, Wednesday the 22^nd November.
95. Hello!, having learned of the injunction of the 20^th November, took immediate and largely successful steps to ensure that the injunction was not breached. Only a relatively few copies – some 15,750 out of a total print run of 755,900 – were put on sale. How many were sold to members of the public is not known. The rest were embargoed to await the outcome of the litigation.

The 3-man Court of Appeal; Mrs Cartwright’s 2^nd Witness Statement

96. Mr Silverleaf had been unable to represent the defendant at the hearing on 22^nd November and its representation was by Mr Henry Carr Q.C. and Mr Fernando. On the Hello! side evidence was collected for the appeal hearing. That included a draft second witness statement of Mrs Cartwright. After dealing with evidence as to attempts by OK! earlier to spoil Hello!’s "exclusives" (a subject referred to during the trial as for tit-for-tat evidence) Mrs Cartwright continued, in the unsigned draft faxed to the claimants’ Solicitors at 13.57 on 22^nd November during the short adjournment on the first day of the three-man appeal hearing as follows:-

"10. On a separate matter it has been alleged that Hello! knew well in advance that the pictures complained of would be available for publication in the issue of the magazine subject to this injunction. In fact they were offered on the open market around the world on Sunday the 19^th November and that is when Hello! purchased them and we were able to fit them in the magazine which was by then substantially ready.

11. Hello! had no previous knowledge whatsoever that these pictures were going to be taken or offered. I believe that the facts stated in this witness statement are true."

97. A signed but undated version of this witness statement exists, still containing the paragraphs 10 and 11, but the last page of it, which bears Mrs Cartwright’s signature, says nothing save that she believed the facts in the statement to be true. Mrs Cartwright was unable to shed any light on how, in the circumstances I next describe, the page had come to be signed.
98. An unsigned version of that witness statement containing those paragraphs 10 and 11 was handed in to the three-man Court of Appeal. When that version of her draft second witness statement had been put to Mrs Cartwright for her signature she says that she had indicated that she could not sign as it was not true. Whilst it was literally true that it was not known in advance that the very pictures complained of would become available and that those particular pictures ("these pictures") would be taken or offered, Mrs Cartwright had rightly felt that to assert the truth of paragraphs 10 and 11 would mislead. Accordingly the draft was at her request, she said, amended to take out the paragraphs 10 and 11 to which she felt unable to subscribe. She signed but did not date the last page of a version from which the offending paragraphs had been omitted. Unfortunately, as I have mentioned, that did not stop a signed version still containing paragraphs 10 and 11 from being used in Court. Paragraphs 10 and 11 were later referred to in the judgments of the Court of Appeal, which had plainly relied on them.
99. The Hello! Defendants waived privilege in connection with the preparation and service of Mrs Cartwright’s second witness statement but despite that and despite intense study by Mr Tugendhat of word-processing and associated costing records and the availability of Mrs Cartwright and Mr Hutchings to give oral evidence, it was, through no fault of the claimants, never established in the evidence who had framed the words that became the paragraphs 10 and 11 of that unsigned second witness statement which I have cited above, Nor, apart from a somewhat desperate plea that all that been done at speed, was it ever explained how it came about that the incorrect version, including paragraphs 10 and 11, had come to be handed to the Court of Appeal rather than the corrected and signed version.
100. A particular difficulty in the way of the credibility of Mrs Cartwright’s evidence (that she was not willing to sign the misleading version) is that no version of the corrected version exists which has, as its last page, only a statement as to truth. On the face of things her signature to a sheet merely having a statement of truth on it could therefore only be an acceptance of the misleading version. Unfortunately, though, the collection of evidence was not being carefully or properly handled and it is at least possible that Mrs Cartwright was asked to sign a backsheet whilst understanding that it would come to be affixed to the corrected front sheets and was then asked to sign afresh once it was found that the corrected version had more than a statement of truth on its last page.
101. It is, of course, possible to devise a scenario in which Mrs Cartwright paradoxically affected a strict regard for the truth in order to mask that she had lied, by creating the corrected version of her second witness statement to explain away the presentation to the Court of the uncorrected version. That, though, seems to me to be improbable. Anyone devious enough to do that would surely have ensured that the corrected version was edited so as to have had a last sheet that had nothing but a statement of truth on it and the plan would have depended on the Claimants not promptly spotting that there were two different versions despite their being sent both. Further, as to Mrs Cartwright’s state of mind at the time, I have had no evidence that paragraphs 10 or 11 were read aloud to the Court of Appeal either at all or in Mrs Cartwright’s hearing or that she had reason during the hearing to know that it was not the corrected version which was in the Court’s hands.
102. Whatever else the incident shows it shows that whoever was given the task of collecting the views of the witness was content to assume what Mrs Cartwright would say rather than first questioning her to find out to what she could subscribe.
103. Mr Hutchings, speaking of the fact that the Court of Appeal had had before them a version of her evidence which included paragraphs Mrs Cartwright would not have wished to have laid before them, said:-

"It certainly was very regrettable. I believe it was a terrible clerical error, but I think that obviously the first version should have been torn up, and it did not happen. There were obviously various versions floating around."

He described it as "very much an administrative blunder rather than anything else". On balance I accept that that was the case. Mr Hutchings, although the solicitor having the conduct of the case on behalf of the Hello! defendants, escapes direct personal blame as he was in court whilst the impugned document was being prepared but, whilst I accept, having heard and seen Mrs Cartwright giving her evidence, that there was, lying behind the production of the document, no intent to mislead the Court, the unfortunate incident reflects poorly on the broad class of Hello! Defendants and their advisers without my being able to pin blame more particularly within that broad class.

104. Nor, despite it being quite visible in the three judgments of the Court of Appeal that reliance had been put on the misleading paragraphs 10 and 11 and despite that the judgments were then read, no doubt with some care, by and on behalf of the Hello! Defendants, was it ever volunteered by them that something had gone wrong and that it might, at lowest, be prudent so to inform the claimants or the Court.
105. As to that, I would exculpate the lay individuals such as Mrs Cartwright and Mrs Doughty, who might well have not focused sufficiently on the mistake in evidence and, even if they had, might not have realised that, procedurally, the matter could be corrected. In particular Mrs Cartwright has grounds on which she is to be exonerated as there is evidence both from her and from Mr Hutchings that she raised the question with Mr Hutchings in the New Year. As to others, it was urged upon me that by the time the Hello! Defendants had put in their defence (paragraph 30) in May 2001, it was made plain by then that some degree of prior knowledge on the part of the Hello! Defendants had existed and that thereby the defence had undone whatever misrepresentation the witness statement had caused. That, though, fails to explain the inactivity on the issue on the Hello! Defendants’ part between the giving of the judgment in the Court of Appeal in late December 2000 and the service of the defence in May 2001. The whole incident was lamentable, as also is the fact that, despite privilege having been waived, material questions remain incapable of answer.

The Marquesa is asked to help; 23^rd November 2000

106. Also on the 22^nd November 2000 Senor Sanchez Junco telephoned the Marquesa. He told her there was a problem with the magazine. He said something about an injunction. He told her he wanted her to help him but did not say how. She said:-

"Well, you know, if I can help, I will be of help, and he answered: "Well thank you very much. I will not forget this one."."

I accept that things were left generally in that way; I do not hold that Senor Sanchez Junco indicated that a letter would be required of her or that she would be asked to compromise herself or lie. She held strong views, especially on the subject of how beneficial would be the tit-for-tat evidence which she would be able to give to assist in Hello!’s case for the lifting of the injunction. Nor was she averse to ingratiating herself with Senor Sanchez Junco as Hello!’s editor-in-chief, with whom her relations had been erratic and were not then as good as they had earlier been.

107. In his oral evidence Senor Sanchez Junco at first said that he could not remember asking the Marquesa for help; then he turned to avoiding a direct answer by questioning in what way she could in any event have helped him. Finally he became firmly of the view that he had not asked her to help him. I prefer the Marquesa’s evidence which, from her witness statement on, was constant on the point. "I will help you in any way that you need" said the Marquesa to Senor Sanchez Junco and she added "You can count on me always".
108. On the same day Mr Hutchings telephoned the Marquesa. He explained to her that he was asking for a statement from her which might help clarify what had taken place. He explained that he understood that she had arranged and purchased the Douglas wedding feature. That is a view which was consistent with the loose assumption of the wedding having been "a Marquesa feature" which Mrs Cartwright had made and which it is likely Mr Hutchings formed after speaking either to Mrs Cartwright or to Mrs Doughty, who was of the same view. Mr Hutchings said to the Marquesa that if it was case that she had arranged and purchased the feature it would be helpful to have this explained in a letter. His eleventh witness statement, not made until the 20^th February 2003, continues:-

"The Marquesa confirmed that this was correct and agreed to provide a letter to this effect. Had she said anything at all to cause me to question my understanding or raised any concerns whatsoever, I most certainly would have discussed these with her, until I was satisfied as to the actual position."

109. He was not cross-examined on that lately-given evidence.
110. Because that important evidence arrived so late it was never put to the Marquesa that she had confirmed to Mr Hutchings that she had arranged and purchased the feature but, given the lack of challenge to his evidence on the point, I accept that she did confirm as Mr Hutchings indicates. It was not asked of the Marquesa, either, again because of the lateness of the evidence that Mr Hutchings gave, whether she realised that his request was, unknown to Mr Hutchings and unmentioned by him, the first step in a working-through of her indication to Senor Sanchez Junco that she would give to him such help as she could. However, given her later behaviour, it is hard to see how her failure to deny that she had arranged and purchased the feature can otherwise be explained. Mr Hutchings was, innocently on his part, asking her to provide a letter which she would have known would be untrue. Consistently with her willingness to help, she would have not protested to him that she was being required to lie. She would not, I expect, have felt safe indicating to a solicitor that he was procuring false evidence.
111. The Marquesa then tried to telephone Senor Riera, Managing Director of Hola SA, with whom her relations were poor. Not getting through to him, she sent an e-mail. She described herself, in relation to the Douglas wedding, as "the one person who has been involved in the matter from the beginning". In the sense that she had long before tried to gain an "exclusive" for Hello! and, after Senor Sanchez Junco’s intervention and upon that failing, had spoken to Senor Sanchez Junco about paparazzi, that description was true but it ignored the absence of any real active role of hers since August 2000 or thereabouts and that it was Senor Sanchez Junco who had bought the pictures on the 19^th November. Her e-mail both criticised the past handling by Hello! of the Douglas wedding opportunity and suggested that she had a rôle to play for the future. She did not mention that Senor Sanchez Junco had asked for her help.
112. Senor Riera did not telephone the Marquesa but his secretary, Senora Elisa, began frequently to telephone the Marquesa or the latter’s assistant, Miss Mildh, indicating what it was that was required from the Marquesa. The Marquesa’s understanding of that and Miss Mildh’s led to Miss Mildh typing out a letter which was never sent but which read:-

"I confirm that this company [Marquesa’s Production Limited] was offered the photographs relating to the wedding of Michael Douglas and Catherine Zeta-Jones. This company accepted the offer and payment was made accordingly for such photographs."

Miss Mildh was an impressive and intelligent witness and I do not doubt but that that draft letter was an accurate reflection of what Madrid, by way of Senora Elisa, had been indicating it required, namely a letter shewing that the Marquesa’s company had bought and paid for the unauthorised photographs, a complete fiction. Miss Mildh knew that the function of the letter that was being requested was to help in a lifting of the injunction. As she knew that I do not doubt that the Marquesa knew that too.

113. The Marquesa felt she was in a difficult position. Miss Mildh’s witness statement said:-

"I remember a great deal of telephone traffic that day, back and forth. The Marquesa felt very strongly she could not decline to "help" Senor Sanchez Junco in this way if she wished to retain his good opinion of her and, more importantly, her job! I felt she was being unfairly pressurised. She was very upset."

The Marquesa, hoping that the position might resolve itself without her finally being obliged to lie, left her office early on the 22^nd November, despite what were, said Miss Mildh, "frantic phone calls" from Madrid.

The Marquesa’s letter

114. In the meantime, in London, Mr Hutchings discussed with Hello!’s Counsel, Mr Carr and Mr Fernando, as to what, in the light of the confirmation which the Marquesa had given to Mr Hutchings, a letter from the Marquesa should state. At one point it had seemed that Mr Fernando had been thought to have proposed a form of words but it was not written down on paper and quite how the form was finally arrived at was never resolved in the formal evidence. Leaving aside how the words came to be composed (another subject on which privilege was waived), Mr Hutchings then spoke to Mrs Cartwright, who put the words by telephone to Senor Riera with the intent that he should then write to the Marquesa. Why it was Senor Riera who was selected to play this part and who made the selection of him for the task has not been satisfactorily explained. The Marquesa could have been approached directly or by way of Senor Sanchez Junco. Instead the Managing Director, with whom her relations were poor, was invited to contact her. There is a very real suspicion that he was used as he, above others, represented in person the ability of Hello! to deny the Marquesa any work for the group in the future. He could not be charmed by her; unless he chose, he could not be contacted by telephone except by way of his secretary and the Marquesa could not negotiate with him or protest to him. He was the embodiment of the pressure that was put upon her.
115. The form of words proposed by London was then sent by Senor Riera to the Marquesa. The suggested form of words was in English, the rest in Spanish; putting the whole in English it read as follows:-

"We need to receive by tomorrow at [10] a.m. at our Barrister’s Mr. Giles Fernando fax number 0207 742 4282, a document signed by you in a headed paper with the name of your company with the following text:-

I confirm that my company sold exclusive UK rights in the photographs of the wedding of Michael Douglas and Catherine Zeta-Jones to Hola SA for use in Hello! magazine. The agreement was concluded on the telephone between me and Eduardo Sanchez, the proprietor of Hola SA, on Sunday November the 19^th."

The letter was signed by Senor Riera. The letter went by fax late on the evening of the 22^nd November. The reference to 11 a.m. was to ensure her letter could be produced at the hearing before the Court of Appeal.

116. On the next day, 23^rd November, the second day of the hearing before the three-man Court of Appeal in London, the Marquesa saw for the first time the fax from Senor Riera. By the time Miss Mildh arrived late at her office she said:-

"I found the Marquesa in high dudgeon as she had earlier found in her office a fax from Madrid, containing the exact proposed wording of this sought-after document. Furthermore, she told me that she had already received several semi-hysterical phone calls from Madrid, demanding that the document be written and faxed to the High Court before 10 a.m.. The Marquesa had by now resolved to sign this document."