By Brian Cathcart
The publishers of the Mail on Sunday opened their appeal against their High Court defeat by Meghan, the Duchess of Sussex today by announcing that they would produce new evidence from a former royal official, Jason Knauf.
The Duchess last February secured ‘summary judgment’ that Associated Newspapers breached her rights in copyright and privacy when it published substantial extracts from a letter she had written to her father, Thomas Markle.
Andrew Caldecott QC, lead barrister for Associated, told the Court of Appeal on the first day of a three-day hearing that a new witness statement from Mr Knauf, formerly a senior royal communications official, contradicts the Duchess’s statements about the letter.
Knauf’s statement, according to Caldecott, says that the Duchess was aware at the time the letter was written that her father might make it public and it also says that there was at least indirect contact between the Duchess and authors of a book which discussed the letter.
Associated is likely to rely on these claims to support its legal argument that the letter was never really private and that the Duchess herself was complicit in making its contents public.
The court has not yet heard from the Duchess’s counsel so we have no indication how she will respond to this, though one of the judges mentioned that the Duchess herself had submitted a substantial new statement in evidence.
This first court session was devoted mainly to arguments from Associated about the legal correctness of last February’s summary judgment by Lord Justice Warby, in which he handed victory to the Duchess without a trial, saying that none of the evidence that might be heard at trial could make any difference to his conclusions.
Caldecott cited a variety to legal precedents to support an argument that Warby had been mistaken on points of law when reaching his conclusions.
The case is being heard by a very senior panel of judges. In the chair is Lord Justice Sir Geoffrey Vos, who as Master of the Rolls is England’s second-ranking judge after the Lord Chief Justice. Sitting with him are Lady Justice Dame Victoria Sharp, who as President of the Queen’s Bench Division is the third-ranking judge, and Lord Justice Bean, an Appeal Court judge of seven years’ standing.
The business of the court is not to make a judgment on whether the Mail on Sunday was legally justified in publishing the letter but exclusively to decide on whether Warby was right to reach his conclusions without the benefit of a trial. Lord Justice Vos stressed this distinction to Caldecott and appeared to show some impatience when Caldecott strayed from arguments of law into arguments about the facts.
If Associated persuades the court that Warby was wrong the whole case will go back to the High Court for a full trial, where the issues will be heard (probably by a different judge) from square one. If the appeal fails, the Duchess’s victory will stand. It is open to the court to make different decisions with relation to the two issues: privacy and copyright.
Jason Knauf has been a shadowy figure around this case from the outset. Associated argued before Lord Justice Warby that he was one of four palace staff who might be able to shed light at trial on the writing of the letter. Warby rejected this in his judgment as vague and irrelevant, and some weeks later Knauf’s solicitors released a letter stating explicitly that he made no claim to joint copyright in the letter.
The hearing resumes tomorrow at 10.30am London time, when the Knauf statement will be discussed in detail. After the hearing ends on Thursday the judges are likely to take two weeks or more to reach and publish their conclusions.
The proceedings are being live-streamed: https://www.judiciary.uk/you-and-the-judiciary/going-to-court/court-of-appeal-home/the-court-of-appeal-civil-division-live-streaming-of-court-hearings/