The Duchess of Sussex’s privacy case against the publisher of the Mail on Sunday over the publication of a letter to her estranged father has begun at High Court.
The publication of the letter which was “intrinsically private, personal and sensitive” letter sent by Meghan Markle to her 76-year-old father, Thomas Markle, was a “plain and serious invasion” of privacy, her lawyers have argued.
Meghan, 39, is suing the publisher of The Mail on Sunday and MailOnline over a series of five articles which published extracts of the handwritten letter she sent to her father in August 2018.
She is seeking damages for alleged misuse of private information and breach of the Data Protection Act over the articles, published in February 2019.
Her lawyers argue that Associated Newspapers Limited (ANL) has “no prospect” of defending her claim for misuse of private information and alleged breach of copyright over the publication of the letter.
The two-day remote High Court hearing began on Tuesday with the duchess’ lawyers asking Mr Justice Warby to grant “summary judgement” in relation to her privacy and copyright claims. This is a legal step which would see those parts of the case resolved without a trial.
Justin Rushbrooke QC, representing Meghan, told the court the letter was a “heartfelt plea from an anguished daughter to her father” which was sent to Mr Markle “at his home in Mexico via a trusted contact… to reduce the risk of interception”.
The “contents and character of the letter were intrinsically private, personal and sensitive in nature”, he said, adding that Meghan therefore “had a reasonable expectation of privacy in respect of the contents of the letter”.
Mr Rushbrooke added in written submissions: “It is as good an example as one could find of a letter that any person of ordinary sensibilities would not want to be disclosed to third parties, let alone in a mass media publication, in a sensational context and to serve the commercial purposes of the newspaper.”
He also said that even if ANL was justified in publishing parts of the letter to Mr Markle, “far more” extracts from the letter were published “than could have been justified in the public interest”, and the Mail’s “use of the letter was and is manifestly disproportionate”.
Ian Mill QC, also representing the duchess, argued that “she and she alone” created a draft of the letter to Mr Markle “which she then transcribed by hand” and that it was “an original literary work in which copyright subsists and is owned by the claimant”.
He asked the court to “grasp the nettle and decide the issue at this hearing”.
But Antony White QC, representing ANL, said in written submissions that the case was “wholly unsuitable for summary judgement”.
He said there were a number of “significant factual matters” that remained uncertain and should be “investigated at trial when the court will have the full picture in terms of disclosure and evidence”
“This is particularly so when the claimant’s case in respect of certain important factual issues has shifted, (including) in relation to the circumstances in which the letter was written and the extent to which she had disclosed information about the letter with a view to publication,” added Mr White.
“There are now on the record a number of inconsistent statements made by her that she will need to explain.”
He argued that, if the court assessed whether Meghan had a reasonable expectation of privacy in relation to the letter, “it would be likely to come to the conclusion that the claimant has not shown a reasonable expectation of privacy” and that “on the contrary, she expected or intended its contents to enter the public domain”.
The full trial of Meghan’s claim was due to be heard at the High Court this month, but it was adjourned last year until autumn 2021 for a “confidential” reason.
Mr Justice Warby is expected to reserve his judgement to a later date.
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