THE COURT OF APPEAL has granted the owners of the Mail on Sunday permission to appeal against most of the judgments given against it in the copyright and privacy case brought by Meghan, the Duchess of Sussex.
Associated Newspapers are hoping to overturn a series of humiliating high-profile defeats in the High Court in the spring, when Lord Justice Warby found that the newspaper acted unlawfully in publishing large parts of a private letter the Duchess sent to her father.
A judge in the Court of Appeal, Lord Justice Bean, has ruled to allow an appeal, though he explained that this was not on the merits of the company’s arguments but in view of ‘the exceptional public interest in the issues’.
Associated’s challenges to the legality of the Warby judgments will be heard by three Court of Appeal judges over one or two days at a date yet to be fixed.
The decision is a rare setback for the Duchess in a case which has seen her score victory after victory. Not only was the Mail on Sunday found – at the earliest opportunity – to have breached her rights to privacy and copyright, but Lord Justice Warby also ruled in her favour on a string of issues relating to costs and remedies.
She will note that Lord Justice Bean has offered little encouragement to Associated. Under the rules, appeals are allowed to go forward either if they have a ‘real prospect of success’ or if there is some other compelling reason. The decision states:
So while the judge is saying that the issues are of public importance he is also declining to offer any opinion on the company’s prospect of success. Lord Justice Warby, in giving his original judgments, had repeatedly said he saw no prospect that any appeal would be successful.
The full list of Associated’s 12 ‘pleaded grounds’ of appeal is not yet available, but we know that Lord Justice Bean has rejected four. Associated may not challenge Warby’s ruling that the disclosure caused the Duchess distress, nor may it dispute his finding that the electronic draft of the letter was itself an original work for copyright purposes.
The two other rejected grounds relate to Lord Justice Warby’s ground-breaking ruling that the Mail on Sunday must publish a front-page statement admitting its breach of copyright, and this means that if the appeal fails overall the paper will have to publish.
Even as the Court of Appeal is taking up the case, the High Court has still not quite finished with it. The Duchess is pressing for compensation in the form of an ‘account of profits’ rather than damages, which means that Associated must show how much money it made from the unlawful publication. This and the allocation of costs have still to be argued fully before Lord Justice Warby.