Meghan Markle ‘should face cross- examination’ in privacy claim, High Court appeal hearing told

A High Court judge today denied the Mail On Sunday and MailOnline their right to an appeal hearing over the Duchess of Sussex’s privacy and copyright claims and ruled that he was correct to grant summary justice on the privacy claim with no trial.

Lord Justice Warby refused to overturn his ruling from last month when he decided that the publisher Associated Newspapers Limited (ANL) had no right to a full trial in the privacy battle after the Mail on Sunday published extracts of a letter she sent to her estranged father Thomas Markle in 2018.

The publisher said it would now take its case to the Court of Appeal. A spokesman said: ‘We are disappointed with the judge’s decision not to allow the privacy case to be determined at trial and by his refusal of leave to appeal today. 

‘We will be applying to the Court of Appeal for permission to appeal in relation to his decisions on both the privacy and copyright claims.’

Justice Warby also ordered the publisher to make an interim payment of £450,000 towards Meghan’s costs, with the remainder to be decided at a later date.

She had claimed almost £270,000 in costs for the summary judgment hearing while the remainder is for the costs of the case to date. 

She is requesting costs of £1.53million in total, which the publisher’s lawyers described as ‘extraordinary.’

The judge also ruled that a hearing will take place on the remaining issue of copyright ownership of the letter in October.

Meghan Markle won her privacy claim against  Associated Newspapers Limited (ANL), publishers of the Mail On Sunday and MailOnline over a letter she wrote to her father Thomas 

Lawyers for the publishers had today challenged the judge’s original decision to refuse a trial, outlining ten separate grounds that he failed to take into account in his original ruling.

The publishers argued that he had failed to sufficiently take into account that the Duchess ‘undermined or diminished’ the weight of her own privacy right by authorising friends to brief the authors of a People magazine article about the letter and to collaborate with the authors of the royal biography ‘Finding Freedom’ before the People magazine article was published. The book, by Omid Scobie and Carolyn Durant, contained references to the letter. 

The Duchess of Sussex has been involved in a long-running legal battle over the 2019 note

The Duchess of Sussex has been involved in a long-running legal battle over the 2019 note

They argued that Meghan used the letter as part of a ‘media strategy’ with a view to publicizing its contents and had help from Palace aides writing it.

The publisher argued that the judge’s approach gave excessive emphasis to the Duchess’s privacy rights at the expense of their rights of freedom of expression and also Mr Markle’s right to give his side of the story.

They also insisted that a full trial should take place because further evidence would be made available by then and that the judge was wrong to assume that ‘nothing of significance would emerge.’

The lawyers revealed that Meghan had yet to disclose evidence in response to key claims being made and that Mr Justice Warby failed to take into account that her case had ‘shifted’ after she admitted that she did authorise one friend to speak with the authors of Finding Freedom.

The publisher’s lawyers maintained: ‘It is submitted that an appeal on these grounds would have a real prospect of success.’

In contesting the case and seeking the right to appeal, the publishers said the case ‘cried out’ for Meghan to be cross-examined over a letter she wrote to her father.

Lawyers for the publisher argued that the case must proceed to a full trial, where witnesses, including Meghan, Mr Markle and other key figures can be called.

The publisher’s lawyers said: ‘This shifting case cried out for investigation at trial through cross-examination of the Claimant.’

But after spending most of the day ruling on a number of issues related to the case, Lord Justice Warby took just 20 minutes to reject the publishers bid to appeal.

He concluded that he was rejecting it because he felt their case had ‘no prospect of success.’

Meghan launched a legal action against the Mail on Sunday and its publisher after her father Thomas (together when she was a teenager) shared a letter she sent him after her wedding

Meghan launched a legal action against the Mail on Sunday and its publisher after her father Thomas (together when she was a teenager) shared a letter she sent him after her wedding

He said: ‘I’m not going to grant permission to appeal. Appeals are against orders not judgments.’

Justice Warby added: ‘I don’t myself consider that the grounds have any realistic prospect of success or there’s any compelling reason for an appeal.’

The Judge ordered that the question of financial remedies would be decided at a later date after Meghan had initially indicated she would accept nominal damages.

She was also granted the right to ‘seek an account of profits’ whereby she may be able to retrieve a proportion of any profits the publisher made from reproducing parts of the letter.  

The publisher argued that the judge’s approach in his initial ruling gave excessive emphasis to the Duchess’s privacy rights at the expense of their rights of freedom of expression and also Mr Markle’s right to give his side of the story.

They also insisted that a full trial should take place because further evidence would be made available by then and that the judge was wrong to assume that ‘nothing of significance would emerge.’

The publisher argues that Meghan co-operated with the book 'Finding Freedom'

The publisher argues that Meghan co-operated with the book ‘Finding Freedom’

The publisher’s lawyers also said that Mr Justice Warby ‘erred’ by disregarding claims contained in a solicitor’s letter representing a group of former Royal aides, dubbed the ‘Palace four’ that they would be able to ‘shed light’ on Meghan’s letter.

The letter from law firm Addleshaw Gooddard was sent to the parties ahead of last month’s summary judgment hearing on behalf of Jason Knauf – formerly communications secretary to the Duke and Duchess of Sussex, whom the newspaper claims was involved in the wording of Meghan’s letter – and Christian Jones, their former deputy communications secretary, plus two other former Royal aides.

Meghan has asked the High Court to order The Mail On Sunday to hand over any copies of her handwritten letter to her father and destroy any electronic copies of it or any notes made about it.

Justice Warby ruled that he was not able to grant this given that copyright issues were still to be resolved.

Ian Mill QC, representing Meghan, said: ‘This case is a paradigm example of one in which there is a very real need for an injunction.

In avoiding a full trial in her dispute over the letter, Meghan (pictured with Prince Harry) avoided a potential High Court showdown with her estranged father, Thomas

In avoiding a full trial in her dispute over the letter, Meghan (pictured with Prince Harry) avoided a potential High Court showdown with her estranged father, Thomas 

‘It is required in order to protect the claimant’s rights and stop the continuing acts of infringement.

‘The defendant has offered no undertaking, the defendant has failed to deliver up copies it has of the letter such that the threat to infringe and further to misuse her private information remains real and, inexplicably, the defendant has still not removed the infringing articles from MailOnline.

‘This is in the face of a judgment which has found, in the clearest possible terms, that the defendant’s acts of publishing those articles infringes the claimant’s rights.

‘Accordingly, at the time of writing, the defendant defiantly continues to do the very acts which the court has held are unlawful.’