HRH The Duchess of Sussex v Associated Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Warby |
| Judgment Date | 12 May 2021 |
| Neutral Citation | [2021] EWHC 1245 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: IL-2019-000110 |
| Date | 12 May 2021 |
[2021] EWHC 1245 (Ch)
Lord Justice Warby
sitting as a Judge of the High Court
Case No: IL-2019-000110
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BUSINESS AND PROPERTY COURTS
INTELLECTUAL PROPERTY LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Ian Mill QC, Justin Rushbrooke QC, Jane Phillips, and Jessie Bowhill (instructed by Schillings International LLP) for the Claimant
Andrew Caldecott QC, Alexandra Marzec, and Isabel Jamal (instructed by Reynolds Porter Chamberlain LLP) for the Defendant
Hearing date: 5 May 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is my eighth judgment in this case, in which the Duchess of Sussex sues the owners of the Mail on Sunday and MailOnline for publishing substantial extracts from a private letter she wrote to her father (“the Letter”).
The claims are for misuse of her private information, breach of her data protection rights, and infringement of her copyright. The details of the case are explained in previous judgments, most fully in the one I handed down on 11 February 2021, granting the claimant's application for summary judgment on the issue of liability for misuse of private information and on the issues of subsistence and infringement of copyright ( [2021] EWHC 273 (Ch), “the Summary Judgment”).
Since then, I have delivered two further judgments, one dealing with matters consequential on the grant of summary judgment ( [2021] EWHC 510 (Ch), “the Consequentials Judgment”), and the second on matters of detail relating to remedies ( [2021] EWHC 669 (Ch), “the Remedies Judgment”).
I have now heard further argument, at a hearing to fix directions for the remaining stages of the case. I have ordered that summary judgment be entered in favour of the claimant on all issues of liability for copyright infringement. I have made a number of further orders, mainly consequential on that decision. And I have given directions for the steps to be taken in preparation for the account of profits to which the claimant is entitled. This judgment explains what I have done and why.
A final summary judgment on copyright infringement
The copyright claim became a claim for infringement of copyright in a draft of the Letter created on the claimant's phone (“the Electronic Draft”). The claimant's case was, and is, that she was the sole author of the Electronic Draft, and the sole owner of copyright. The defendant disputed the subsistence and the claimant's ownership of copyright in the work and argued, in the alternative, that it had defences of fair dealing and/or public interest. I found that the defendant had no real prospect of success on any of those points. I held that the claimant was bound to prove at trial that she was an author of the Electronic Draft, who owned copyright in that work, and that her copyright had been infringed. The defences had no real prospect of success, and there was no other compelling reason for a trial of any of these issues.
I was narrowly persuaded, however, that I could not rule out the possibility that the claimant might not be the sole author of the work. Relying on information from an unidentified source and a letter dated 21 December 2020 from Addleshaw Goddard LLP, solicitors for four members of the Kensington Palace Communications Team (the so-called “Palace Four”), the defendant suggested that Jason Knauf, of that team, may have been involved in the creation of the Electronic Draft in such a way that he or the Crown might own a share in any copyright that subsisted, or a separate copyright in some part of the Electronic Draft.
I viewed this as a shadowy case and could not see any real prospect that the court would find Mr Knauf's contribution to be more than modest, but I could not say it was fanciful. So, I directed a trial of two issues: (1) whether the claimant was the sole author or whether the involvement of Mr Knauf made him a co-author; and (2) if the latter, the impact on the extent of the infringement of which the claimant could complain, and the remedies available (together, “the Ownership Issues”).
To ensure that everyone who might be entitled to a remedy in respect of the alleged infringement had an opportunity to appear before the court, I directed the defendant to serve a formal statement of its case as to ownership on each person it maintained might be an owner of any copyright in the Electronic Draft, notifying that person of their right to apply to be joined as a claimant or defendant to this action.
On 9 March 2021, the defendant served a statement of its case, contending that, “by virtue of Jason Knauf's involvement such as to make him an author”, the Crown and Mr Knauf were or might be the owner of copyright or copyrights generated by the process by which the text of the Electronic Draft was arrived at. By letter dated 6 April 2021, Addleshaw Goddard responded, on behalf of Mr Knauf. The letter endorsed the account set out in the claimant's Re-Amended Reply. The solicitors stated that Mr Knauf did not claim to own any copyright in the Electronic Draft; it had never been his belief that he was the author or a joint author of the work, nor had he ever suggested as much to anybody. They said that, having taken Leading Counsel's advice, Mr Knauf did not consider that he was an author of the Electronic Draft, or that he owned any copyright in that work. He had made only a very minor suggestion on the text, namely that a reference to Mr Markle's ill-health be included. This advice was accepted, but Mr Knauf did not suggest any specific wording. In conclusion,
“Mr Knauf did not draft, and has never claimed to have drafted, any parts of the Electronic Draft or the Letter and would never have asserted copyright over any of their content. In our client's view, it was the Duchess's letter alone.”
Mr Knauf therefore had no wish to be joined.
By letter dated 9 April 2021, it was confirmed by Farrer & Co that the Crown made no claim to copyright either. The solicitors were acting for the Keeper of the Privy Purse on behalf of Her Majesty the Queen. They made clear that Mr Knauf was not a servant of the Crown.
By letter dated 12 April 2021, the claimant's solicitors asserted that these letters on behalf of the other putative copyright owners made it clear that the defendant had no real prospect of success on the Ownership Issues. They invited the defendant to consent to an immediate final judgment in the claimant's favour. The defendant took time to respond and, when it did, on 22 April 2021, it made clear that it declined to consent. So, an application notice seeking summary judgment was filed and served by the claimant on 26 April 2021.
By letter dated 27 April 2021, the defendant's solicitors confirmed that, in light of the new information, the defendant no longer pursued its challenge to the claimant's ownership of copyright. The letter did not consent to judgment. The defendant continues to maintain that it was wrong to grant summary judgment at all, and wishes to appeal my decision; but it has accepted that final judgment on the copyright claim was “the logical conclusion” of the Summary Judgment and the new information from Addleshaw Goddard.
Mr Knauf's position, as stated by Addleshaw Goddard, is unequivocal and definitive, not uncertain or provisional. It is buttressed by expert legal advice. The defendant has not advanced any reasoned basis for supposing that a different conclusion might be arrived at after a trial. The defendant's pleaded case is reduced to a speculative hypothesis, founded on hearsay from an unknown source, which lacks corroboration and is contradicted by both the key individuals. Mr Mill QC submits, on the claimant's behalf, that it is fanciful to suppose that there could be any other source of information to support that case. In all these circumstances, I find that there is no longer any realistic prospect that the claimant would fail to prove her full case on the issue of liability at a trial. She would be bound to establish that she was the sole author of, and exclusive owner of copyright in, the Electronic Draft. There is no reason, compelling or otherwise, for this issue to go to trial. I have therefore now directed that an unqualified summary judgment on liability for copyright infringement be entered for the claimant.
Injunctions and other consequential orders
The defendant's initial, limited success on the issue of summary judgment in copyright had an impact on remedies.
A “discursive” order
One of the consequential orders I made was a limited order under PD63 para 26.2 requiring the defendant to publish in the newspaper, and on MailOnline, a short report of my decision that the defendant had infringed the claimant's copyright: see the Consequentials Judgment [67–70] and the Remedies Judgment [10–18]. The wording I arrived at reflected the fact that, at the time, the Ownership Issues remained outstanding. I stayed that order to give the defendant an opportunity to seek permission to appeal from the Court of Appeal. That application is still pending. So, there has not yet been any publication of the report. Now that unqualified summary judgment has been entered, it is appropriate to vary the wording of the Notice and Online Notice. I have done so by deleting reference to a trial of the issue of whether the claimant “is the exclusive owner of copyright in all parts of...
To continue reading
Request your trial