Sir Philip Green backs down: the inside story of the court case that never was

By that stage Sir Philip and his company Arcadia – owner of Topshop, Dorothy Perkins, Miss Selfridge and Burton – had racked up millions of pounds in legal costs, including “nearly half a million pounds” on witness statements – including, it might be presumed, Sir Philip’s – which have never been seen.

“It looks as though for some time their tactics have been to keep Sir Philip out of the witness box and to prevent him being cross examined,” Desmond Browne QC, The Telegraph’s barrister, told the High Court last Tuesday.

Today the injunction was formally lifted by Mr Justice Warby and the billionaire was ordered to pay the bulk of The Telegraph’s costs as well as his own.

The Telegraph’s investigation into Sir Philip had begun a year ago when a journalist received a tip-off from a source inside Arcadia who claimed that the tycoon presided over a culture in which he could bully, intimidate and harass employees.

Further investigations suggested that Sir Philip had been paying significant sums of money to employees to gag them from speaking about allegations that included sexual harassment and that he had used racist language.

The Telegraph believed that the claims were in the public interest and needed investigating. Journalists began speaking to former employees and associates of Sir Philip.

Very quickly, a pattern of alleged abusive behaviour emerged.

Sources who had known the businessman for 10 or 20 years recalled being bullied, threatened and intimidated. By the late spring of 2018, Sir Philip had got wind of The Telegraph’s inquiries.

His public relations adviser intervened, demanding that reporters put the allegations directly to Sir Philip. Legal letters, the first of many, followed demanding the newspaper halt its investigation. Sir Philip telephoned editors and executives directly warning them to desist.

By the summer, The Telegraph’s investigation had progressed to the point where it was ready to put the allegations to Sir Philip.

That phone call at 5pm on July 16 would trigger the legal battle. The short call was followed a few minutes later by a lengthy email sent to Sir Philip and his company Arcadia detailing the allegations against him in writing and seeking his response.

The emailed letter – known in court as the “Foggo email” after Daniel Foggo, the journalist working for The Telegraph who sent it – contained various claims including the allegation that Sir Philip and Arcadia had paid a female employee more than £1 million to settle a legal action she was bringing.

The woman alleged she had been touched “inappropriately” by Sir Philip but by settling the dispute out of court, she had agreed to a non-disclosure agreement (NDA) that prevented her discussing not only the terms of the settlement but the grievance itself.

The letter also detailed the case of a senior black employee who had received a pay-off, worth close to a million, after bringing a claim for alleged racial discrimination. The Telegraph’s pre-publication letter – standard practice in journalism – outlined the claim that at a business meeting Sir Philip had “looked around” the man’s head, pointed at his dreadlocks and exclaimed “what the f--- have you got on your head?”.

Would Sir Philip also like to comment, the letter went on, on an allegation he had called a Chinese visitor to his office “Mr Ching Chong Charlie”?

Three other former members of staff had also received significant payments in return for their silence, The Telegraph email asserted.

Over the course of the next two days Sir Philip played for time.

Seeking more information from The Telegraph and explaining it would take a little longer to answer, Sir Philip stalled. In reality he had no intention of responding to The Telegraph’s email.

Sir Philip said he would “reply properly” by the end of the week.

However, on the day before his response was expected, a legal letter was emailed to The Telegraph, explaining that lawyers working for the retail tycoon intended to injunct the newspaper to prevent it from publishing the allegations.

Behind the scenes Sir Philip had contacted Schillings, a “hardball” law firm that specialises in media law. “We help you gain control when faced by the most common threats in this fast moving, unpredictable world,” boasts the Schillings website. The law firm is fond of the injunction as a weapon in its armoury that temporarily at least prevents newspapers from publishing.

Schillings had sought them for the footballers John Terry and Ryan Giggs, the tactic backfiring in both cases.

Keith Schilling, its founding lawyer, is alleged to have once asked a then girlfriend, a journalist, to sign a confidentiality agreement on their second date. She thought it a joke.

The letter from Schillings activated a legal process, forcing a court hearing simply listed as ABC; DEF; GHI v Telegraph Media Group. ABC was in fact Arcadia Group, while DEF was Topshop/Topman, his flagship fashion chain. GHI, his identity protected for now, was Sir Philip.

On July 18, Schillings, charging Sir Philip up to £690 an hour, had filed and served notice of an application for an interim injunction.

The law moves fast. At 4pm that same day before Mr Justice Nicklin, Sir Philip’s lawyers had sought the interim injunction at a hearing. About an hour later the court had adjourned and The Telegraph had been given no choice but to agree not to publish before a full hearing could take place.

Five days later, Mr Justice Haddon-Cave presided over a one-day hearing. His judgment was devastating for Sir Philip. In a significant endorsement of freedom of the press, the judge, who has now joined the Court of Appeal, concluded it was in the public interest for the confidentiality in the alleged victims’ settlement agreements to be overridden and for the story to be published.

In a ruling, only some of which was made public on Aug 13, Mr Justice Haddon-Cave stated: “In my view publication by the defendant of the information in question is clearly capable of significantly contributing to a debate in a democratic society. Indeed, in my view, publication of the information would be in the public interest notwithstanding the confidentiality which the claimants’ assert attaches to it.”

That wasn’t the end of it. Sir Philip’s lawyers indicated they would appeal and – pending the outcome of that – The Telegraph remained prevented from going public with the allegations.

It would take more than a month for the Court of Appeal to hear the case.

Over the course of Sept 25, with the Master of the Rolls Sir Terence Etherton presiding, alongside Lord Justice Underhill and Lord Justice Henderson, lawyers for Sir Philip argued that the contractual obligations – preventing the complainants speaking out – outweighed the public interest in the allegations being published.

On Oct 23 – three months after The Telegraph had first put its allegations in writing – the three judges granted an interim injunction. Sir Philip – his identity still protected – must in all likelihood have cracked a bottle or two of champagne. Schillings had seemingly worked its magic.

The ruling was a blow to The Telegraph’s hopes of publishing but it wasn’t fatal. The judges ruled that the only way to decide the case was to kick it back to the High Court for a full trial of the facts. It would then be for a judge to listen to the evidence and decide.

Crucially it was accepted by both Schillings and The Telegraph’s legal team that the main question for the judge to decide in weighing up the public interest in breaching the NDAs was the truth or falsity of the allegations made against Sir Philip.

The Court of Appeal insisted on a “speedy trial”, which in legal terms meant January or February 2019. Sir Philip remained protected.

The next day, The Telegraph reported for the first time the problems it had faced in trying to report the allegations. “The British #MeToo scandal which cannot be revealed”, ran the headline accompanied by a silhouette and a subdeck that read: “Leading businessman facing allegations of sexual harassment and racial abuse gags The Telegraph from publishing details.”

Sir Philip might have breathed a sigh of relief. Except that a little over 24 hours later on Oct 25, Lord Hain, a former Labour Cabinet minister, stood up in the House of Lords and named the Arcadia boss as the subject of The Telegraph investigation.

He said: “Having been contacted by someone intimately involved in the case of a powerful businessman using non-disclosure agreements and substantial payments to conceal the truth about serious and repeated sexual harassment, racist abuse and bullying, which is compulsively continuing, I feel it’s my duty under parliamentary privilege to name Philip Green as the individual in question given that the media have been subject to an injunction preventing publication of the full details of this story which is clearly in the public interest.”

Anybody who thought Sir Philip’s unmasking in the Lords would signal the end of the legal case was wrong. Rather than shying away, Sir Philip, aided by Schillings, if anything upped its game. Legal letters continued to fly.

In fact, the first legal letters started to arrive in April last year when Sir Philip first got wind that The Telegraph was investigating him. They sought to portray standard newsgathering as “bullying” and “harassment”, allegations wholly denied by The Telegraph.

The Telegraph was warned “harassment is also a criminal offence which can lead to your journalists being fine[d] or imprisoned”. When the reporters continued to investigate, Sir Philip contacted editors and executives, warning them to desist. Following the naming of Sir Philip, his lawyers and his trusted public relations adviser Neil Bennett, the chief executive of Maitland, went into overdrive.

Sir Philip gave an interview to a tabloid newspaper insisting he had only engaged in “some banter” while more legal letters and emails arrived on a daily basis, accusing The Telegraph of harassment.

In addition, Sir Philip went after The Telegraph’s sources, demanding to know who had told the newspaper what, arguing that the sources must have breached contractual confidentiality.

The Telegraph stood firm, defending its right to protect its sources.

At a hearing on Jan 21, Mr Justice Warby declined Sir Philip’s application to discover The Telegraph’s sources. He also, as part of the costs budgeting exercise, reduced the charging rates Schillings would be allowed to apply.

Mr Justice Warby, less than two weeks before he was due to preside over the full trial, said that Schillings were throwing at the case “a degree of overmanning that cannot be justified” in getting senior partners at the firm to carry out tasks that could be done by more junior staff members.

He said that the legal team hired to gag The Telegraph could not expect to charge more that £550 an hour for their most senior staff and noted that they were charging five times as much as lawyers for this newspaper for certain tasks.

His comments drew attention to the fact that Schillings were claiming £472,757 in preparation of witness statements alone. Lawyers for this newspaper had claimed £80,942, a fifth of Schillings’ bill.

Maybe Sir Philip could see how the tide was turning. Certainly his legal team must have. He had never appeared in court but his advisers would have relayed to him that witness statements would have to be exchanged and he would be called to give evidence.

In Thursday’s judgment, Mr Justice Warby declined to make any ruling on whether the public interest in whistleblowing on sexual and racial abuse should outweigh the confidentiality of an NDA. He also provided minimal legal protection for the alleged victims of Sir Philip who have been threatened with legal action if they now speak out.

Sir Philip has insisted the legal action had been dropped because – after Lord Hain’s intervention – and after four months of deliberation he had realised it was “pointless to continue”. One of his lawyers had argued that Sir Philip had become “little short of a public pariah” and that even if he had won at trial – by keeping the injunction in place – it “would have left Sir Philip in a worse position”.

The public, argued Sir Philip’s lawyers, would think worse of him by not knowing what he was accused of.

But the prospect of Sir Philip entering the witness box was likely not an edifying one. At a previous bristling performance before a parliamentary committee in the wake of the BHS pension scandal, Sir Philip told Richard Fuller, the Tory MP: “Do you mind not looking at me like that all the time?”

And so it was that on Sunday Jan 28, after seven months of a £3 million legal battle, Sir Philip issued his press statement signifying he was bringing his expensive foray to a halt. The man who appears to relish his reputation as a bully and a bruiser no longer had the fight in him.    

• investigations@telegraph.co.uk