The reaction of the Daily Mail today to its court defeat at the hands of the Duchess of Sussex is both dishonest and cynical. In a leading article and also in an opinion piece promoted at the top of the front page it makes a case that it is the victim of injustice because judges have again seen fit to give victory to the Duchess without holding a trial.
As the Mail must know, however, it lost in the Court of Appeal precisely because it was unable to put forward a case which required a trial to take place. That was the issue being tested and that was the issue on which the Mail failed.
Don’t take my word for it. Sir Geoffrey Vos, the presiding judge and one of the most senior judges in the country, summarised the reasons given by the lower court for giving judgment without trial and then stated:
‘Despite prompting from the bench, Associated Newspapers [owners of the Mail on Sunday] has not, even after a two-and-a-half-day hearing, clearly identified the triable issues that falsify this reasoning.’
If the editor of the Mail and his opinion writer Stephen Glover were not able to grasp this simple fact from reading the judgment, they could surely have got the paper’s lawyers to explain it to them. Either way, there can be no excuse for pretending to readers that this was not the case.
Thus already detached from reality, the leading article goes on to claim that the failure to hold a trial meant the paper had been denied the basic right to defend itself.
Four very senior judges have now considered the Mail’s case, such as it was, in very close detail on the basis of documentation so voluminous they were forced to complain about it, and with the benefit of numerous days of live court hearings involving some of the most experienced and expensive barristers around.
There can be no argument: the Mail was afforded every opportunity to defend itself. Its problem, again, was that its lawyers had nothing substantive to say.
The editorial concludes, theatrically, with the claim that the judgment of the Court of Appeal placed privacy ahead of freedom of expression and thus created a ‘dangerous precedent’ likely to ‘muzzle an inquisitive press’.
But as the Mail also knows, the case has created no significant precedent for the simple reason that the judgments are entirely in line with settled English privacy and copyright law.
‘Without hearing the evidence’
If the leading article is striking for its dishonesty and cynicism, however, the opinion article by Stephen Glover outdoes it. ‘In effect,’ Glover writes, ‘they [the appeal court judges] have made up their minds, without hearing the evidence, that Meghan Markle is in the right and the newspaper is in the wrong.’
It would be nice to say that Glover has simply misunderstood, but no, this is obviously deliberate misrepresentation.
Of course they considered the evidence. To repeat, lawyers for the Mail were given every opportunity to put before the judges any shred of evidence they thought might help them, and that included evidence from Thomas Markle and the editor of the paper, Ted Verity. The judges also saw a lengthy statement by the Duchess.
To this Glover would undoubtedly respond: ‘Yes, but the witness evidence was not tested in court, under the questioning of skilled barristers.’ That is an argument that immediately falls flat because both in the High Court and in the Court of Appeal the judges explicitly gave the Mail the fullest benefit of doubt where potential witness evidence was concerned.
To put that another way, if every witness the Mail could produce in court had been able to satisfy the judges of the truth of every single thing they claimed, even under the pressure of hostile questioning, it still would not have been enough to carry the case for the paper.
That, again, is why there was no need for a trial. And it is explained fully in the judgment of the Court of Appeal.
But, protests Glover, what about the ‘new evidence’ supplied by palace PR man Jason Knauf about the Duchess’s indirect contacts with the authors of a book about her and her husband? And what about her suspicious revision of her own account of those contacts and her related apology?
Yet again there is a fundamental problem here of which Glover and his bosses can hardly be unaware. He gives the impression that the Knauf evidence undermined the Duchess’s claim that the letter was a private one, but the Court of Appeal – after reading the evidence and hearing the arguments of lawyers from both sides – found the exact opposite.
‘It is plain from Mr Knauf’s evidence,’ the judgment declares, ‘that [the Duchess] did not want the contents of the letter put into the public domain even if she was prepared for the possibility that it might become public.’ (My emphasis)
Indeed the three judges were unanimous in their view of the quality and quantity of evidence they had seen to support the notion that the Duchess intended her letter to be in the public domain. ‘That evidence, or anything approaching it, was lacking,’ the judgment said. ‘Indeed, it was not pleaded.’ (My italics)
Those last four words are worth dwelling on. The Mail’s own lawyers did not include in their formal legal documents an argument that is central to the case that the paper is now making to the public. In other words, the editorial and the Glover article are today both suggesting something to the public that the paper’s lawyers knew they could not justify saying in court.
If all of the above is shameless misrepresentation of the facts, Glover’s comments on the judges are nothing but a disgraceful farce.
’If she were Meghan Markle of 2, Acacia Avenue, rather than HRH The Duchess of Sussex, would these same judges be so indulgent of her? Or are they influenced by the fact that, although she is estranged from the Royal Family, which she has criticised and impugned, she nonetheless remains part of the royal set-up and therefore must at all costs be kept out of a court of law?’
Please. We are talking here about the Master of the Rolls, Sir Geoffrey Vos, the President of the Queen’s Bench Division, Dame Victoria Sharpe, and a long-serving Court of Appeal judge, Lord Justice Bean.
For the Mail to suggest, on its front page no less, that these three are biased may count as opinion and fair comment, but it is also calling into question the rule of law. Reckless and stupid as this is, it is not new territory for the Mail, and you might have thought the paper had learned its lesson.
At the very least, it shows desperation, for there is not a word in the judgment – no evidence, to put it another way – that could give rise to a suspicion of bias.
And to make it worse, Glover is implying that they are biased in favour of the Duchess because she is royal? This is a contortion of logic that is beyond disentangling, not least because even Glover has to admit (since it is core theology at the Mail) that the Duchess is hardly a member of the royal establishment.
But he is not finished on the point: ‘And might these learned judges be displaying, whether consciously or not, a prejudice against the popular press and in favour of celebrities who jealously guard every aspect of their privacy while striving to obtain the best possible media coverage?’ Preposterous.
Meghan in court
In this morass of nonsense it is almost a relief to come across something that if nothing else is obviously sincere, and it is this, from Glover: ‘I’d say — and I think most reasonable people would — that her misleading testimony calls into question her credibility. If I were a judge, I would want Meghan Markle’s veracity to be tested under cross-examination.’
That says it. Forget everything else; what the Mail wants, what it yearns for independently of the whole tiresome business of proving things in court, is to get the Duchess into the witness box and give her a hard time.
So let’s just spell out why it is not happening. The Mail on Sunday knowingly breached her rights of privacy and copyright – any journalism or law undergraduate could have told them that. The Duchess, as was her right, sued, and at that point it was up to the Mail on Sunday to justify what it had done.
She was not on trial. The paper was, and it chose to defend itself by saying that she never intended her letter to be private. When the High Court reasonably asked ‘Can you prove that?’ the paper could not. When the Court of Appeal asked the same question the answer was the same.
As the case proceeded it became ever clearer – and Glover confirms it today – that what the Mail really wanted was the spectacle of the Duchess in the witness box and the opportunity to bully her there. Now that it has discovered it does not have the power to make that happen, the paper is left frothing at the mouth with incoherent rage.
Brian Cathcart is Professor of Journalism at Kingston University London
This post originally appeared on Byline Investigates and is reproduced with permission and thanks