HRH The Duchess of Sussex v Associated Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Sir Geoffrey Vos,Lord Justice Bean,Dame Victoria Sharp |
| Judgment Date | 02 December 2021 |
| Neutral Citation | [2021] EWCA Civ 1810 |
| Docket Number | Appeal Nos. A3/2021/0609 and A3/2021/0943 |
| Year | 2021 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 1810
Sir Geoffrey Vos, MASTER OF THE ROLLS
Dame Victoria Sharp, PRESIDENT OF THE QUEEN'S BENCH DIVISION
and
Lord Justice Bean
Appeal Nos. A3/2021/0609 and A3/2021/0943
Case No: IL-2019-000110
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY LIST
Mr Justice Warby
Royal Courts of Justice
Strand
London WC2A 2LL
Andrew Caldecott QC, Adrian Speck QC, Alexandra Marzec, Isabel Jamal, and Gervase de Wilde (instructed by Reynolds Porter Chamberlain LLP) appeared on behalf of the Defendant/Appellant
Ian Mill QC, Justin Rushbrooke QC, Jane Phillips, and Jessie Bowhill (instructed by Schillings International LLP) appeared on behalf of the Claimant/Respondent
Hearing dates: 9–11 November 2021
Sir Geoffrey Vos, Master of the Rolls:
Introduction
The central question in these appeals is whether the judge (Mr – now Lord — Justice Warby) was right to make orders for summary judgment in favour of the claimant, Meghan, Duchess of Sussex (the Duchess or the claimant) against the publishers of the Mail on Sunday newspaper and the MailOnline, Associated Newspapers Limited (Associated Newspapers or the defendant). Summary judgment was granted in respect of the Duchess's claims for misuse of private information and infringement of copyright. The claims relate to the publication in a number of Mail articles (the Articles) of about half the contents of a 5-page handwritten letter (the Letter) which the Duchess had sent on 27 August 2018 to her father, Mr Thomas Markle (Mr Markle).
The Duchess contended and the judge found that the contents of the Letter were private and concerned personal matters that were not matters of legitimate public interest, and in which she enjoyed a reasonable expectation of privacy. He held that the Articles interfered with that reasonable expectation, and were not a necessary or proportionate means of correcting certain inaccuracies about the Letter contained in an article published on 6 February 2019 in People magazine in the USA (the People Article). Taken as a whole, the disclosures in the Articles were manifestly excessive and, therefore, unlawful, and there was no prospect of a different result being reached after a trial. The interference with freedom of expression which this outcome represented was a necessary and proportionate means of pursuing the legitimate aim of protecting the Duchess's privacy.
In his judgment of 11 February 2021, the judge also held that the Duchess was entitled to summary judgment on the issues of subsistence and infringement of copyright in the Letter, but that the issue remained of whether a Mr Jason Knauf (Mr Knauf), a former member of the Kensington Palace Communications Team, was a co-author. After the judgment, it became clear that Mr Knauf had not co-authored the Letter and claimed no copyright in it, and the judge gave final summary judgment on the copyright claim in a further judgment of 12 May 2021.
The judge approached the application for summary judgment on the basis that Associated Newspapers would be able to make good its pleaded case (except where it was manifestly untenable). As will appear, however, events since the judgment have forced Associated Newspapers to withdraw or amend some aspects of its pleaded case, but, as will also appear, that does not seem to me to affect the outcome of this appeal.
In mounting its appeal, Associated Newspapers relied on a number of supposedly novel features of the facts it alleges, which I can summarise very briefly as follows: (i) The Letter was written by a very high-profile public figure as part of a media strategy to enhance her image. This is one of the allegations which is not now pursued, though it is still alleged that the Duchess thought, at the time that the Letter was prepared with the benefit of comments from Mr Knauf, that it was likely to reach the public domain. (ii) The Letter's contents were unusual in that they included details of communications between the Duchess and Mr Markle, which were in some respects false. (iii) The contents of the Letter were briefed to the prospective publishers of the book Finding Freedom (the Book) written by Omid Scobie and Caroline Durand (the Authors) with the Duchess's cooperation, and to People magazine. (iv) Mr Markle had a history of going to the media, which was what the Letter complained about. (v) The Articles were the continuation of a debate on a matter of public interest, which the Duchess had initiated through the agency of friends. (vi) Much of the true position was peculiarly within the Duchess's own knowledge and could not be ascertained in advance of disclosure and trial.
Associated Newspapers' main points on the privacy case seem to have shifted as the appeal has progressed. Rather than track these developments, I will recite the 6 grounds relating to privacy points on which it was granted permission to appeal, 1 namely (1) the judge failed to make findings on the factors relied on as undermining or diminishing the weight of the Duchess's privacy right, (2) the judge wrongly thought that the Duchess's disclosures of the Letter to People magazine and the Book were relevant only to the issue of public domain, and not to her conduct and ambivalence, (3) the judge failed to recognise that the Duchess's disclosures to People magazine and the Book and her intentions in relation to disclosing the Letter were relevant to the assessment of the Murray factors (taken from Murray v. Express Newspapers plc [2008] EWCA Civ 446, [2009] Ch 481 at [36]) at stage one, (4) the judge gave inadequate weight to the Article 10 rights engaged, and assessed them on an overly restrictive basis, especially in relation to reply to attacks, (5) the judge failed to attach sufficient significance to the prospect that Associated Newspapers' pleaded case would be made good at trial, and (6) the judge wrongly assessed what further evidence was likely to be available at trial.
The main point made by Associated Newspapers is perhaps that the judge failed to realise how the People Article traduced Mr Markle, and did not even mention aspects that entitled him to reply to the attack that it constituted on him. The main elements of that attack were, as Mr Andrew Caldecott QC, leading counsel for Associated Newspapers, put it: Mr Markle cold-shouldered her at [really in the run-up to] the wedding, the most important point of her life, lied about her shutting him out, and gave a cynical and self-interested response ignoring her pleas for reconciliation in a loving letter, all in the teeth of his daughter being always dutiful and supporting him with incredible generosity.
The main legal points in this appeal are that: (i) the judge wrongly stated the test, by suggesting that the defendant had to justify an interference with the claimant's right of privacy, when the proper approach was to balance the competing rights and interferences under articles 8 (article 8) and 10 (article 10) of the European Convention on Human Rights (ECHR) (the appropriate test issue), (ii) the judge adopted a flawed analysis of the factors undermining the Duchess's alleged reasonable expectation of privacy (the reasonable expectation of privacy issue), (iii) the judge was wrong to apply a strict test of necessity and proportionality to Mr Markle's right of reply to the People Article; a much broader approach to the facts was required on authority (the right of reply issue).
As to copyright, Associated Newspapers' two main grounds of appeal are that (i) the judge failed properly to evaluate the interference with article 10, saying that this was not one of the rare cases in which freedom of expression would outweigh copyright in the absence of a fair dealing defence, and (ii) the judge failed properly to evaluate
the fair dealing defence, bearing in mind the limited scope of the copyright in the Letter and the wide scope of the concept of reporting current eventsThe Duchess supported the judge's reasoning, but filed a Respondent's Notice contending that Associated Newspapers' defence, even if relevant to the issues, had no reasonable prospect of success. The Duchess submitted that a trial would be a further intrusive process in a case in which it could already be seen that there could have been no justification for the publication of large tracts of her private Letter. In essence, the Duchess contended that the judge was right to reject Associated Newspapers' primary case that Mr Markle was entitled to put the Letter into the public domain in order to correct the record created by the People Article. The Letter, for the most part, merely reinforced the points made against Mr Markle in the People Article. The judge correctly identified the inaccuracies in the People Article and also correctly held that it was not necessary or proportionate for Mr Markle to publish “long and sensational articles revealing and commenting on extensive extracts from the Letter, without first approaching [the Duchess]”.
Both sides sought to adduce new evidence before us. The most important parts of that evidence were perhaps the statement of Mr Knauf promulgated by Associated Newspapers exhibiting certain texts passing between him and the claimant and Prince Harry, Duke of Sussex (the Duke) and the statement of the Duchess herself in response. We agreed to look at all the new evidence de bene esse, leaving the decision as to whether to admit it over until these judgments were delivered. In the result, there was little oral argument based upon the new evidence, since it revolved around the drafting of the letter and what the Duchess knew about discussions between the Kensington Palace Communications...
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