BY BRIAN CATHCART
IF THE DAILY MAIL and its press allies are in a froth of hysterical fury about Meghan, the Duchess of Sussex, that may have something to do with the way she continues to humiliate the publishers of the Mail in court.
Fresh decisions today from Lord Justice Warby about remaining aspects of her legal case against the Mail on Sunday only added to the miseries already heaped on the paper at earlier stages.
His latest ruling orders the newspaper to publish a statement announcing its defeat on its own front page, with a slightly fuller account following on page three.
This comes in a written judgment peppered with language which, from an English judge, usually indicates contempt or irritation. ‘The defendant’s submission on this point does not seem to me to belong to the real world of this litigation,’ it states. ‘I do not believe the defendant’s formal objection has any weight.’ ‘These did not strike me as obviously powerful points.’
Lord Justice Warby also gave written reasons for his decision on Wednesday to reject the application by Associated Newspapers (publishers of the Mail papers) for permission to appeal against his earlier judgments that it had breached the Duchess’s rights to privacy and copyright by publishing extracts from a letter she wrote her father.
Here too he gave short shrift: eight paragraphs brushed aside the company’s 10 pages of argument. But as the judge acknowledged, the company retains a right to challenge this in a higher court and Associated’s record suggests it will try, however slim its chances.
Besides the verdicts on the central issues of privacy and copyright, the Duchess has also won significant interim victories on the recovery of legal costs. Unless an appeal is successful, Associated will have to pay, not only its own legal bills, but also at least 90 per cent of the Duchess’s, which are currently estimated at £1.5m.
Today’s decision on the front-page statement adds to her tally of wins.
The judge ruled that it should say:
‘The Duchess of Sussex wins her legal case for copyright infringement against Associated Newspapers for articles published in The Mail on Sunday and posted on Mail Online – see page three.’
And the words on page three will be:
‘The Duchess of Sussex
‘Following a hearing on 10-20 January 2021, the Court has given judgment for The Duchess of Sussex on her claim for copyright infringement. The Court found that Associated Newspapers infringed her copyright by publishing extracts of her handwritten letter to her father in The Mail on Sunday and in Mail Online.
There will be a trial of the remedies to which the Duchess is entitled, at which the court will decide whether the Duchess is the exclusive owner of copyright in all parts of the letter, or whether any other person owns a share.’
A similar statement will be published online.
In discussing the legal arguments about this, the judge noted that MailOnline had continued to publish the offending articles for two weeks after his judgment last month declared them unlawful. ‘This cannot be accidental, or an oversight,’ he remarked. ‘In the absence of any explanation, I am tempted to infer that it is a form of defiance.’
Associated, whose policy in the case has been to fight every point, has made one tactical retreat, abandoning its effort to force a trial on the Duchess’s claim for breach of data protection rights. Remarkably, the paper had rejected the Duchess’s offer to drop this relatively minor claim, but it has now given way.
This means that besides the possibility of a further attempt by Associated to secure the right to appeal, and besides haggling over damages and costs (which is likely to be lengthy), there remains just one slim possibility that an element of the case might actually come to trial.
This involves the question of whether an official of the royal household might have contributed sufficiently to the drafting of the disputed letter to have a share in the copyright. The judge felt he could not reach a judgment on that without hearing the relevant witnesses, and the Mail papers have indicated their determination to see the issue brought to trial in the autumn.
Today the judge reminded Associated that his refusal to rule on that matter was little more than a point of legal detail. Quoting his own earlier judgment, he said that Associated’s arguments ‘seem to me to occupy the shadowland between improbability and unreality’, and declared the suggestion of a second copyright to be ‘at the very outer margins of what is realistic’.
Whether Associated can win a chance to appeal remains to be seen, but there can be no doubt that its experience to date in this case is disastrous. The Duchess’s lawyers have won almost every argument at the first opportunity and without having to call on her or anyone else to testify.
And the pill must be all the more bitter for the newspaper group since this torrent of adverse rulings has come from a judge from whom they may have hoped for sympathy. Lord Justice Warby, in his days as Mark Warby QC, acted frequently for the Mail papers in big cases, indeed he led the Mail on Sunday’s defence in 2006 when it was sued, successfully, by the Duchess’s father-in-law, Prince Charles, for breach of copyright.
