The hearing of the appeal by the publisher of the Mail on Sunday against the High Court privacy and copyright ruling in favour of Meghan, Duchess of Sussex, ended today and the judges said they would announce their decision ‘in due course’ – probably a matter of weeks.
The final afternoon session saw the lead barrister for Associated Newspapers, Andrew Caldecott QC, struggling under scrutiny from the bench, with the judges apparently sceptical about his argument that the newspaper had been justified in publishing large extracts from a private letter from the Duchess to her father on the grounds that her father was responding to slurs inspired by her.
Caldecott recovered after some awkward moments, but the judges appeared to suggest that they did not believe that publication in the Mail on Sunday, in the form it took, had been a proportionate response.
It may be wrong to read much into this. The Duchess’s counsel endured some uncomfortable moments yesterday, and today’s challenges may have been no more than the judges seeing how the arguments stood up under pressure.
Associated’s appeal is narrowly focused, challenging the decision of the High Court to give ‘summary judgment’ in the case, in other words to reach a decision without holding a trial. This means that a victory for Associated would not vindicate the Mail on Sunday but it would send the case back to the lower court for a full trial.
The nub of the argument over three days in court was this: Associated’s lawyers claimed that the judge, Lord Justice Warby, made errors of law in reaching summary judgment and that evidence available at the time, as well as fresh evidence that has since emerged, would tilt the balance of the case if it heard fully at trial.
In response the Duchess’s lawyers asserted that Warby’s long judgment had followed the law scrupulously and had made clear that in reaching his conclusions without a trial he made allowance for the possibility that Associated would be able to prove at a trial everything it claimed. In other words, he found that even at its strongest the Associated case could not have persuaded him.
In more detail, Associated argued that Warby failed to give sufficient weight to the wrong done to the Duchess’s father, Thomas Markle, by an article in People magazine which it said was orchestrated by the Duchess. The article, it said, triggered Mr Markle’s right of reply and justified the publication by the Mail on Sunday of substantial parts of the letter from daughter to father.
Associated also asserted that Warby failed to acknowledge the degree to which the Duchess had nullified her own right to privacy and copyright in the letter by encouraging others to spread word of it – a friend who spoke to People and the authors of a book that also referred to the letter.
The Duchess’s lawyers replied that Warby had dealt fully with both matters. Associated’s claims about the People article were exaggerated, they said: it contained only one minor inaccuracy that could not be said to justify the publication of a private letter, much of which dealt with different matters.
As for the Duchess telling others about the letter, her lawyers insisted that although she or her proxies spoke of it in general terms she had never wanted its contents made public and did not share its contents with anyone. In any case, they said, Warby had made clear that even if she had done everything that Associated claimed she had not forfeited her rights over the letter.
The court heard new evidence about her dealings with others about the letter and Associated said this added further weight to the need for the full facts to be established at trial. Lawyers for the Duchess said, again, that Warby had already taken all this into account.
Though outside the court the Daily Mail and other papers have treated this new evidence as sensational, the presiding judge, Sir Geoffrey Vos, the Master of the Rolls, stated bluntly that he thought none of it relevant to the question of whether summary judgment had been justified.
The three very senior judges have focused on whether Warby, in reaching judgment, correctly applied the two tests he was required to apply: first, did the Duchess have a genuine right of privacy and copyright in the circumstances, and second, if she did was it outweighed by any other rights, such as the newspaper’s right of free expression or Mr Markle’s right to put the record straight.
Open to the judges are four possible findings: they can conclude that Warby was right on both privacy and copyright; that he was right on copyright but wrong on privacy; that he was right on privacy but wrong on copyright (highly unlikely); and that he was wrong on both.
What is at stake for the parties? For Associated, defeat on both would mean either that it must accept it has been beaten by the Duchess or else it must seek to appeal again, this time to the Supreme Court. Victory on both counts or on one, on the other hand, would mean it lives to fight another day, at trial, and this would inevitably be presented in its newspapers, however dishonestly, as a ‘triumph for press freedom’.
For the Duchess, anything less than victory on both parts would take her back a large step, obliging her to pursue her case through a full public trial. But the fundamentals that led Warby to give her victory would remain the same: in other words, a very senior judge specialising in media matters took the view that the facts were not just in her favour but overwhelmingly so.
The Duchess can thus feel pretty confident that if there is a trial she will win again, which in turn means that she can reasonably expect to recoup from Associated the very large additional costs of pursuing her case at trial.
The trial, incidentally, would probably be conducted before a different judge and there would be no jury.
Its likely outcome aside, however, the experience of a trial would undoubtedly be more challenging for the Duchess than for Associated, a company that is so often in court it must feel at home there. She would almost certainly be required to give evidence and face cross-examination and so might her husband, Prince Harry, and one or more of her friends. She would also have to endure testimony by her father.
Unpleasant as this prospect would be for her, the ugliness would be magnified many times by the likely conduct of the Mail papers and their allies across most of the UK press, which loathe the Duchess and have long shown a shameless willingness to lie and distort the facts about her to stir hostility.
Finally, a victory for Associated in this appeal would mean postponing closure. It is nearly three years since the Mail on Sunday published the extracts from the letter and several months more would probably pass before a trial could begin. If, as seems likely, the Duchess wins at trial, Associated will almost certainly then seek to appeal again.
Associated gains by delay in three ways: it holds a financial advantage because it is owned by a billionaire who has infinite funds for litigation whereas the Duchess does not; it profits by publishing tendentious coverage of the case and relishes the global publicity the case generates; and it postpones again and again the day when it may be found responsible, thus seeing the whole issue slip into history and public forgetfulness.
There is no point in complaining about this, and the Duchess’s lawyers will certainly have warned her about it. All the evidence indicates that she can and will see the process through, and if, by chance, she were to lose in the High Court she would, after all, have a right to seek an appeal.
This post originally appeared on the Byline Investigates website and is reproduced with permission and thanks