Professor Brian Cathcart reviews the Duchess of Sussex’s latest court hearing.
MEGHAN, the Duchess of Sussex, will learn within weeks whether she will have a quick victory in her privacy and copyright case against the Mail on Sunday newspaper or whether it will go to full trial in London in the autumn.
After a two-day hearing in which he heard arguments from counsel for the Duchess and for the paper’s owner, Associated Newspapers, Mr Justice Warby told the rival legal teams he aimed to produce a draft decision in two weeks, though publication of the completed decision will take longer.
The case arises from the publication by the Mail on Sunday of substantial extracts from a letter from the Duchess to her father, Thomas Markle, written shortly before her marriage to Prince Harry in 2018. She claims, and the paper denies, that this was a breach of her privacy and data protection rights and also of her copyright.
The arguments over the past two days concerned mainly whether it was possible for the judge to deliver ‘summary judgment’ – in other words to make a final decision in the case – without seeing facts tested in a full trial. Counsel for the Duchess insisted that none of the essential facts were in dispute, while the defence identified a range of issues that it said could only be resolved by questioning witnesses in a trial.
At this stage nobody can predict what the judge’s conclusion will be. He dropped no obvious hints and any estimate of the relative success of the legal teams is bound to be subjective.
The possibilities are these.
1. The judge could rule in favour of the Duchess on both main parts of the claim (privacy and copyright), in which case she would receive damages and the proceedings would probably be at an end.
2. He could find in her favour on one part of the claim, in which case the Duchess might either decide to proceed to trial on the remainder of the claim or might be content with the fact that the paper had been shown to have broken the law and so drop the remainder of her claim.
3. He might dismiss the application completely, finding that Associated had raised sufficient factual issues to require a trial, in which case (assuming the Duchess does not decide to throw in the towel) the whole matter would go for full trial in the autumn.
In the case of the third outcome, importantly, Associated would not have won (whatever its newspapers might say) and the Duchess would not have lost. The newspaper group would simply have averted an early defeat and lived to fight another day.
On privacy, the Duchess’s lawyers argued broadly that everything the judge needed to know to make a decision – notably that the letter was a private one and that the newspaper had published large parts of it – was beyond reasonable dispute.
Associated’s case is that it was justified in publishing chiefly because (a) the letter was not really meant to be private and (b) friends of the Duchess had made misleading claims in public about what it said. With those arguments in mind, counsel for the paper insisted that the matter could not be decided without hearing from, for example, people she spoke to when writing the letter and the friends who spoke about after it was sent.
On copyright, the Duchess’s counsel said in effect that Associated had no defence at all and that the arguments it put forward were ‘legally heretical’ and ‘nonsensical’. In response the paper’s lawyers argued that her rights under copyright law were affected by the degree to which other people may have contributed to the letter in various ways, and that that could only be established by questioning her and those people.
Mr Justice Warby gave little away. He raised more questions with the lawyers representing Associated, but that could merely have been for clarification rather than indicating scepticism.
A final point. If, when he delivers his ruling, he finds against Associated on one or both issues, the newspaper group will probably seek to appeal. It has a record of relentlessness in these matters, no matter how weak its case or how high the cost.
Associated appealed in 2006 when the Duchess’s father-in-law, Prince Charles, was granted summary judgment against it in 2006 in relation to diaries of his that the Mail on Sunday had acquired. That appeal was dismissed and Associated was refused permission to appeal to the highest court (then the House of Lords).