THE JUDGE in the privacy and copyright case brought by Meghan, Duchess of Sussex against the Mail on Sunday has ruled that the newspaper must pay a larger share of her costs because it had ‘conducted itself in a way that is outside the norm’.
Delivering his latest written judgment in the case, Lord Justice Warby complained of a three-week delay last month, caused when Associated Newspapers, owners of the Mail on Sunday, ‘refused to face up’ to the ‘obvious’ fact that new evidence had ‘put paid to its remaining case on ownership of copyright’. (Par 66)
What took three weeks, the judge declared, ‘could and should’ have been resolved in six days. The result was delay, unnecessary complexity and additional costs and so he ordered Associated – which is already required to pay most of the Duchess’s costs – to pay a higher share when the relevant bills are in.
The Duchess won most of her case in February, on summary judgment – that is, without even needing to go to trial – the judge ruling that the Associated Newspapers defence was so weak it had no chance of success.
What I do find is that the defendant conducted itself in a way that is outside the norm, and justifies indemnity costs, in refusing for very nearly three weeks to accept that the Addleshaw Goddard letter of 6 April 2021 put paid to its remaining case on ownership of copyright.Lord Justice Warby
One outstanding issue was whether she owned exclusive copyright in the letter to her father of which large parts were unlawfully published by the newspaper, and Associated’s claims on that point came to nothing at a hearing earlier this week.
There was a small consolation for the newspaper group when the judge dismissed a claim by the Duchess’s lawyers that it had behaved dishonestly by raising the argument about possible shared copyright at all. Picking his words with obvious care, Lord Justice Warby declared that Associated’s case, while ‘certainly thin’, could not be described as ‘unreasonable’.
In reality, these arguments are now about money. As outright winner in the case – pending Associated’s attempts to win a right of appeal – the Duchess has been awarded costs, which means that Associated must pay most of her legal bills. But how they are calculated and what proportion must be paid are inevitably the subject of haggling – and it is haggling that the lawyers naturally take extremely seriously.
Two other matters remain unresolved. The first is damages, and here the judgment dished out further unwelcome news to Associated. The Duchess has opted, both in privacy and copyright, to seek an ‘account of profits’ rather than conventional damages. In other words, she wants her compensation to be based on a calculation of how much money Associated made by publishing her material unlawfully.
Such calculations are inevitably complex and will take months, but the judge ruled against Associated on the right way to proceed. The company apparently wanted to keep the issue vague for as long as possible, but the judge ordered it to start producing meaningful financial information sooner rather than later.
Finally, there are the appeals, or rather the applications by Associated for permission to appeal. So certain of his ground was Lord Justice Warby that he refused Associated any automatic right to appeal against his judgments. With characteristic stubbornness, however, the company is applying to have that refusal overturned by a higher court so that it can mount full appeals.
Is there any chance it will succeed? Lord Justice Warby clearly doesn’t think so and Associated’s whole case has appeared feeble from the start, but you rarely know for sure with English law.
The process is likely to take some time, especially as Associated is having to amend its application following its defeat this week. The official court log states that Associated was asked to submit its documentation a month ago and that those documents are still awaited.
Download the full judgment here: