*In January 2021, Markle sought “summary judgment” that Associated had breached her copyright and privacy. This meant that her lawyers asked a judge to find in her favour without a trial, on the grounds that Associated had not offered any adequate defence. Associated’s case was that a) what it had published was in the public interest; b) the Duchess had always intended the letter to be made public; and c) it had been co-written by Jason Knauf of the Kensington Palace communications team, so the copyright did not reside solely with her. It also argued that if a full trial was held, fresh evidence was likely to emerge that would vindicate its claims.
On February 11 last year, Lord Justice Warby concluded that Markle was entitled to summary judgment on the claim for misuse of private information and on the key aspects of the claim for copyright infringement, although in the latter case some minor issues relating to Knauf remained to be tried. In his view, Associated had no real prospect of successfully defending the misuse of private information claim, and there was no compelling reason for a trial of that claim. “The letter was a communication between family members with a single addressee. Precautions were taken to ensure that it was delivered only to him. It was, in short, a personal and private letter. The claimant had a reasonable expectation that the contents of the letter would remain private. The articles interfered with that reasonable expectation.” Warby also found that the publication of the letter infringed Markle’s copyright, and that the matter of Knauf ‘s involvement, “whatever it proves to have been”, was of only “minor significance in the overall context”. As the Mail titles and other friendly newspapers had represented the Knauf business as all but destroying Markle’s case, it is worth noting what Warby had to say about it:*
The defendant’s factual and legal case on this issue both seem to me to occupy the shadowland between improbability and unreality. The case is contingent, inferential and imprecise. It cannot be described as convincing, and seems improbable. It lacks any direct evidence to support it, and it is far from clear that any such evidence will become available. It is not possible to envisage a Court concluding that Mr Knauf’s contribution to the work as a whole was more than modest. The suggestion that his contribution generated a separate copyright, as opposed to a joint one, is, in my judgment, at the very outer margins of what is realistic.
- Markle was seeking an “account of profits” as a remedy for the copyright infringement, a sum equivalent to the profits the paper made by breaching her copyright. After Warby had granted summary judgment, she made clear that, to save time and cost debating the issue any further in court, she would accept nominal damages in relation to the misuse of her private information. Associated immediately claimed that this meant the Duchess was effectively abandoning all her claims to compensation. Warby would have none of this, stating:
I accept the explanation provided on the claimant’s behalf: that she is seeking to adopt a sensible and proportionate approach to the next stages of this case. The defendant’s submission on this point does not seem to me to belong to the real world of this litigation.*
Associated produced new evidence from Knauf alleging that Markle was aware at the time the letter was written that her father might make it public and that there was at least indirect contact between her and the authors of a book, Finding Freedom, which discussed the letter. This proved, Associated argued, that the letter was never really private and that Markle herself was complicit in making its contents public.
On the day the appeal hearings began, the coverage in the Mail and its allies was dominated by just one thing: Markle had apologised to the court after having to revise her story about a briefing given on her behalf to the authors of Finding Freedom. The papers crowed that Meghan had been caught lying – indeed, she might even be charged with perjury. However, in the actual appeal, the matter of the apology scarcely figured at all, and Sir Geoffrey Vos stressed that he did not consider relevant to the appeal any of the allegations about Markle’s dealings with others over the letter. Indeed, it played only a minor role in Associated’s case in court, even though it dominated coverage of the appeal in its newspapers and those of its allies.
Associated’s case was unanimously rejected and the court found that Warby had been entirely correct in his summary judgment. As Sir Geoffrey Vos concluded: “Despite prompting from the bench, Associated Newspapers has not, even after a two-and-a-half-day hearing, clearly identified the triable issues that falsify this reasoning.” In other words, Associated’s legal team had brought nothing new and substantive to the Appeal Court.
https://bylineinvestigates.com/2022/03/14/the-truth-about-meghan-markle/