By Brian Cathcart
ON THE SECOND day of the three-day appeal by the publishers of the Mail on Sunday against the High Court privacy and copyright judgment in favour of Meghan, Duchess of Sussex, the focus of the argument moved to the rights of her father, Thomas Markle.
Andrew Caldecott QC, barrister for Associated Newspapers, made a case that the judge in the lower court, Lord Justice Warby, had failed adequately to take account of Mr Markle’s right of reply to what he saw as falsehoods about him published by People magazine.
This was a matter that could only have been clarified if all the relevant evidence had been heard from witnesses, Caldecott asserted, so a trial was essential.
The central issue before the Court of Appeal is whether Warby was right to give ‘summary judgment’ on the basis of written evidence and lawyers’ submissions, without holding a trial. If Associated wins, in other words, the matter will be sent back to the High Court to be tried, in whole or in part.
The People article quoted criticisms of Mr Markle’s behaviour by an anonymous friend of the Duchess and Associated says that it was in response to those criticisms that he turned to the Mail on Sunday, which then published substantial extracts from a letter the Duchess had written him.
Caldecott argued that Warby, in reaching his judgment, underestimated the inaccuracies in the People article, the harm it had done to Mr Markle and Mr Markle’s legal right to give expression to his views in response. All these were matters that would have been clearer if they had been explored through witnesses at trial.
Justin Rushbrooke QC, opening for the Duchess, said that, far from failing to take account of these issues, Warby had explicitly stated in his judgment that his conclusions would have been the same even if Associated had been able to prove at trial every claim it had made – including claims about Mr Markle.
Rushbrooke also argued that the Mail on Sunday, in publishing about half of the letter, had gone far further than merely enabling Mr Markle to respond to the People article. Most of what it disclosed had nothing to do with anything asserted in People; instead he accused the paper of cynically ‘regaling its readers with sensational material’.
Very little of the day’s business was taken up by the new evidence submitted to the court by Associated in the form of a statement by the Duchess’s former press secretary, Jason Knauf, which was accompanied by a series of text and email exchanges between the two.
Caldecott said this evidence showed that when she was writing the letter the Duchess understood that it could be made public, lending weight to Associated’s argument that the letter was never truly a private document.
He also cited the statement as evidence that, contrary to her lawyers’ submissions, the Duchess had cooperated with the authors of a book, Finding Freedom, that discussed the letter. This, he said, was proof of ‘a willingness to feed it into the public bloodstream’.
Rushbrooke did not address this at any length (he may do so tomorrow) but he placed the Knauf statement under the general heading of matters that Warby had made allowance for in his judgment. In other words, he argued that Knauf’s evidence was not relevant to the appeal.
The presiding judge, Lord Justice Sir Geoffrey Vos, in an intervention that will have been welcomed by Associated, said he heard ‘alarm bells’ because ‘It appears there are a number of facts that the judge [Warby] did not know’. Other remarks he made, however, appeared to show sympathy with the Duchess’s case, notably in relation to the use made of the letter by the Mail on Sunday.
The final day of the hearing is tomorrow. It is live-streamed here: 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/