By Brian Cathcart
THE JUDGE who gave Meghan, Duchess of Sussex her victory over the Mail on Sunday has allowed the newspaper a delay before it has to print a front-page statement about the verdict.
Lord Justice Warby, in his latest ruling on the remedies and consequences that follow his original judgment, gave time for the paper to appeal against his decision that it must formally acknowledge its court defeat on its front page, on page 3 and online.
This means the owner of the Mail on Sunday, Associated Newspapers, is making two appeals in the case, or rather two applications for permission to appeal. One is against the judgment as a whole, in which the judge found that the Mail on Sunday had breached the Duchess’s rights of copyright and privacy by publishing large parts of a private letter, and the other is against the requirement to print the front-page statement.
In both cases the judge has rejected Associated’s applications to him for permission to appeal, saying firmly that he saw no prospect that such appeals could succeed, but Associated is exercising its right to ask the Court of Appeal to overrule him.
We don’t yet know the timings for these applications, which are dealt with by a single Court of Appeal judge, usually on the basis of submissions in writing. If the go-ahead is given in either case the arguments will be heard by three judges in a public hearing.
Although Associated’s determination to exhaust every legal avenue means the Duchess has to wait for certainty about the outcomes, she has the reassurance that Lord Justice Warby is clearly as certain of his ground as a judge can be. He found for her at the first time of asking, without need for a trial; he did so in terms that were utterly humiliating for Associated; and he has briskly dismissed both of the company’s applications to appeal.
These conclusions were the more resounding because this is a judge from whom Associated may well have expected sympathy, since in his days as a barrister he had frequently been chosen to act for the company in big cases where similar issues were at stake.
In his latest judgment on matters of detail he handed a few crumbs to the newspaper in relation to his order that it must make a front-page statement.
While he had previously set out the words that must be published, both on the front of the paper and inside, as well as on the MailOnline site, the judge had not specified the exact form and location on the page. The two sides put forward suggested layouts and he has preferred the paper’s, which means that the statement should appear at the bottom of the front page in large type.
Assuming that Associated does not succeed in overturning the judge’s ruling on appeal, this will be the wording:
‘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 3.’
There will follow, above the fold on page 3:
‘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.’
Associated also persuaded the judge that the similar statement ordered to appear online should be published on the home page for only one day, rather than seven, as the Duchess’s lawyers proposed. For the remaining six days, the judge ruled, it should appear on a news page.
Much remains to be resolved this case, even setting aside those possible appeals. The latest ruling settles many matters of costs in the Duchess’s favour – meaning that Associated Newspapers is ordered to pay most of her lawyers’ bills, but further hearings have been set to debate, notably, the form and size of damages to be paid.
Beyond those there remains the one question the judge felt could not be resolved without a trial at which witnesses would be heard. This concerned the possibility, advanced by Associated, that the Duchess did not own exclusive copyright in the letter but that a royal household official might have contributed sufficiently to its writing to share it.
The judge has described this as a minor issue in which there was little prospect that shared copyright could be proved, but Associated thus far appears keen to pursue it and a trial in October remains possible.