I read a great thought piece about why the Prince Harry v News Group settled at such a late stage and it got me thinking about the role forensics has to play.

For those blissfully unaware of the traumas of litigation, there are many reasons why a case may never see the inside of a court room. The article makes mention of some of them and I’ve pulled them out here to provide a quick summary.

1. The cost of litigation

Litigation can be eye-wateringly expensive. I know. Some of my current cases involve David v Goliath battles where the David scrabbles to fund the necessary costs of court filing costs, solicitors, ATE, counsel, and (dare I say it) the forensic accounting fees! But, was the potential cost of court the reason Prince Harry settled? Possibly not. I know him vicariously. He is a principled man (pun not intended). And principles can often override financial reason.

The article highlights the apology from News Group, with markedly different content that the tripe offered in the Hugh Grant settlement, it suggests News Group gave in.

The article also highlights an arguable case for limitation of bringing the claim. A far cry from any moral high ground, but it could have sewn the seed of doubt of a court victory, so was it the risk?

2. The two types of risk

There are two obvious offshoots from risk:

(i) the risk of losing in the public eye and

(ii) the risk of suffering the cost implications of losing in court.

Forensic accountants are involved at varying stages of litigation and often not at all, but where we can be instrumental is in the quantum of the dispute: what are the losses, what are the damages, what does the but for scenario look like? I’m of the opinion; these numbers should feed into the part 36 offer. For those uninitiated, this is the amount offered to settle and it sets a bar. The same is true if you swap the parties around, but as an example: If an offer made by the Defendant is rejected by the Claimant and the court decide an amount less than the offer is due to the Claimant (i.e. the Claimant would have achieved a better financial outcome by accepting the offer than going to court), then the Claimant becomes liable for the aforementioned eye-watering costs.

But, returning to Prince Harry v News Group (and I lean on the legal guidance from the article here), the case ended with a Tomlin Order and this is (apparently) not the means by which a case would ordinarily conclude if settled by acceptance of a Part 36 offer. Furthermore, the timing of the settlement by Prince Harry doesn’t make a huge amount of sense. The claimant presents their version of events first, and in doing so all the documents they are relying on become publicly accessible. News Group arguably stood the most to lose in this scenario. I am yet to find someone who sympathises with them, but it’s one thing thinking someone is crooked and another knowing they are. Which brings me to public opinion:

3. The court of public opinion

In my opinion, I think this is why the matter settled. Oddly, in a world where truth is hard to identify in the media anymore, News Group seem to have decided that there would be no recovery from the death knell of public opinion, and so to avoid there being no doubt of their crooked behaviour, they accepted liability, thus keeping the evidence out of court and out of the public eye.

It’s been fascinating to watch, and I look forward to a number of cases I have in court this year. One to watch out for: Super Fast Trading Ltd v The Governor and Company of the Bank of Ireland is one that I think echoes some of the above.

For more detailed and nuanced commentary, I recommend David Green’s article in Prospect Magazine, ‘How Harry and Watson forced News Group Newspapers to admit wrongdoing‘.

This article was written by Nicholas Parton, Partner and Head of the Forensic Accounting division at Opus.