Duchess of Sussex –v- Associated Newspapers: Round 1 to The Mail on Sunday

12th May 2020 Media Law

Last week, the media was full of reports that the Duchess of Sussex, Meghan Markle, had lost the first legal battle in her claim against The Mail on Sunday (Associated Newspapers) for misuse of her private information, breach of her data protection rights and infringement of copyright. Many media reports give the strong impression that the Duchess’ claim had essentially been defeated and that there was little hope of success.

However, it is interesting to reflect on what the judgment actually said and what it really means for the Duchess’ claim and whether The Mail on Sunday still have a fight on their hands.

The Claim

By way of background, the Duchess’ claim relates to five articles published by The Mail on Sunday and MailOnline on 10 February 2019.

The articles reported on a letter sent by the Duchess to her father, Mr Markle, in August 2018. The Mail on Sunday published extracts of Megan’s letter, which supposedly details “the true tragedy of Megan’s rift with her father she says has 'broken her heart into a million pieces”.” 

The Mail on Sunday’s application

The court hearing on 1 May 2020 related to a “strike out” application brought by the defendant.

The Mail on Sunday asked the Court to order that Megan could not proceed with some of her complaints as set out in her claim papers, for a variety of reasons. In a nutshell, this was a procedural application which sought to narrow some of the legal arguments in the case.

The Mail on Sunday said that the following allegations in the Duchesss’ legal claim should be struck out:

  1. The publisher “acted dishonestly, and in bad faith” by omitting to publish certain aspects of the letter;”
  2. The publisher “stirred up conflict between the claimant and her father” and;
  3. The publisher had an “obvious agenda of publishing intrusive or offensive stories about her,” examples of which were given.

The Mail argued that the allegations were irrelevant in law, inadequate in substance, and disproportionate in terms of litigation. The Mail said that permitting these complaints to remain in the pleaded case would incorrectly increase costs. They said that the allegations should be removed from the pleaded claim.

The Court’s Decision

Mr Justice Warby found that all three aspects of the claim which had been flagged should be struck out. Mr Justice Warby is a specialist media judge.

The Court can strike out parts of a claimant’s statement of case which it considers disclose no reasonable grounds for bringing or defending a claim, represent an abuse of the court’s process or is likely to obstruct the just disposal of proceedings, or otherwise fail to comply with the relevant litigation rules.

The Judge struck out some of the wording in the Particulars of Claim, and two further passages contained in the Reply, as requested by the Mail. 

Importantly, the Judge’s Judgment focusses on the importance of “proportionality” “so as to confine the case to what is reasonably necessary and proportionate for the purpose of doing justice between these parties.”

Mr Justice Warby stated that he did not consider that “the allegations struck out on that basis go to the “heart” of the case, which at its core concerns the publication of five articles.

He also suggested that those elements struck out could be revived at a later stage in proceedings, if they were put to the court with proper reference to their legal basis. The Judge has effectively alluded to the possibility of the Duchess going away, amending her claim and coming back to Court seeking permission to amend her claim documentation (which could also be achieved by agreement with the Mail). The Duchess’ legal team will obviously consider the Judge’s ruling and decide whether or not to amend her formal pleadings.

What does this mean for the Duchess’ claim?

Undoubtedly, the judgment is a disappointment for Meghan and her legal team. The Duchess has had parts of her claim struck out.

However, Mr Justice Warby himself notes that the elements struck out did not go to the core of the claim. Mr Justice Warby’s decision has effectively narrowed the focus of the legal arguments to come.

The Mail’s application was not unusual in litigation terms and the Court’s decision simply applies existing litigation rules. Of course, in the context of the Duchess’ ongoing battles with the Media, and the Mail in particular, the decision is interesting because it provides an insight into the dispute and the shape of things to come in the case.

The Judgment suggests that the Duchess’ legal team may have excessively embellished her claim, perhaps fuelled by Meghan’s personal feelings towards the British media. Nevertheless, the core legal complaints based in misuse of private information, copyright and breach of Meghan’s data protection rights remain very much live.

Both parties will now be taking stock and gearing up for the next stage of the claim.

In the absence of settlement, the claim will rumble on towards a trial. JMW will be providing legal updates and analysis in relation to the claim as it continues to publicly unravel.

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Jemma Fleetwood is a Trainee Solicitor located in Manchesterin our Trainee Solicitors department

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