The Duchess of Sussex’s letter to her father – published by the Mail on Sunday – was “written with public consumption in mind as a possibility”, the Court of Appeal has heard.
Lawyers for publisher Associated Newspapers told senior judges they wanted to rely on new evidence from Jason Knauf, who was communications secretary to the Duke and Duchess of Sussex, which suggests Meghan suspected her father might disclose the letter to the media.
Associated Newspapers Limited (ANL) began its appeal on Tuesday against a High Court judge’s decision that the publication of the letter was “unlawful”.
Meghan won her case on a summary judgment earlier this year after suing ANL over a series of articles the paper printed quoting parts of a letter she had sent to her father, Thomas Markle, in August 2018.
She said the five articles, published in print and online in February 2019, misused her private information, infringed her copyright and breached the Data Protection Act.
However, at the outset of ANL’s challenge, due to be heard over three days, Andrew Caldecott QC, representing the publisher, said Mr Knauf’s evidence casts doubt on the basis of the judge’s ruling.
He told the court: “We read the judgment as implicitly accepting that the letter was crafted as an intimate communication for her father’s eyes only.
“The fundamental point turns out to be false on the new evidence.
“The letter was crafted specifically with the potential of public consumption in mind because the claimant appreciated Mr Markle might disclose it to the media.”
Mr Caldecott added that Meghan “made no effort to correct” an article in People magazine in the US, which featured an interview with five friends of the Duchess of Sussex, adding that Mr Markle had “considered the article to be a serious attack on him”.
The barrister also said the case should have gone to a trial rather than be settled by a ruling from Justice Warby.
He told the court her claim was “diminished and outweighed” by her father’s right to reply after “false or misleading” allegations about him were published in People.
He said: “The claimant’s letter and the People article both make allegations against Mr Markle of cruelly cold-shouldering the claimant in the pre-wedding period… The article, or its gist, was reported worldwide.”
The barrister added: “We say there was a difference between what Mr Markle said and what he was presented as saying.”
He concluded: “The defendant submits it has a strongly arguable case that, by the time of the publication of the articles, the claimant no longer had a reasonable expectation of privacy of the text of the letter.”
Meghan’s legal team are opposing the appeal and argue that the judge reached the right conclusions on the evidence before him.
They also object to the introduction of Mr Knauf’s new evidence and say that, if the court accepts his statement, Meghan will also wish to put forward new evidence.
In February, Lord Justice Warby said ANL’s publication of Meghan’s letter to her father was “manifestly excessive and hence unlawful”.
He said: “It was, in short, a personal and private letter. The majority of what was published was about the claimant’s own behaviour, her feelings of anguish about her father’s behaviour, as she saw it, and the resulting rift between them.
“These are inherently private and personal matters.”
In a statement after that ruling, Meghan said she was grateful that Associated Newspapers and The Mail on Sunday had been “held to account for their illegal and dehumanising practices”.
“For these outlets, it’s a game. For me and so many others, it’s real life, real relationships, and very real sadness. The damage they have done and continue to do runs deep,” she said.
The publisher’s appeal is being heard by Sir Geoffrey Vos, Dame Victoria Sharp and Lord Justice Bean.
The hearing will continue tomorrow and Thursday, and the judges are expected to give their ruling at a later date.
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