Duchess of Sussex loses first stage of privacy claim against the Mail on Sunday and MailOnline

1 May 2020, 12:13

The Duchess of Sussex launched the legal action last year
The Duchess of Sussex launched the legal action last year. Picture: PA
EJ Ward

By EJ Ward

The publisher of the Mail on Sunday has won the first High Court battle in the Duchess of Sussex's privacy claim against it over the publication of a letter to her estranged father.

Meghan is suing Associated Newspapers, publisher of the Mail on Sunday and MailOnline, over an article which reproduced parts of the handwritten letter she wrote to Thomas Markle, 75, in August 2018.

In a ruling on Friday, Mr Justice Warby struck out parts of Meghan's case, following an application by Associated Newspapers at a hearing last week.

However, the judge said those parts of the duchess's case may be revived at a later stage if they are put on a proper legal basis.

The judge said: "Some of the allegations are struck out as irrelevant to the purpose for which they are pleaded.

"Some are struck out on the further or alternative ground that they are inadequately detailed.

"I have also acted so as to confine the case to what is reasonably necessary and proportionate for the purpose of doing justice between these parties.

"I do not consider that the allegations struck out on that basis go to the 'heart' of the case, which at its core concerns the publication of five articles disclosing the words of, and information drawn from, the letter written by the claimant to her father in August 2018.

"Some aspects of the case that I have struck out at this stage may be revived if they are put in proper form."

Published in February, the headline on the article read: "Revealed: The letter showing true tragedy of Meghan's rift with a father she says has 'broken her heart into a million pieces'."

The initial case hearing was held via videolink last week where the newspaper's legal team asked for parts of Meghan's care to be struck out.

The High Court heard the letter was published to satisfy the "curiosity" of readers, which it had "deliberately generated".

But, the Royal's lawyers said the publisher had, through a series of articles, "stirred up" the dispute between her and her father.

Read more: Meghan hasn't spoken to her father since wedding, court hears

In the previous hearing counsel for the publisher argued allegations by Meghan that the articles were responsible for "causing" the dispute between them were "objectionable".

Antony White QC said Meghan's contention that her "vulnerable" father was "harassed and humiliated", "manipulated" and "exploited" should not form part of her case.

David Sherborne, representing the duchess, claimed the publisher had "harassed" Mr Markle, adding that it had "finally manipulated this vulnerable man into giving interviews", which Mr Markle had later described as "lies and bullshit".

Mr Sherborne accused the publisher of "stirring up" a dispute between Meghan and her father, and argued it "caused the very dispute" that it says, "justifies the publication of this letter".

In written documents prepared for the hearing, Mr Sherborne said no consent was sought from the duchess in advance of the articles being published.

He claimed this was a "deliberate decision" taken by the publisher to avoid risk of her seeking to prevent publication, and also to "secure the enormous 'scoop'" with such a "highly sensational story".

Mr Sherborne also said the publisher "deliberately misled the public by presenting a false picture of the letter".

He said it did this by leaving out parts of it which "demonstrate the claimant's care for her father and others, as well as her concern about the UK tabloid media exploiting her father, and the fact that she addresses untruths previously published by the defendant".

Mr White, for the publisher, argued that some of the allegations made by Meghan are irrelevant and not made with a proper legal basis.

In written documents, Mr White said the duchess alleges the publisher was "one of the 'tabloid' newspapers which had been deliberately seeking to dig or stir up issues between her and her father".

He said: "This is an allegation of seriously improper deliberate, i.e. intentional, conduct to the effect that the defendant's motive was to seek to manufacture or stoke a family dispute for the sake of having a good story or stories to publish."

Mr White argued that such "complex tests of mental state" of the publisher are "irrelevant to the claim for misuse of private information".

He added: "In this context it appears that the claimant has seen fit to put these allegations on the record without having spoken to Mr Markle, verifying these allegations with him or obtaining his consent (she admits ... that she has had no contact with him since the wedding).

"It is therefore highly unlikely that she has any credible basis for these allegations of impropriety towards him, or that proper particulars could be given."

Mr White also took issue with the duchess's allegation that the publisher "acted dishonestly" when deciding which parts of her letter to her father to publish.

He added: "It is extremely common for the media to summarise or edit documents when reporting current events, and that is not a basis for an allegation of dishonesty.

"It is open to the claimant to say, as she does, that the presentation of the letter was misleading - which is firmly denied - but there is no basis for her to allege that anyone working for the defendant was dishonest in the drafting and editing process."

The duchess is seeking damages from Associated Newspapers for alleged misuse of private information, copyright infringement and breach of the Data Protection Act.

Meghan has previously said any damages she may be awarded if she wins her case will be donated to an anti-bullying charity.

Associated Newspapers wholly denies the allegations, particularly the claim that the letter was edited in any way that changed its meaning, and says it will hotly contest the case.

It is understood the Duke of Sussex and Meghan listened online to the parts of the hearing conducted by her lawyers.

Sections of the letter were published in the newspaper and online in February last year, and it was announced the duchess would be bringing legal action in October.

The headline on the main article read: Revealed: The letter showing true tragedy of Meghan's rift with a father she says has 'broken her heart into a million pieces'.

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