INTELLECTUAL PROPERTY LIST

BETWEEN:
HRH THE DUCHESS OF SUSSEX
Claimant
and
ASSOCIATED NEWSPAPERS LIMITED
Defendant
_____________________________________________________
CLAIMANT’S SKELETON ARGUMENT
_____________________________________________________
A.

INTRODUCTORY MATTERS
1.

This is the Claimant’s skeleton argument for the hearing of her application for (i) summary
judgment pursuant to CPR r.24.2 on the defence to her claim for misuse of private
information and/or copyright infringement; and/or (ii) an order that the pleaded defence to
her claim for misuse of private information be struck out pursuant to CPR r.3.4(2)(a) and/or
under the inherent jurisdiction of the Court; and (iii) consequential orders.
2.

The Application Notice

1
is at
[B/1/B1-5]
and the draft Order at
[B/2/B6-12]
. The
Application is supported by the Fourth and Seventh Witness Statements of Jenny Afia (at
[B/3/B13-25]
and
[B/5/B84-89]
respectively)
3.

In response to the Application the Defendant has served the following evidence:
3.1.

Sixth Witness Statement of Keith Mathieson

[B/6/B90-97]
;
3.2.

First Witness Statement of Edward Verity

[B/8/B117-123]
;
3.3.

First Witness Statement of Thomas Markle

[B/10/B131-134].
4.

There are five articles complained of in total

[A/3/A22-73]
, all of which were published on
10 February 2019.

Copies of Articles 1-5 showing the words complained of marked in blue

in respect of the claim for misuse of private information and marked in red in respect of the

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claim for copyright infringement, are at
[A/8/A191-278].
5.

In total, the Articles reproduce 29 different extracts from the Claimant’s handwritten Letter,
which are quoted 88 times in total. Articles 1 to 4 purport to comment on the Claimant’s
private relationship with her father and their estrangement from each other – deeply
personal matters and a source of considerable distress to her. Article 5 uses so-called
1
This was amended following the service of the Defendant’s Re-Re-Amended Defence (
“RRAD”
)
[A/5/A85-
141]
and Response to the Claimant’s Requests for Further Information of the Re-Amended Defence (
“RAD”
)
and RRAD
[A/21/A400-404]
.

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‘handwriting experts’ to analyse her handwriting, one of whom makes derogatory
comments about aspects of her character.
6.

Further relevant facts are referred to where appropriate below. Capitalised terms used in
this skeleton are intended to refer to defined terms in the Statements of Case.
B.

SUMMARY OF THE CLAIMANT’S CASE

The claim of misuse of private information
7.

This case raises a straightforward but important question which does not appear to have
received the attention of domestic courts since the establishment of the modern law of
privacy. The reason for this may well be that the answer is so obvious that no litigant has
thought it worth contesting.
8.

The question is this: does the writer of a letter that is self-evidently private and sensitive
have the right to decide whether, when, how and to what extent to publish its contents? Or
does a newspaper have the right to publish those contents, without the prior consent or even
knowledge of the writer?
9.

The Claimant submits that in any civilised society whose courts give due protection to the
right of privacy enshrined in Article 8 of the European Convention on Human Rights
(
“ECHR”
) there can, as a matter of principle, be only one answer to this question: the
writer of the letter has the right to control its dissemination and no one else, be it the State
or a newspaper publisher. This is an important aspect of the personal autonomy and dignity
which the law of privacy must protect. Any other proposition would be a deeply disturbing
one.
10.

It is of course accepted that there may be cases of disclosure of private correspondence

where genuine questions arise as to the existence or strength of that right, or the existence
or strength of competing rights (typically those arising under Article 10 ECHR), such that
a trial is needed in order to establish whether or not the claimant’s right of privacy has been
infringed (the quantum of damages being of course a separate matter).
11.

But this case is not one of them. Every citizen, whatever their profile or position, has the

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right under English law to respect for their
private
and
family life
, their home and their
correspondence
. The Defendant’s decision to publish, without the Claimant’s consent or
even prior knowledge, very substantial extracts from her letter to her father to its millions
of readers worldwide was a plain and serious invasion of her rights of privacy in that letter.
12.

It was in fact a direct assault on, not just one, but three of the four strands of privacy rights
protected under Article 8, all of which coalesced in the Letter: her private life, her family
life and her correspondence.
13.

Much though the Defendant has sought to obscure this simple point in its Defence, and to
mislead the public as to the nature and relative strength of the Claimant’s and its own
pleaded cases, a proper analysis compels only one conclusion: that (i) at the time of its
publications the Claimant had a reasonable expectation of privacy in respect of the contents
of the letter, and (ii) this being the case, and applying the requisite balancing exercise, the
Defendant has failed to discharge the burden which rests upon it to advance a viable
justification for interfering with that right.
14.

This conclusion can and should be reached at the summary judgment/strike-out stage, by
reference to the parties’ pleaded cases, the key documents and the facts which are either
undisputed or not reasonably capable of dispute. The pleaded defence is prolix, diffuse and
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lacking in clarity. It seeks to raise a proliferation of issues regarding matters such as an
interview with a friend of the Claimant which appeared in ‘People’ magazine shortly before
the Defendant’s articles, and the Claimant’s alleged cooperation with the authors of
Finding
Freedom
- an unauthorised biography of the Claimant and her husband which was
published nearly one and a half years
after
those articles. The Defendant has (no doubt with
an eye to the public gallery) massively overstated the relevance of those publications, for
reasons which will be explained.
15.

Worse still, it has misleadingly claimed that the Claimant has made significant admissions
regarding her alleged cooperation with the authors when she has not, and has placed on the
record a number of allegations about
Finding Freedom

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 which are plainly false and were
pleaded speculatively, such as that she and her husband met with the authors and had
discussions with them for the purposes of the Book (they did no such thing); or that she and
her friends embarked on a ‘media strategy’ to get personal information about her into the
public domain because the Book’s publication date was postponed (it was not postponed
until much later). It has deliberately misdescribed passages in the Book in order to bolster
its case that the Claimant was the source for them. Most shocking of all, as regards the only
passage in the Book that actually mentions the Letter, it has claimed that this information
can only have come from the Claimant, when it knows full well that the authors must have
simply lifted it from the Defendant’s own articles of one and a half years earlier (as
confirmed by one of the authors himself).
16.

Whatever view the Court takes of the factual viability of the pleaded defence at this interim
stage, it is, in truth, a case of smoke and mirrors, an attempt to distract attention away from
the only facts which matter, in particular that this is a complaint about the unauthorised
publication, for commercial gain, of the contents of a quintessentially private letter,
contents that the Claimant had done nothing to bring into the public domain. Even the
Defendant does not contend to the contrary, because it cannot.
The claim for copyright infringement

17.

The Electronic Draft/the Letter is an original literary work in which copyright subsists and
is owned by the Claimant. The Claimant’s case is that the Articles (individually and
collectively) reproduce a substantial part of the Electronic Draft and/or the Letter such that
the Defendant has, without the licence of the Claimant:
17.1.

Copied a substantial part of the Electronic Draft and/or the Letter contrary to section 17
of the Copyright Designs and Patents Act 1988 (
“CDPA”
) (Re-Amended Particulars of
Claim
(“RAPOC”)
¶15.1
[A/2/A11]
);
17.2.

Issued copies of a substantial part of the Electronic Draft and/or the Letter to the public,
by supplying copies of its newspapers containing the Articles to the public contrary to
section 18 CDPA (RAPOC ¶15.2
[A/2/A12]
);
17.3.

Communicated copies of a substantial part of the Electronic Draft and/or the Letter to the
public by making Articles 3, 4 and 5 available to the public on the internet contrary to
section 20 CDPA (RAPOC ¶15.3
[A/2/A12]
);
17.4.

Authorised the aforesaid acts;

17.5.

Retained copies of the Letter (and therefore the Electronic Draft) in its possession with
knowledge and/or reason to believe the same are infringing copies contrary to section 23
CDPA (RAPOC ¶¶16,17

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[A/2/A12]
).
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18.

The Defendant challenges subsistence of copyright on the basis of an alleged lack of

originality. The challenge has two prongs, each of which is equally flawed (as further
explained below):
18.1.

The Letter and the Electronic Draft purport to recite “

pre-existing facts
” both past and
present, including the Claimant’s views of her father and his conduct. The Defendant
alleges that “
as recited in words those pre-existing facts and admonishment are neither
the Claimant’s own intellectual creation nor original
” (RRAD ¶28
[A/5/A130]
); and
18.2.

The Letter was copied from the Electronic Draft.

19.

The Defendant also challenges ownership of copyright, on the basis of what has been
revealed to be a wholly unsupported and speculative allegation
2
that the Claimant involved
the Kensington Palace Communications team (including Jason Knauf) in the writing of the
Electronic Draft and the Letter (see ¶¶28, 28A and 28B of the RRAD and the Defendant’s
Response dated 11 November 2020 to the Claimant’s Requests for Further Information of
the RAD and of the RRAD on page 4). The Defendant has been unable to particularise this
allegation by identifying which parts of the Electronic Draft are said to have been created
by someone other than the Claimant or who is said to have been the author of such parts.
Not only is this allegation wholly without merit, but it is legally insignificant – the Claimant
would in any event be entitled to relief as an author of the Electronic Draft and/or the Letter.
20.

As to infringement, the Defendant admits supplying copies of its newspapers containing

the Articles to the public, making the Articles available on the internet and retaining copies
of the Letter in its possession, but denies that the Articles comprise a copy of a substantial
part of the Electronic Draft and/or the Letter. The challenge to substantiality is on the same
basis as the challenge to subsistence - the Defendant denies that the Articles comprise a
copy of a substantial part of the Electronic Draft and/or the Letter “
in the sense with which
copyright law is concerned, namely the reproduction of a substantial part of that which is

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the author’s own intellectual creation
” (RRAD ¶34
[A/5/A132]
).
21.

In addition to the above challenges the Defendant relies upon further defences, as follows:
21.1.

That the acts of copyright infringement were fair dealing for the purpose of reporting
current events (RRAD ¶37
[A/5/A133]
);
21.2.

That the Defendant’s Article 10 rights outweigh the enforcement of the Claimant’s
copyright (RRAD ¶36
[A/5/A132-133]
);
21.3.

That the Defendant’s use of the Letter was in the public interest (RRAD ¶38)
[A/5/A133]
.
22.

For the reasons set out further below, none of these challenges has any prospect of success,
reasonable or otherwise.
C.

STRIKE-OUT/SUMMARY JUDGMENT: RELEVANT LEGAL PRINCIPLES

Summary Disposal o
f
a Claim
23.

The overriding objective of the CPR is to enable the court to deal with cases justly and at
proportionate cost. A number of factors which are relevant for this purpose are set out in
CPR r.1.1(2). CPR r.1.4(1) imposes a duty on the court to further the overriding objective
2
See further below at paragraphs 144-150

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by actively managing cases, which includes (at r.1.4(2)(c)) “
deciding promptly which issues

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need full investigation and trial and accordingly disposing summarily of the others
”.
24.

The CPR provides two principal ways in which a claim may be disposed of summarily,
namely striking out under Part 3 and summary judgment under Part 24.
Strike Out
25.

CPR r.3.4(2)(a) gives the court power to strike out a statement of case, or part of one “
if it
appears to the court…that the statement of case discloses no reasonable grounds for
bringing or defending the claim
”. Practice Direction 3A provides some additional guidance
as to when it might be appropriate to strike out: “
1.6 A defence may fall within rule
3.4(2)(a) where: (1) it consists of a bare denial or otherwise sets out no coherent statement
of facts, or (2) the facts it sets out, while coherent, would not even if true amount in law to
a defence to the claim
”. See also paragraph 3.4.2 of the White Book.
26.

An application under CPR r.3.4(2)(a) “

calls for analysis of the statement of case, without
reference to evidence. The primary facts alleged are assumed to be true. The Court should
not be deterred from deciding a point of law; if it has all the necessary materials it should
“grasp the nettle”
”:
HRH Duchess of Sussex v ANL
[2020] EWHC 1058 at [33(2)]. See
also [34].
27.

Finally, for a recent example of a defence for misuse of private information being struck
out pursuant to r.3.4(2)(a) see
BVG v LAR
[2020] EWHC 931 (QB) where Nicol J. held at
[23] that: “…there
are no reasonable grounds for the Defendant to dispute that the
Claimant had a reasonable expectation of privacy in the information which he wishes to
protect
.” See also [26(vi)] in relation to summary judgment.
Summary Judgment
28.

CPR r.24.1 provides that the court may give summary judgment against a claimant or
defendant on the whole of a claim or on a particular issue if-
(a)

It considers that-
(i)

That claimant has no real prospect of succeeding on the claim or issue; or

(ii)

That defendant has no real prospect of successfully defending the claim or issue;
(b)

There is no other compelling reason why the case or issue should be disposed of at a
trial (emphasis added).

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29.

The relevant legal principles were summarised by Lewison J in

Easyair Ltd v Opal Telecom
Ltd
[2009] EWHC 339 (Ch) at [15] and approved by the Court of Appeal in
AC Ward & Sons
Ltd v Catlin (Five) Ltd
[2009] EWCA Civ 1098 (at [24]). They will be well known to the
Court and therefore are not set out in full here.
30.

It has become common on summary judgment applications for a respondent to adduce

evidence in an attempt to show there is a dispute of fact which requires the matter to be
resolved at trial, and this application is no exception. However, there is a distinction
between evidence that is available, and the possibility of some evidence becoming available
that may have some impact upon the issues in dispute. In the latter case, there must be
reasonable grounds for believing that a fuller investigation into the facts of the case would
add to or alter the evidence available to a trial judge and so affect the outcome of the
case:
Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd
[2007]
FSR 63, cited by Lewison J in
Easyair
at [15(vi)]
.

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31.

Moreover, even where on the evidence there is a dispute of fact, this does not mean that the
case may not be suitable for summary disposal. In
ED&F Man Liquid Products Ltd v Patel
[2003] EWCA Civ 472 Potter LJ stated at [10]:
“It is certainly the case that under both rules, where there are significant
differences between the parties so far as factual issues are concerned, the court is
in no position to conduct a mini-trial: see per Lord Woolf MR in Swain v
Hillman
[2001] 1 All ER 91
at 95 in relation to CPR 24. However, that does not
mean that the court has to accept without analysis everything said by a party in his
statements before the court. In some cases it may be clear that there is no real
substance in factual assertions made, particularly if contradicted by contemporary

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documents. If so, issues which are dependent upon those factual assertions may be
susceptible of disposal at an early stage so as to save the cost and delay of trying
an issue the outcome of which is inevitable: see the note at 24.2.3 in Civil
Procedure (Autumn 2002) Vol 1 p.467 and Three Rivers DC v Bank of England
(No.3) [2001] UKHL/16, [2001] 2 All ER 513 per Lord Hope of Craighead at
paragraph [95]”
(emphasis added).
D.

PRIVACY: RELEVANT LEGAL PRINCIPLES

32.

The overall legal framework for the law of privacy has been comprehensively summarized
by Warby J. in the recent case of
Sicri v Associated Newspapers
[2020] EWHC 3541 at
[61]-[74].

Accordingly, only further specific principles relevant to the present case are
referred to below.

Personal correspondence
33.

The Court has long protected the sanctity of personal correspondence: see eg.
Toulson and
Phipps on Confidentiality (4
th
Ed.)
at [1.004], [1.012] and [1.045]. Perhaps because it is so
obvious, now singled out as it is for protection in Article 8, there is little reported authority.
34.

Indeed, the protection given by Article 8 to ‘correspondence’ goes even further, because it
is specifically not required even to be private to qualify for protection: see
Niemietz v.
Germany

(Application no. 13710/88)

at [32] where it is stated: “

In this connection, it is
sufficient to note that that provision does not use, as it does for the word "life", any adjective
to qualify the word "correspondence". And, indeed, the Court has already held that, in the
context of correspondence in the form of telephone calls, no such qualification is to be
made…. Again, in a number of cases relating to correspondence with a lawyer …the Court
did not even advert to the possibility that Article 8 (art. 8) might be inapplicable on the
ground that the correspondence was of a professional nature.
”
35.

Gatley on Libel and Slander

(12
th
Ed.) states at Footnote 41 to [22.5]: “
One’s
correspondence with others, whether conducted by means of letter, telephone conversation,
email, SMS text messaging, or other forms of digital communication, is presumptively
private in nature

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” citing (amongst others)
Maccaba v Lichtenstein
[2005] EMLR 6 where
Gray J stated at [4]: “
as a general rule correspondence between A and B on private matters
such as their feelings for one another would be a prime candidate for protection.
”
36.

Further, in
HRH Prince of Wales v ANL
[2008] Ch 57 Lord Phillips said at [36]: “
If,
however, one strips out the fact of breach of a confidential relationship, and assumes that
a copy of the Journal had been brought to the Newspaper by someone who had found it

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dropped in the street, we consider that its form and content would clearly have constituted
it private information entitled to the protection of article 8(1) as qualified by article 8(2).
”
37.

In
Haig v Aitken
[2001] Ch 110, Rattee J, held that a bankrupt's personal correspondence,
being of a nature peculiarly personal to him and his life as a human being, was excluded
from his estate, stating at [118D]: “…
it is inconceivable that Parliament envisaged, by
passing

the Act, that the effect of bankruptcy should be that a bankrupt's personal
correspondence should be available for publication to the world at large at the behest of
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the trustee in bankruptcy. In my opinion, the concept of such a gross invasion of privacy is
repugnant…. a bankrupt's estate does not include the bankrupt's personal correspondence
which, like a right of action for damages for libel, is of a nature peculiarly personal to him
and his life as a human being. That is so, in

my judgment, even in the case of a famous

bankrupt, whose correspondence

as a result may be worth a considerable sum to the

media…I reach this conclusion apart from the provisions of article 8 of

the Convention,
but I am confirmed in that conclusion by the fact that it seems to me at least strongly
arguable that the construction of the Act contended for by the trustee in bankruptcy would
indeed constitute an infringement of article 8.
”
38.

Finally, in
Jones v Tsige
108 O.R. (3d) 241 2012 ONCA 32
,
the Ontario Court of Appeal,
in explaining why the tort of intrusion upon seclusion should be recognised, and after
referring to Article 8 ECHR amongst other human rights instruments, stated at [72]: “
A
claim for intrusion upon seclusion will arise only for deliberate and significant invasions
of personal privacy…. it is only intrusions into matters such as one's financial or health
records, sexual practises
[sic]
and orientation, employment, diary or private
correspondence that, viewed objectively on the reasonable person standard, can be
described as highly offensive
”.
Conduct/zone of privacy
39.

Just because a person has revealed or discussed some information falling within a particular
‘zone’ of their lives it does not follow that they have a greatly reduced expectation of
privacy in relation to any other information that falls within that zone. “
If information is
my private property, it is for me to decide how much of it should be published. The “zone”
argument completely undermines that reasonable expectation of privacy
.”
McKennitt v Ash
(CA
) [2008] QB 73, per Buxton LJ at [55].
40.

This has recently been re-affirmed in

Dupate v Latvia
No. 18068/11 at [64]-[66]: “
The
Court has already held that the mere fact of having cooperated with the press on previous
occasions or an alleged or real previous tolerance or accommodation with regard to
articles touching on private life cannot serve as an argument for depriving the person of
the right to privacy (see Couderc and Hachette Filipacchi Associés, § 130, and Lillo-
Stenberg and Sæther, § 38, both cited above). A fortiori, a failure to challenge a less
intrusive article cannot be relied on to justify more invasive articles in future (see Egeland
and Hanseid, cited above, §§ 61-62). Furthermore, even when persons have made public

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some private information about themselves, the manner in which it is subsequently
portrayed has to be justified in the circumstances of the case (see Tammer, cited above, §
66). The person having given interviews does not dispense the State from its positive
obligation to protect the person’s privacy, as seeking to avail of media to share information
in a setting the person has selected cannot, in principle, be held against him or
her….Accordingly, the Court considers that no elements of the applicant’s prior conduct
referred to in the domestic proceedings could have been invoked in order to limit the
protection of her right to privacy.
”

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41.

Further, in
Burrell v Clifford
[2017] 2 EMLR 2
,
the fact that the claimant had put the private
information in his letter to the defendant into the public domain himself subsequent to the
(then unknown) misuse by the defendant (the contents of which as stated at [116] were
“
relatively low-key and undramatic
”), was held to be no bar to his claim for misuse of
private information: see [153]-[156]. Cf
AAA v Associated Newspapers Ltd
[2013] EWCA
Civ 554, where the information alleged to be private was of a qualitatively different type,
as was the conduct of the Claimant relied upon.
42.

And in
Axel Springer

AG v Germany
No. 39954/08 where, in dealing with prior conduct, it
was stated at [92]: “The conduct of the person concerned prior to publication of the report
or the fact that the photo and the related information have already appeared in an earlier
publication are also factors to be taken into consideration (see
Hachette Filipacchi Associés
(ICI PARIS)
, cited above at [52] and [53] and
Sapan
, cited above at [34]). However, the
mere fact of having cooperated with the press on previous occasions cannot serve as an
argument for depriving the party concerned of all protection against publication of the
report or photo at issue (see
Egeland and Hanseid

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, cited above at [62]).”
Intention to publish, control and consent
43.

In the confidentiality arena, as stated in

Toulson & Phipps
at [4-027]-[4-035]: “
it is
accordingly now settled that an intention to publish is not inconsistent with maintaining a
right of confidentiality until the intended publication
”.
44.

Even more so in privacy where the focus is on control of one’s own private information:
see Lord Hoffman in
Campbell v MGN
[2004] 2 AC 457 at [51]: “
Instead of the cause of
action being based upon the duty of good faith applicable to confidential personal
information and trade secrets alike, it focuses upon the protection of human autonomy and
dignity – the right to control the dissemination of information about one's private life and
the right to the esteem and respect of other people.”

45.

As stated in
Re Roddy (a child) (identification: restriction on publication)
[2004] EMLR 8
at [36]: “
The personal autonomy protected by Art.8 embraces the right to decide who is to
be within the ‘‘inner circle’’, the right to decide whether that which is private should
remain private or whether it should be shared with others. Article 8 thus embraces both the
right to maintain one’s privacy and, if this is what one prefers, not merely the right to waive
that privacy but also the right to share what would otherwise be private with others or,
indeed, with the world at large.
”
46.

Re Roddy
was applied by Eady J. (upheld in the Court of Appeal) in
McKennitt v
Ash
[2006] EMLR 10 at [77]: “
The question is to what extent it is legitimate to protect one
person’s privacy when another connected person has a right of privacy and also,
correspondingly, a right to waive it in the exercise of freedom of expression: see, e.g. Roddy
(A Child) (Identification: Restriction on Publication), ….This is why it is so important for
me to have in mind the recent pronouncements in Von Hannover v Germany to the effect
that protection of privacy will extend to relations with other persons and embrace a social
dimension. It must follow, in broad terms, that if a person wishes to reveal publicly
information about aspects of his or her relations with other people, which would attract
the prima facie protection of privacy rights, any such revelation should be crafted, so far
as possible, to protect the other person’s privacy. This is important particularly, of course,
in the context of ‘‘kiss and tell’’ stories. It does not follow, because one can reveal one’s
own private life, that one can also expose confidential matters in respect of which others
are entitled to protection if their consent is not forthcoming.
”

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9
47.

As to consent, this arose starkly in the case of

Ali v Channel 5
[2018] EMLR 17 where
Arnold J treated it [at 171] as separate to the issue of whether the Claimants had a
reasonable expectation of privacy. At [178], Arnold J. stated that even if the Claimant had
given consent to an interview being filmed, he had unequivocally withdrawn that consent
prior to the broadcast of the programme, thus making clear the importance of establishing
the ongoing nature of consent.
Public interest

48.

In
HRH The Prince of Wales v Associated Newspapers
[2008] Ch 57 at

first instance

Blackburne J. stated at [118] that: “…

it is important not to overlook the fact that what may
be in the public interest to know and thus for the media to publicise in exercise of their
freedom of speech is not to be confused with what is interesting to the public and therefore
in a newspaper’s commercial interest to publish. This is particularly so in the case of
someone like the claimant whose every thought and action is, in some quarters at least, a
matter of endless fascination.
”
49.

Further, in
Campbell v MGN
[2004] 2 AC 457 Lord Hoffman stated at [57] that the fact
that Campbell
“had a long and symbiotic relationship with the media...would not in itself
justify publication. A person may attract or even seek publicity about some aspects of his
or her life without creating any public interest in the publication of personal information
about other matters” while Lord Hope said at [120] that “it is not enough to deprive Miss
Campbell of her right to privacy that she is a celebrity and that her private life is
newsworthy
”.
50.

In
Dupate v Latvia
, it was stated at [51] that: “
Articles aimed solely at satisfying the
curiosity of a particular readership regarding the details of a person’s private life, however

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well known that person might be, cannot be deemed to contribute to any debate of general
interest to society (see Couderc and Hachette Filipacchi Associés, cited above, §§ 89 and
100, see also Standard Verlags GmbH v. Austria (no. 2), no. 21277/05 § 52, 4 June 2009.)
”
E.

PRIVACY: THE UNDISPUTED AND INDISPUTABLE FACTS

51.

Before addressing the Defendant’s case on liability for misuse of private information, it is
important for the Court to bear in mind the following key facts and matters relating to the
Letter, which are either undisputed or not capable of sensible dispute:
51.1.

The Claimant married HRH Prince Henry of Wales (as he then was, hereinafter ‘Prince
Harry’) on 19 May 2018.
51.2.

In the week leading up to the wedding, the Claimant’s father, Mr Thomas Markle, was
exposed by the Mail on Sunday for (to use the Defendant’s own description at
[A/3/A22]
)
“
colluding with the paparazzi to stage a series of lucrative photo opportunities
”. He
apologised to the Claimant by text dated 14 May 2018
[A/13/332]
, saying that he would
announce that he would not be “
walking [her] down the aisle
”. Mr Markle was admitted
to hospital shortly afterwards for emergency heart surgery. He did not attend the wedding

but released statements which were reported in the press.

51.3.

Mr Markle continued to talk to the media, giving what the Mail on Sunday described as
“
a series of damaging interviews in which he has spoken of his dismay at being cast adrift
by his daughter and the Royal Family
”
[A/3/A23].
These included an interview with

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‘Good Morning Britain’ in June 2018, referred to at
[A/3/A25, column 1]

16 of 87
 and an
interview with the Defendant which was presented as a full-scale attack on the Claimant
on 28 July 2018
[B/15A/B293.g-u]
.
51.4.

On about 27 August 2018, the Claimant sent a hand-written letter to Mr Markle. It was
five pages long and ran to approximately 1,250 words. It was sent to him at his home in
Mexico via a trusted contact (who was also known to her father) rather than being sent
from her UK address, to reduce the risk of interception
[A/14/A351]
.
51.5.

The contents and character of the Letter were intrinsically private, personal and sensitive
in nature: it concerned the Claimant’s relationship with her father; her constant love for
and desire to protect him; the financial support she had given him (contrary to his public
claim that she had not); her concerns over the state of his health; the recent breakdown
of that relationship; her feelings about that breakdown and the very painful impact of his
conduct upon her, in particular his dealings with the press; and her sense of betrayal over
his denial of working with the paparazzi. Its last paragraph began with a heartfelt plea
for him to stop talking to the press: “
If you love me, as you tell the press you do, please
stop. Please allow us to live our lives in peace…
”.
51.6.

Mr Markle sent a letter in response to the Claimant’s Letter in September 2018. It ended
with the following, as reported by the Defendant
[A/3/A25]
:“
I wish we could get
together and take a photo for the whole world to see. If you and Harry don’t like it? Fake
it for one photo and maybe some of the press will shut up!
”
51.7.

On Wednesday 6 February 2019, nearly 6 months after the Claimant sent her Letter, the
US magazine ‘People’ published an 8-page article about the Claimant under the headline
‘The Truth About Meghan’ which included an interview with (amongst others) a
“longtime friend” of hers. This interview made a brief and passing reference to the Letter
as follows
[A/6/A148]
:
‘
… After the wedding she wrote him a letter. She’s like, “Dad, I’m so heartbroken. I
love you. I have one father. Please stop victimizing me through the media so we can
repair our relationship”
.’
The interview continued:
‘
Because every time her team has to come to her and fact-check something [he has said],
it’s an arrow to the heart. He writes her a really long letter in return, and he closes it by
requesting a photo op with her. And she feels like, “That’s the opposite of what I’m
saying. I’m telling you I don’t want to communicate through the media, and you’re asking
me to communicate through the media. Did you hear anything I said?” It’s almost like
they’re ships passing…
’.
51.8.

17 of 87
The following week, in a series of five articles published in the Mail on Sunday and
online at www.dailymail.co.uk on 9 February 2019, the Defendant published very
substantial extracts from the Letter. The extent of the text reproduced by the Defendant
can be seen from the type-written copy at
[A/9/A282.a-A282.b
], where the passages
which appear in the Articles are highlighted in bold and yellow. (The words complained
of in respect of each of the three causes of action herein are marked up on the copies of
the Articles appearing at Appendix A to the Claimant’s RFI Response dated 15 May 2020
[A/8/A190]
).

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51.9.

The Defendant published these extracts from the Letter without the Claimant’s consent,
and without even her prior knowledge or awareness. It took no steps to alert her that it
was proposing to publish the Letter or any part of it.
51.10.

At the time that the Defendant published the extracts from the Letter that it did, none
of the contents of the Letter had been brought into the public domain, whether by the
Claimant or anyone else.
51.11.

On 11 August 2020, nearly one and a half years after the publication of the Defendant’s
Articles, the biography of the Claimant and her husband,
Finding Freedom
(the Book)
was published. The Book contained a very brief reference to, and extracts from, the Letter
on pp.232-3
[B/16/B373.a-B373.b
]. The two extracts from the Letter constituted a very
small fraction of those that the Defendant had already published. Moreover, the first
extract was published in exactly the same, edited-down form as had appeared in the
Article at
[A/3/A23]
- contrast the full version of the text at
[A/9/A282.a]
. The author
Omid Scobie has confirmed in a witness statement dated 16 September 2020 (that which
is in any event obvious), that the extracts from the Letter that appeared in the Book were
taken from the Defendant’s Article (see ¶16 at
[B/13/B142
]).

18 of 87
51.12.

Mr Scobie has confirmed in a letter addressed to the parties which he has asked to be
drawn to the Court’s attention
[B/18/B416.b-B416.c
] that at no time were he or his fellow
author provided with a copy of the Letter, or the text of the Letter, or any extracts from
the text of the Letter. He has also confirmed in his witness statement that neither he nor
his co-author met with or interviewed the Claimant or her husband for the Book.
F. PRIVACY: THE DEFENDANT’S PLEADED CASE

52.

It is against that background that it is necessary to consider what the Defendant does and
does not allege in its pleaded case and its evidence in opposition to the application.
53.

The Defendant’s case is, to say the least, difficult to pin down. It is prolix, diffuse, and
lacking in clarity and particularity. The lack of particularity was not significantly remedied
by the Defendant’s Response to a Request for Further Information dated 9 September 2020
[A/19/A382]
, whose answers (and lack of answers) revealed the almost entirely speculative
basis for the pleaded allegations.
54.

Most strikingly, for all that the Defendant does allege:

54.1.

It is no part of the Defendant’s case that the Letter, or any part of it, was in the public
domain prior to its own publications, still less that the Claimant was responsible for
bringing it into the public domain;
54.2.

Nor is it part of the Defendant’s case that the Claimant, whether directly or indirectly,
supplied the Letter or the contents of the Letter to either People magazine or the authors
of the Book.
55.

Reduced to its essentials, the defence boils down to the following propositions:
55.1.

The Claimant had no reasonable expectation of privacy (hereinafter referred to as ‘REP’)

in relation to the contents
3
of the Letter at the time she sent it to her father (RRAD ¶13,
13.1-13.7)
[A/5/A90]
;
3

The RRAD makes numerous references to the

existence
of the Letter, but, as the Claimant has made clear, her
complaint is about the publication of its
contents
. See para 141 - 147.

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12
55.2.

Even if she had had a REP at the time that she sent it, she lost that REP by the time of
the Defendant’s publications. This is because:
“…
following the
disclosure
of
information about the Letter
to the authors and/or the
publication
of the People interview and
reports
of the People interview, neither the
existence nor the contents of the Letter were confidential, nor could the Claimant have
any reasonable expectation of privacy in relation to the Letter
” (RRAD ¶13.8.13,
emphasis added
[A/5/A102]
);
55.3.

Further or alternatively, any interference with the Claimant’s rights of privacy was
justified to protect the rights of freedom of expression of others under Article 10 ECHR
4
,
namely the Defendant, its readers and Mr Thomas Markle (RRAD ¶15
[A/5/A103]
);
55.4.

In particular, the Defendant contends that any REP on the part of the Claimant had been
“
compromised
by the Claimant’s conduct
” (RRAD ¶15.2A
[A/5/A104]
). The conduct
relied upon is almost entirely the same as that relied on in support of the case that she
lost any REP, but with the addition of three categories:
55.4.1.

Information in the Book relating to “

the nature of the Claimant’s relationship
and communications with her father
” (RRAD ¶15.2B
[A/5/A104]
);

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55.4.2.

The “
account of the Letter
” given at pp.232-233 of the Book (RRAD ¶15.2C
[A/5/A104]
); and
55.4.3.

49 passages in the Book which are said to support the averment that “
the
Claimant does not object to details of her own, or other people’s personal
relationships and correspondence being publicly disclosed, provided that such
disclosure is couched in terms that are favourable and flattering to her
” (RRAD
¶15.2D
[A/5/A105-110]
)
55.5.

Further, in support of its Article 10/public interest defence the Defendant contends that
“
the account given by the Claimant’s friends to People magazine concerning the
Claimant’s dealings with her father and the contents of the Letter and her father’s letter
in response was a one-sided and/or misleading picture of those matters
”, and that
accordingly it was “
necessary, proper and in the public interest to publish the true and
full story concerning the Letter and the response to it, including Mr Markle’s account of
events
” (RRAD ¶¶15.3, 15.14
[A/5/A110, A115]
).
56.

As regards the alleged disclosure of information about the Letter to the authors of the Book
(¶13.8.13, referred to above), it should also be noted that, at its highest, the Defendant’s
case is directed at “
information about the Letter and its contents
” (or “
a description of
the contents of the letter
”)
not
the contents themselves. This can be seen from a careful
reading of RRAD ¶¶13.8A.6, 13.8.13, 15.2A and Answer 21 to the Claimant’s RFI
[A/19A385]
. Significantly, this also corresponds with the high point of Mr Mathieson’s 6
th

witness statement in opposition to the application, which contains evidence of a double-

hearsay statement from an unidentified source to the effect that a friend of the Claimant’s
had given to the authors “
the same information as had later appeared in People magazine
”,
and no more than this (¶8 at
[B/6/B93
]).

21 of 87
 The Defendant also relies on Article 11 of the Charter of Fundamental Rights of the EU but it is not clear
how
this right is alleged to add anything to the Article 10 ECHR right

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G. PRIVACY: SUBMISSIONS

Stage (1) – did the Claimant have a reasonable expectation of privacy in respect of the
contents of the Letter?

57.

Applying the ‘objective assessment’ mandated by the authorities (

Sicri
, above, citing
ZXC

at [43]), and bearing in mind the relatively low threshold that has to be crossed for a
claimant’s Article 8 rights to be engaged, this is not a question that need detain the Court
for long.
58.

All correspondence is protected by Article 8, not just private correspondence (

Niemitz
,
above) but, at the risk of stating a truism, private correspondence is towards the top end of
the spectrum of things which a person of ordinary sensibilities would wish to keep private.
59.

The reasons are obvious: the way an individual expresses him or herself in a personal letter
can be revealing, both psychologically and emotionally. The act of writing a personal letter
to a close family member, lover or friend inevitably puts the writer in an unguarded and
potentially vulnerable position because the words chosen and the way in which the writer
chooses to express him or herself are
for
the recipient and no one else: the letter is unique
to the relationship with the recipient and reveals more about it than any other form of
communication. The more care and thought that goes into the writing of the letter, the more
this is the case. That is no doubt why (certainly until the arrival of the age of email) people
have kept letters from friends, family and other loved ones throughout their lives.
60.

Indeed, in terms of their capacity to threaten the human autonomy and dignity which it is
the function of the law of privacy to protect, the contents of private (handwritten) letters
have much in common with photographs and video footage. Just as a picture is ‘worth a
thousand words’ not just because it adds to the impact of what the words convey, but also

22 of 87
because it adds to the information given in those words
5
, so the contents of a private letter
say far more about the writer than a mere description of that letter.
61.

These features are all present in the case of the Letter to a very high degree. It is a heartfelt
plea from an anguished daughter to her father (the word ‘pain’ or ‘painful’ appears no fewer
than five times), begging him to stop talking to the press. 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. Still less would such a person wish a
handwritten letter to be subjected by the newspaper to a derogatory handwriting analysis
by so-called ‘experts’, a point not diminished in the present case, where the writer had
trained in calligraphy and practised it professionally to support her early acting career.
6
As
a well-known figure her expectation of privacy in relation to such matters was if anything
all the greater, and certainly no less than an ‘ordinary’ citizen: as the Court of Appeal said
in
Prince of Wales
at [70]: “
In respect of such persons the public takes an interest in
information about them that is relatively trivial. For this reason public disclosure of such
information can be particularly intrusive
”.
5
Baroness Hale in
Campbell
at [155]
6

The Defendant was aware of this, having published two articles about it in 2018
[B/15A/B293.a-f]
&
[B/15A/B293.v-y]
. It is not known whether this relevant fact was explained to the ‘leading handwriting expert’
who made derogatory remarks in Article 5, labelling her inter alia a “showman and narcissist”.

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62.

Indeed, the Defendant’s decision to publish the contents of the Letter was a triple-barrelled
invasion of her Article 8 rights: not just of her right to respect for her
correspondence
, but

23 of 87
also her
private
and
family
life, both of which were strongly engaged. It does not end there:
the IPSO Code, to which the Court must have particular regard under section 12(4)(b) of
the Human Rights Act 1998 (“
HRA
”), specifically requires editors to respect not just
private and family life but also
correspondence
; and to “justify intrusions into any
individual’s private life
without consent
” (Clause 2, ‘Privacy’, with emphasis added).
63.

The Court does not have to take the Claimant’s word for this: it need look no further than
the Defendant’s own Articles. The wording of the headline at
[A/3/A22
] was apposite:
“
Revealed: the letter showing true tragedy of Meghan’s rift with a father she says has
‘broken her heart into a million pieces
’”. That very Article described the letter as
“private”, and rightly so: “
But Mr Markle says Meghan’s decision to reveal the
private

letter in the pages of the magazine left him with no choice but to go public
” (ibid., emphasis
added); see also the words on [A24]: “
I never would have … [shown the Letter to anyone]
had it not been for the events of last week
”. The Defendant’s shift from that position is
cynical and unattractive.
64.

In particular, the inference that the Defendant seeks to invite at RRAD ¶13.7
[A/5/A91-93]

to the effect that the Letter was “

written and sent by the Claimant with a view to it being
read by third parties and/or disclosed to the public, alternatively knowing that the same
was very likely
” is mere assertion which flies in the face of (a) the intrinsically private and
sensitive nature of the Letter’s contents (for all the reasons given above), (b) the fact that
the Letter had not previously been published by the Claimant (or anyone else), (c) the loss
of control that was necessarily entailed by the Defendant’s decision to publish those
contents in the sensational way that it did, without consent or prior notice, and (d) the
Claimant’s stated objection to the continuing publication of the Letter from its website
[B/19/B416.h]
. We return to loss of control as an aspect of the right of privacy below.
65.

The same point can be made about the (wholly speculative, and equally untrue) inference
at ¶13.7.5 that the Claimant was “
considering using the Letter as part of a media strategy
to improve or enhance her image
”. These contentions ring hollow when advanced by a

24 of 87
newspaper that deliberately refrained from asking the Claimant for consent to publish
substantial extracts from the Letter, or even giving advance notice of its intention to do so.
No trial is needed to know what the Claimant’s response would have been. Finally, it is
misconceived as a matter of law to contend (RRAD ¶13.2-13.4
[A/5/A90-91]
) that Mr
Markle was free as the recipient of the Letter to publish its contents, for the reason given
by Eady J in
McKennitt v Ash
[2006] EMLR 10 at [77].
66.

In conclusion, and applying the objective assessment on the basis of all relevant
circumstances, there is no real prospect of the Defendant establishing that the Claimant had
no REP in relation to the contents of the Letter; and the Defendant’s contentions to the
contrary are utterly fanciful. It may be noted that in the
Prince of Wales
case the Court was
satisfied to the summary judgment standard that the Prince’s Article 8 rights were engaged
in relation to the contents of the Hong Kong journal even though the journal was “
not of a
highly personal or private nature, in the sense that it does not deal with matters of an
intimate or medical nature or about members of his family
…” (first instance judgment at
[114]) and even though it had been circulated to perhaps 75 friends and associates of the
Prince. The present case is
a fortiori
.
67.

It is also
a fortiori
from
Burrell v Clifford
, where a claim succeeded in relation to a letter
sent by the claimant to Mr Clifford whose contents were “
relatively saccharine
”, which
largely comprised the kind of information that “
many individuals might be inclined to share

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quite freely – not only with family, friends, and neighbours, but also with a wider circle of
acquaintances…
” [155], and notwithstanding that some 8 or 9 years before he had even
discovered Mr Clifford’s misuse he had placed all the information contained in the letter in
the public domain as part of a lucrative publishing deal [153].

25 of 87
The interview with People
68.

As noted above, the Defendant’s case in relation to the People interview rests on the
proposition that as a result of the mere fact of publication of the People interview and
reports of that interview (a) the contents of the Letter ceased to be confidential, and (b) any
REP that the Claimant may have had in relation to the contents of the Letter was lost.
69.

This is an extraordinarily bold submission, and one that requires no trial to dispense with:
the Court is in as good a position now to assess its merits as it would be at a trial.
70.

Although of course it would not be enough in any event to defeat a privacy claim to say
that the contents of the Letter ceased to be confidential, contention (a) has no more merit
than (b). It is obvious that no part of the contents of the Letter was revealed in the People
interview, and that the brief references to the Letter and to Mr Markle’s response that appear
at
[A/6/A148]
and
[A/6/A173-174]
(set out under the ‘Undisputed Facts’ at 52.7 above),
whether considered on their own or in context, could not possibly operate to deprive the
contents of the Letter of their quality of confidentiality (in the sense of not being readily
available to the public), let alone of the privacy rights that inhere in them, even if the
Claimant had authorised these references (which she did not).
71.

In this context
Burrell v Clifford
is again instructive. Any assessment of whether or not a
REP has been lost has to take account not just the nature of the information which a
claimant is alleged to have brought into the public domain but the form in which it appears.
But in any event (and
a fortiori
from
Burrell
) it is plain beyond any sensible dispute that
the information about the Letter that was contained in the People interview was minimal in
nature and extent.
72.

Section 12(4)(a)(i) HRA is also relevant. Where the proceedings ‘relate to material which
the respondent claims, or which appears to the court, to be journalistic, literary or artistic
material’, the court is required to have regard to whether ‘the material has, or is about to,
become available to the public’. In this case ‘the material’ is the contents of the Letter. It
cannot plausibly be said that
that
material had become available to the public prior to the
publication of the Articles., Clause 2 of the IPSO Code, with its reference to account being
taken of ‘the complainant’s own public disclosures of information’, cannot detract from
that fact.
The Book
73.

The alternative basis on which the Defendant contends that the Claimant lost her REP in
relation to the contents of the Letter is that the mere fact of her alleged disclosure of
“
information about the Letter
” (RRAD ¶13.8.13

26 of 87
[A/5/A102]
) to the authors of the Book
through her friends (now said to be ‘Friend A’ in Mr Mathieson’s 6
th
witness statement)
was sufficient to destroy any such REP. The Court will bear in mind that on the Defendant’s
case nearly two years elapsed between this alleged disclosure and the publication of the
Book, and that what appeared in the Book was but a small fraction of what the Defendant
itself had already published.
74.

This is an even bolder submission than that relating to the People interview, and one that is
plainly contrary to well-established authority.

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75.

The first curiosity that it raises is one of timing. The Court will note the distinction between
People, where the
publication
is said to have destroyed the REP, and the Book, where the
Defendant is constrained to say that the shutter must come down at an even earlier stage,
prior to the publication of the Book, and that it is the mere
disclosure
to the authors which
destroys the REP. No principled basis for that distinction is apparent from the pleaded case.
76.

Even assuming, for present purposes, that what was disclosed to the authors would have
been sufficient, if and when published, to destroy such a REP, this proposition drives a
coach and horses through well-established authority: the right of privacy includes the right
to control one’s private information (see eg
Campbell
per Lord Hoffmann,
Roddy
and
McKennitt
, all cited above).
77.

A necessary incident of that right is the right to decide

whether
,
when
,
to whom
and

27 of 87
how
to
disclose such information. But it is a necessary implication of the Defendant’s argument
that the only right the Claimant had in relation to the Letter was the all-or-nothing right to
decide whether or not to disclose its contents to the public. On the Defendant’s case, the
moment that “
information about the Letter and its contents
” (or “
a description of the
contents of the letter
”, depending on which of the Defendant’s loose formulations one
chooses) was disclosed to the authors with her authority, at a stroke the Claimant lost any
right to decide:
77.1.

When to disclose the Letter to the public;

77.2.

By whom the contents of the Letter should be published;

77.3.

How much of the Letter should be disclosed; and

77.4.

How, in what manner and in what context the Letter should be published.
78.

That is a proposition which only has to be stated for its absurdity to be seen. It is a chilling
thought (except perhaps to his Fleet Street competitors) that the editor of a national
newspaper should assert the right to pre-empt the publication of an individual’s private
information not just by that individual him/herself but by any third party to whom the
individual may have given their consent to publication. This assertion also denies the right
of an individual to withdraw their consent in relation to any given publication – again,
contrary to well-established authority (
Ali
, above).
79.

The point made above in relation to section 12(4)(a)(i) HRA and Clause 2 of the IPSO
Code applies with even greater force in the context of the Book: on any view ‘the material’
had not been made public, nor was it about to become available to the public; and the IPSO
Code refers to ‘the complainant’s own
public
disclosures of information’ (emphasis
added).
80.

In any event, for the reasons already given in relation to the People interview, the mere
disclosure of the information about the Letter that appeared in People could not operate in
such a way as to destroy the Claimant’s REP in relation to its contents.
81.

As already noted, the Defendant does not assert in the RRAD that the Claimant provided
or authorised the provision of the Letter or the text of the Letter to the authors. Nor could
it properly do so, in the light of the contents of Mr Scobie’s letter at
[B/18/B416.b-B416.c]
.
82.

Just as with the Defendant’s case in relation to the People interview, the Court is in as good

28 of 87
a position now as it would be at a trial to assess the viability of the Defendant’s case in
relation to the Book. It does not need to resolve the factual issue as to what information
(beyond the very limited and anodyne information set out in ¶9B.5 of the Re-Amended

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Reply
[A/12/A296]
) was disclosed to the authors with her authority. The argument based
on the Book is legally unsound and should be struck out.

Stage (2) – has the Defendant put forward an arguable case that the Claimant’s
Article 8 rights should give way to the alleged competing rights?

83.

Once it is established that the Article 8 right is engaged, it is for the Defendant to justify
the interference with that right at Stage 2 of the enquiry: (
Sicri
, above, citing
ZXC
at [46]).
Thus, the burden falls squarely upon the Defendant to advance a pleaded case that is legally
viable, coherent, clear and properly particularised. A case which fails to do so should be
struck out (applying, by parity of reasoning, the pleading obligation which rests on
claimants as set out in
Candy v Holyoake

[
2017] EWHC 373 per Warby J at [49]).

84.

By way of preliminary observation, the following principles are especially pertinent:

84.1.

Stage 2 is an objective process, to be conducted without regard to the publisher’s state of

mind;
84.2.

In order to comply with the IPSO Code editors invoking the public interest would have
to demonstrate that they reasonably believed publication would serve, and be
proportionate to, the public interest and explain how they reached that decision
at the
time
(‘PUBLIC INTEREST’ ¶4, cited in
Sicri
at [73], emphasis added). It follows that

29 of 87
matters that they are unaware of at the time could play no part in that thought process;
a
fortiori
with matters that had not even occurred;
84.3.

The balancing exercise requires a close focus to be brought on the comparative

importance of the rights being claimed in the particular case. Here, that means an
examination of the alleged justification for interfering with the Claimant’s rights to
privacy in respect of
the contents of the Letter
and for interfering with those rights
in the
way that it did
. It is that particular interference that has to be justified, and it is axiomatic
that the interference must be proportionate;
84.4.

The decisive factor in Stage 2 is an assessment of the extent to which

publication of the
relevant information
makes to a debate of general interest (
Sicri
[65(3)], citing
ZXC
).
85.

As noted above, the pleaded case essentially comprises two different strands:
85.1.

The contention that the Claimant’s REP was ‘compromised’ by virtue of her ‘conduct’;
and
85.2.

The Article 10 rights of the Defendant, its readers and Mr Markle, in particular the right
to correct the allegedly “one-sided and/or misleading account given in the People
interview and to respond to an attack on him in that interview” (RRAD ¶15.16
[A/5/A115]
).
85.3.

Dealing with the alleged conduct of the Claimant first, this appears to be an attempt to
shoehorn the facts of the present case into the very different context of the decision in
AAA v Associated Newspapers Ltd
(above). In that case the conduct of the Claimant’s
mother relied on was an interview subsequent to the article complained of which revealed
an ambivalence on her part towards secrecy over the identity of her infant child’s father.
The information in play was that single piece of information, which was of a qualitatively
different kind to that in the present case.
86.

Insofar as the Defendant relies on matters already addressed in relation to Stage 1, we do

not repeat the submissions made above. As regards the matters pleaded under RRAD
¶15.2B-15.2D:

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86.1.

None of the matters pleaded in ¶15.2B is capable of reducing the Claimant’s REP in
relation to the contents of the Letter: even if the matters identified in the Book (and the
Court will be invited to read the relevant pages rather than the tendentious
characterisation in ¶15.2B
[A/5/A104]
) had been disclosed to the authors by the Claimant
or with her authority, they could not possibly justify the publication of the contents of
the Letter as a matter of law.
86.2.

As to ¶15.2C, the Court can see for itself by reading pp.232-233 of the Book
[B/16/B373.a-B373.b]
that this contains a grossly exaggerated description of what the
Book actually said about the Letter. It could not possibly operate to reduce the Claimant’s
REP in relation to the contents of the Letter. This is quite apart from the fact that the
“
account
” of the Letter given in the Book is self-evidently based on the Defendant’s own
Articles. Indeed it is shocking that the Defendant’s pleaded case includes the assertion
(Answer 33 of its RFI Response dated 9 September 2020
[A/19/A387
]) that the
“
information about Thomas Markle and the Letter could only have come … from the
Claimant
”.
86.3.

¶15.2D
[A/5/A105-110]
is misconceived on numerous bases, both factual and legal. A
little time will need to be spent at the hearing to show just how misleading and
unsustainable is the Defendant’s reliance on the 49 passages in the Book, both as regards
what the passages in the Book actually said, and insofar as they are alleged to prove
cooperation by the Claimant with the authors. Suffice it to say for present purposes that
this paragraph perpetrates the ‘zone of privacy’ fallacy that was exposed as such in
McKennitt
(CA).
87.

As regards the alleged need to correct a one-sided and/or misleading account given in the
People interview, on analysis, the case simply does not work. On a proper interpretation of
public interest, the only possible justification for publishing the contents of the Letter would
be in order to correct what People said about the Letter. The contents of the Letter cannot
be relied upon more generally to rebut the suggestion that “
Mr Markle has made false
claims about his dealings with his daughter and that he was entirely at fault in not attending
the royal wedding and for the estrangement between himself and the Claimant”

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: [¶13.8.6
of the RRAD]
[A/5/A99]
, not least because it is the Defendant’s own case that the Letter
was “
false in key respects
” and gave “
a one-sided and/or misleading account of the
Claimant’s personal relationship with her father
” [¶15.13 of RRAD
[A/5/A114-115]
]. That
this is so is apparent from the Article itself: see the bullet points under each published
extract of the Letter, in which Mr Markle says why the Letter is wrong:
[A/3/A23]
.
88.

If, as is submitted, any public interest in this case should be confined to correcting the
allegedly false impression given by People of the Letter, then all the Court needs to do is
compare what The People article says about the Letter with the Letter itself.
89.

All that People says about the Letter, quoting an anonymous source, is “
Dad, I’m so
heartbroken. I love you. I have one father. Please stop victimizing me through the media
so we can repair our relationship
”.
90.

As the whole Letter shows, it does, in fact, state that the Claimant:
90.1.

Is heartbroken (“
your actions have broken my heart into a million pieces
”)
90.2.

Has only ever “

loved, protected and defended
” him
90.3.

Is upset about her father’s (continuing) “

onslaught of media interviews
”
90.4.

Wants her father to stop talking to the press

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19
90.5.

Wants “
nothing other than peace, and I wish the same for you
” (last sentence)
- see Schedule A, attached, where the quote from People interview and the relevant extracts
from the Letter and Mr Markle’s response are set out, with added highlighting.
91.

Accordingly, it can be seen that, although it was inaccurate in some respects, particularly
insofar as it misdescribed the Claimant’s purpose in writing the Letter (“
so we can repair
our relationship
”), the brief reference in the People interview was certainly not so
inaccurate or misleading that there was a public interest in publishing its contents to correct
the People account – let alone in a way that was edited down to suit the Defendant’s agenda,
so that (for example) it omitted the last sentence (quoted above). Further, there is no doubt
that the reference to Mr Markle’s letter in response was accurate and fair: he had requested
a “photo op” with his daughter, as was clear from the extract from the letter quoted by the
Defendant.
92.

Further, and in any event, the entire journalistic exercise was flawed by the Defendant’s
inexcusable failure, contrary to standards of responsible journalism, to contact the Claimant
and put to her that the brief reference to the Letter in the People interview was misleading.
Had it done so, the Claimant would have been able to confirm that what the “
longtime
friend
” had said about the Letter
was
inaccurate in the relevant respects. The basis (spurious
as it was) for publishing the contents of the Letter would then have fallen away.
93.

Yet further, on any view the Defendant published far more by way of extracts from the
Letter than could have been justified in the public interest. Its use of the Letter was and is
manifestly disproportionate, all the more so given (a) the way in which the Defendant
subjected the Letter to the derogatory treatment that it did in Article 5, and (b) the
Defendant’s ongoing publication of it in defiance of the Claimant’s request to stop doing
so
[B/19/416.h]
.
94.

In truth, the present case is

a fortiori
from
Campbell
: just as the use of the photographs and
details of her rehabilitation in that case was disproportionate and unlawful, so here with the
publication of the contents of the Letter: the points made in so-called defence of Mr Markle,
assuming for the purposes of argument they were fair points, could and should have been
made just as well without reference to the contents.
95.

In conclusion, there was no ‘debate of general interest’ to which the publication of the

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substantial extracts from the Letter made any contribution. As with Stage 1, there is no
factual issue which needs to go to trial: it is clear that the balancing exercise must come
down in favour of the Claimant, no less so than was the case in the
Prince of Wales
case.
96.

Accordingly, the Court should grant summary judgment on liability in the privacy claim
and strike out the relevant parts of the Defence.

H. THE COPYRIGHT CLAIM: GENERAL PRINCIPLES OF LAW

97.

It can be seen from paragraphs 18-21 above that the Defendant challenges the claim for
copyright infringement on the basis of denials of subsistence and ownership of copyright,
as well as by raising a number of specific further defences. These various challenges fall
to be considered under the framework provided by the CDPA, and the following provisions
in particular.
Subsistence
98.

Sections 1 and 3 of the CDPA provide as follows:

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‘1. Copyright and copyright works
(1) Copyright is a property right which subsists in accordance with this Part in the
following descriptions of work—
(a) original literary, dramatic, musical or artistic works,
…
(3) Copyright does not subsist in a work unless the requirements of this Part with
respect to qualification for copyright protection are met (see section 153 and the
provisions referred to there).

3. Literary, dramatic and musical works

(1) In this Part—
“literary work” means any work, other than a dramatic or musical work, which is
written, spoken or sung, and accordingly includes—
(a) a table or compilation other than a database,
(b) a computer program;
(c) preparatory design material for a computer program and
(d) a database
(2) Copyright does not subsist in a literary, dramatic or musical work unless and
until it is recorded, in writing or otherwise; and references in this Part to the time
at which such a work is made are to the time at which it is so recorded.’
99.

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Thus, the Electronic Draft and the Letter are both literary works for the purposes of the
CDPA.
100.

In order for copyright to subsist in a literary work, the work must (i) be original, (ii) be
recorded in writing or otherwise and (iii) qualify for protection. In this case there is no
dispute over (ii) or (iii).
7
However, the Defendant alleges that neither the Electronic Work
nor the Letter is ‘original’.
101.

In order to satisfy the requirement of originality, the work must be the author’s own
intellectual creation: Case C-5/08
Infopaq International A/S v Danske Dagblades
Forening
[2009] ECR I-6569 at [33]-[37]. As explained by Laddie J in
IPC Media v
Highbury
[2004] EWHC 2985 (Ch) at [9]
8
, this does not mean that the copyright work
cannot utilise well known themes and ingredients:
“…
If an author puts sufficient relevant artistic effort into producing a drawing or
other artistic work from known ingredients, it will be protected by copyright.
Monet was, no doubt, not the first artist to paint water lilies, but his paintings of
them were protected by copyright. They would also not have been deprived of
copyright because they were very similar to earlier paintings by him dealing with
the same subject matter.
”
102.

The requirement of originality finds further application in the context of the scope of
protection provided by copyright. Article 9.2 of the TRIPS Agreement provides:
‘Copyright protection shall extend to expressions and not to ideas, procedures,
methods of operation or mathematical concepts as such’.
7
RRAD ¶25 [
A/5/A130]

8
This was a case that concerned artistic works but the principles apply equally to literary works

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103.

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The Courts have repeatedly emphasised that copyright protects only the form of the work,
as opposed to the information or ideas contained within the work. In
Nichols v Universal
Pictures Co 45 F 2
nd
119
(2
nd
Cir. 1930) Judge Learned Hand said (at p.121) (cited with
approval by Laddie J in
IPC Media
at [14]):
“
Upon any work, and especially upon a play, a great number of patterns of
increasing generality will fit equally well, as more and more of the incident is left
out. The last may perhaps be no more than the most general statement of what the
play is about, and at times may consist of only its title; but there is a point in this
series of abstractions where they are no longer protected, since otherwise the
playwright could prevent the use of his ‘ideas’, to which, apart from their
expression, his property is never extended.
”
104.

Thus, the dichotomy between an idea and its expression is relevant both when looking at
whether a work is original, and whether it has been infringed. It is particularly relevant in
cases where Article 10 rights are invoked, as discussed further below.
Ownership
105.

As regards authorship and ownership, the following provisions of the CDPA are relevant:
‘9. Authorship of work.
In this Part “author”, in relation to a work, means the person who creates it…
10. Works of joint authorship.
(1) In this Part a “work of joint authorship” means a work produced by the
collaboration of two or more authors in which the contribution of each author is
not distinct from that of the other author or authors…
11. First ownership of copyright.
(1) The author of a work is the first owner of any copyright in it, subject to the
following provisions.
(2) Where a literary, dramatic, musical or artistic work, or a film, is made by an
employee in the course of his employment, his employer is the first owner of any
copyright in the work subject to any agreement to the contrary.’
106.

Thus, the first owner of the copyright in the Electronic Draft and the Letter is the person
who created it (or, if an employee, his or her employer).
107.

Where a work is the result of the efforts of more than one person, it is a question of fact
and degree whether any one of them has expended sufficient intellectual creativity to be
considered as one of the authors within the meaning of the CDPA. Suggesting general
ideas or giving advice as to the tone of a piece of work would not result in that person
being recognised in law as an author, because such a contribution is not something that is
protected by copyright.
108.

The concept of joint authorship was examined recently by the Court of Appeal in
Martin
v Kogan

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[2019] EWCA Civ 1645 at [31]-[53]
.
9
There are four elements, namely (a)
collaboration
10
, (b) authorship, (c) contribution and (d) non-distinctness of contribution.
Where there is a work of joint authorship, the shares of the two joint authors are not
9
And summarised most recently by Meade J in
Martin v Kogan
[2021] EWHC 24 (Ch) at [37]-[39]
10

When discussing this concept the Court of Appeal emphasised the distinction between mere ideas and their
expression (at [34])

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required to be equal and the Court will need to apportion the ownership according to the
respective overall contributions of each author (see [52]).
109.

Under section 102(1) of the CDPA, where an action for infringement of copyright brought
by the copyright owner relates to an infringement in respect of which they have concurrent
rights of action, the copyright owner may not, without the leave of the court, proceed with
the action unless the other is either joined as a claimant or added as a defendant.
Infringement
110.

The acts that are prohibited by copyright are set out in Chapter II of the CDPA. Section
16 provides (where relevant) as follows:
‘
16 The acts restricted by copyright in a work.
(1) The owner of the copyright in a work has, in accordance with the following
provisions of this Chapter, the exclusive right to do the following acts in the
United Kingdom—
(a) to copy the work (see section 17);
(b) to issue copies of the work to the public (see section 18);
…
(d) to communicate the work to the public (see section 20);

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…
and those acts are referred to in this Part as the “acts restricted by the copyright”.
(2) Copyright in a work is infringed by a person who without the licence of the
copyright owner does, or authorises another to do, any of the acts restricted by
the copyright.
(3) References in this Part to the doing of an act restricted by the copyright in a
work are to the doing of it—
(a) in relation to the work as a whole or any substantial part of it, and
(b) either directly or indirectly;
and it is immaterial whether any intervening acts themselves infringe copyright.
(4) This Chapter has effect subject to—
(a) the provisions of Chapter III (acts permitted in relation to copyright works), and
(b) the provisions of Chapter VII (provisions with respect to copyright licensing).’
111.

Section 23 provides, where relevant:

‘
Secondary infringement: possessing or dealing with infringing copy.
The copyright in a work is infringed by a person who, without the licence of the
copyright owner—
(a)possesses in the course of a business…
an article which is, and which he knows or has reason to believe is, an infringing
copy of the work.’
Permitted Acts
112.

There are a number of circumstances where copying a copyright work will not amount to
infringement. The ones of relevance to this claim are:
112.1.

Where the use complained of amounts to ‘fair dealing’;

112.2.

Where a Defendant’s Article 10 rights displace the protection that would otherwise
be afforded to copyright;
112.3.

Where the use complained of is in the public interest.

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(1)

Fair Dealing
113.

Section 30(2) of the CDPA provides that:

‘Fair dealing with a work (other than a photograph) for the purpose of reporting

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current events does not infringe any copyright in the work provided that (subject to
subsection (3)
11
) it is accompanied by a sufficient acknowledgement’.
114.

Hence, a Defendant must satisfy three limbs:

114.1.

First, that his use falls within the identified purpose (i.e. reporting current events);
114.2.

Second, that his use was accompanied by a sufficient acknowledgment (as to which
there is no dispute in this case); and
114.3.

Third, that his use amounts to ‘fair dealing’.

115.

When considering whether a Defendant’s use falls within an identified purpose, the test is
objective:
Pro Sieben Media AG v Carlton UK Television Ltd
[1999] FSR 610 at 614.
116.

Although ‘current events’ has been said to be an expression of “

wide and indefinite scope
”
(
Pro Sieben Media),
the work must be used for reporting current events and not for
editorial or other purposes. Thus, in
Hyde Park Residence Ltd v Yelland
[2001] Ch 143 (a
case concerning the publication by
The Sun
of photographs of Princess Diana and Dodi
Fayed, taken by security video camera owned by Mr Al Fayed, the day before they died)
the Court of Appeal held that the use complained of was not for the purpose of reporting
the events of those days. Instead, the clear purpose and context were to expose the false
statements of Mr Al Fayed and to vilify him (at [30]). Summary judgment was granted in
favour of the Claimant.
117.

As to whether the dealing is fair, the following summary (provided by the authors of
Laddie, Prescott & Vitoria, The Modern Law of Copyright and Designs
)
,
was approved
by the Court of Appeal in
Ashdown v Telegraph Group
[2001] EWCA Civ 1142

at [70]
(another case where summary judgment was granted to the claimant):

“
It is impossible to lay down any hard-and-fast definition of what is fair dealing,
for it is a matter of fact, degree and impression. However, by far the most important

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factor is whether the alleged fair dealing is in fact commercially competing with

the proprietor's exploitation of the copyright work, a substitute for the probable

purchase of authorised copies, and the like. If it is, the fair dealing defence will

almost certainly fail. If it is not and there is a moderate taking and there are no

special adverse factors, the defence is likely to succeed, especially if the defendant's
additional purpose is to right a wrong, to ventilate an honest grievance, to engage
in political controversy, and so on. The second most important factor is whether

the work has already been published or otherwise exposed to the public. If it has

not, and especially if the material has been obtained by a breach of confidence or

other mean or underhand dealing, the courts will be reluctant to say this is fair.

However this is by no means conclusive, for sometimes it is necessary for the

purposes of legitimate public controversy to make use of ‘leaked’ information. The
third most important factor is the amount and importance of the work that has been

taken. For, although it is permissible to take a substantial part of the work (if not,
there could be no question of infringement in the first place), in some circumstances
11
Which provides an exception in connection with a sound recording, film or broadcast where an
acknowledgment would be impossible for reasons of practicality or otherwise

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the taking of an excessive amount, or the taking of even a small amount if on a
regular basis, would negative fair dealing.”
(emphasis added)
118.

In
Ashdown
, the Defendant published several verbatim extracts from a confidential minute
made by Paddy Ashdown of a meeting he attended with the Prime Minister. The Defendant
argued that they were justified in making limited quotation of Mr Ashdown’s own words,
in order to demonstrate that they had indeed obtained his own minute, so that they were in
a position to give an authentic account of the meeting. The Court of Appeal considered
that in this context the amount and the importance of the work that was taken were “
of
critical relevance
” (at [81]) stating:
“81. …
Can it be argued that the extensive reproduction of Mr Ashdown's own
words was necessary in order to satisfy the reader that the account given of his
meeting with Mr Blair was authoritative? We do not believe that it can. The
statement by the Sunday Telegraph that they had obtained a copy of the minute
coupled with one or two short extracts from it would have sufficed
.

82.
There may in law have been justification for the publication of the confidential
information that was contained in the minute. That is not an issue which is before
this court. We do not, however, consider that it is arguable that there was any
justification for the extent of the reproduction of Mr Ashdown's own words. It

appears to us that the minute was deliberately filleted in order to extract colourful

passages that were most likely to add flavour to the article and thus to appeal to

the readership of the newspaper. Mr Ashdown's work product was deployed in the

way that it was for reasons that were essentially journalistic in furtherance of the

commercial interests of the Telegraph Group. We do not consider it arguable that

Article 10 requires that the Group should be able to profit from this use of Mr

Ashdown's copyright without paying compensation

” (emphasis added).
119.

In rejecting at the summary stage the defence of fair dealing in

Hyde Park
, the Court of
Appeal stated (at [40]-[41]):
“40. …

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 I do not believe that a fair minded and honest person would pay for the
dishonestly taken driveway stills and publish them in a newspaper knowing that
they had not been published or circulated when their only relevance was the fact
that the Princess and Mr Dodi Fayed only stayed the 28 minutes at the Villa
Windsor—a fact that was known and did not establish that the Princess and Mr
Dodi Fayed were not to be married. To describe what "The Sun" did as fair dealing
is to give honour to dishonour. Further the extent of the use was excessive. The
only part of the driveway stills relevant to the alleged purpose was the information
as to the timing of arrival and departure. That information could have been given
in the articles by Mr Thompson stating that he had seen the photographs which
proved the Princess and Mr Dodi Fayed only stayed at the Villa Windsor for 28
minutes. If he needed confirmation he could have relied upon the statement by Mr
Cole. Despite that, "The Sun" used the driveway stills so that they covered over
one-third of page 4. The information as to the time of arrival and departure did not
establish that Princess Diana and Mr Dodi Fayed were not going to be married or
that the other statements made by Mr Al Fayed, that are said to be untrue, were
false.
41. The suggestion that the use of the driveway stills was a fair dealing for the
purposes of reporting the events of 30 August 1997 is, to draw upon the words of

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Henry LJ in

Time Warner Entertainment Co Ltd v Channel Four Television Corpn

plc [1994] EMLR 1 , 14, an attempt to dress up the infringement of Hyde Park's
copyright in the guise of reporting an event. In my view the judge came to the wrong
conclusion and the allegation of fair dealing by the defendants could not provide
them a defence to the action.
” (emphasis added).
120.
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On the claimant’s summary judgment application in
HRH The Prince of Wales v
Associated Newspapers
[2006] EWHC 522 (Ch) the Judge found that there was no real
prospect that the defence of fair dealing would succeed, stating (at [174]:

“174.
…The copy of the Hong Kong journal was obtained by the defendant as a
result of a breach of confidence. The defendant was put on notice of the fact. On
the evidence the defendant has no real prospect of showing otherwise. Taken as a
whole, the articles were not confined, even allowing a reasonable margin of
appreciation, to dealing with current events. The theme of the editorial content was
the claimant's fitness to be King and his skills as a chronicler of historical events
(a point emphasised by the heading at the top of the two-page spread). The
significance of the journal's contents in explaining (to the very limited extent that
it might be thought that they do) the claimant's non-attendance at the banquet in
Buckingham Palace a few days earlier and his non-attendance at the Embassy
banquet six years earlier form only a part of the overall contents of the articles, as
does any faint light that they throw on the claimant's conduct of his role as Heir to
the Throne. The overall impression conveyed by the articles, which I am as well

able on this application to assess as will a judge at a trial, is that the choice

passages from the journal have been selected for publication and comment, and

that this has been done with the purpose of reporting on the revelation of the

contents of the journal as itself an event of interest. In Ashdown the Court of

Appeal (at [82]) criticised the extent of the reproduction of the confidential minute
in that case in the following terms:
“It appears to us that the minute was deliberately filleted in order to extract
colourful passages that were most likely to add flavour to the article and thus to
appeal to the readership of the newspaper. Mr Ashdown's work product was
deployed in the way that it was for reasons that were essentially journalistic in
furtherance of the commercial interests of the Telegraph Group.”
Those comments precisely reflect the view that I take of the use made by the
defendant of the contents of the Hong Kong journal in the 13 November edition
”
(emphasis added).
(2)

Article 10
121.

As can be seen from section 16 of the CDPA, copyright confers negative rights on the
owner, by granting the owner the right to prevent others from doing that which the CDPA
recognises as an exclusive right of the owner. While at first blush copyright might be seen
as the antithesis of the rights contained in Article 10, copyright does not prevent the
publication of the information or ideas conveyed by the literary work. The idea/expression
dichotomy and its relevance when considering Article 10 rights was explained by the Court
of Appeal in
Ashdown
at [31]:

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“It is important to emphasise in the present context that it is only the form of the
literary work that is protected by copyright. Copyright does not normally prevent
the publication of the information conveyed by the literary work. Thus it is only the
freedom to express information using the verbal formula devised by another that is
prevented by copyright. This will not normally constitute a significant
encroachment on the freedom of expression. The prime importance of freedom of
expression is that it enables the citizen freely to express ideas and convey
information. It is also important that the citizen should be free to express the ideas
and convey the information in a form of words of his or her choice. It is stretching
the concept of freedom of expression to postulate that it extends to the freedom to

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convey ideas and information using the form of words devised by someone else.
Nonetheless there are circumstances, as we shall demonstrate in due course, where
this freedom is important.”
122.

The Court of Appeal in

Ashdown
further emphasised the significance of the second
paragraph of Article 10. In this context Lord Phillips stated (at [25]):
“…In a democratic society there are many circumstances in which freedom of
expression must, of necessity, be restricted. In particular untrammelled exercise of
freedom of expression will often infringe the ‘rights of others’, both under the
Convention and outside it. The right to respect for one's private life recognised by
Article 8 is an example. More pertinent in the present context is the right
recognised by Article 1 of the First Protocol:
Protection of property
Every natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions except in the public
interest and subject to the conditions provided for by law and by the general
principles of international law. The preceding provisions shall not, however, in any
way impair the right of a state to enforce such laws as it deems necessary to control
the use of property in accordance with the general interest or to secure the payment
of taxes or other contributions or penalties.”
123.

Under Article 1 of the First Protocol every natural person is entitled to the peaceful
enjoyment of his possessions. The Court of Appeal in
Ashdown
confirmed (at [28]) that
the infringement of copyright constitutes an interference with ‘the peaceful enjoyment of
possessions’. The Court of Appeal further held that there was “
no question but that
restriction of the right of freedom of expression can be justified where necessary in a
democratic society in order to protect copyright
” (at [28]), observing that, in most
circumstances, the principle of freedom of expression will be sufficiently protected if there
is a right to publish information and ideas set out in another’s literary work, without
copying the very words which that person has employed to convey the information or
express the ideas (see [28], [39]).
124.

The Court of Appeal concluded that the circumstances in which the right of freedom of
expression will come into conflict with the protection afforded by the law of copyright will
be “
rare
”, and that even if such circumstances led to the Court declining the discretionary
relief of an injunction, that would usually be sufficient (at [45]-[46]):
“
45. For these reasons, we have reached the conclusion that rare circumstances
can arise where the right of freedom of expression will come into conflict with the

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protection afforded by the
Copyright Act
, notwithstanding the express exceptions to
be found in the Act. In these circumstances, we consider that the court is bound,
insofar as it is able, to apply the Act in a manner that accommodates the right of
freedom of expression. This will make it necessary for the Court to look closely at
the facts of individual cases (as indeed it must whenever a ‘fair dealing’ defence is
raised). We do not foresee this leading to a flood of litigation.
46. The first way in which it may be possible to do this is by declining the
discretionary relief of an injunction. Usually, so it seems to us, such a step will be
likely to be sufficient. If a newspaper considers it necessary to copy the exact words
created by another, we can see no reason in principle why the newspaper should
not indemnify the author for any loss caused to him, or alternatively account to him
for any profit made as a result of copying his work. Freedom of expression should
not normally carry with it the right to make free use of another's work
” (emphasis
added).
(3)
Public Interest

125.

Under the common law there was a defence to a claim for copyright infringement on the
basis of ‘public interest’. This defence has been preserved by virtue of section 171(3) of
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the CDPA which provides that:
‘Nothing in this Part affects any rule of law preventing or restricting the
enforcement of copyright, on grounds of public interest or otherwise’.
126.

The defence of public interest arises under the Courts’ inherent jurisdiction to refuse to
allow their process to be used in certain circumstances:
Hyde Park
at [43].
127.

It is a narrow test that will apply only in rare cases:

Ashdown
at [47]. In emphasising the
rarity of cases where the public interest defence will apply, the Court of Appeal in
Ashdown
said (at [58]-[59]):
“
58. … Now that the Human Rights Act is in force, there is the clearest public
interest in giving effect to the right of freedom of expression in those rare cases
where this right trumps the rights conferred by the Copyright Act. In such
circumstances, we consider that s.171(3) of the Act permits the defence of public
interest to be raised.
59. We do not consider that this conclusion will lead to a flood of cases where
freedom of expression is invoked as a defence to a claim for breach of copyright.
It will be very rare for the public interest to justify the copying of the form of a work
to which copyright attaches. We would add that the implications of the Human
Rights Act must always be considered where the discretionary relief of an
injunction is sought, and this is true in the field of copyright quite apart from the
ambit of the public interest defence under s.171(3)
” (emphasis added).
128.

The Court of Appeal continued at [66]:

“
66. Where part of a work is copied in the course of a report on current events,
the “fair dealing” defence under section 30 will normally afford the court all the
scope that it needs properly to reflect the public interest in freedom of expression
and, in particular, the freedom of the press. There will then be no need to give

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28
separate consideration to the availability of a public interest defence under section
171.
”
129.

This is apposite in this case since the facts relied upon to support the Defendant’s case on
fair dealing are also relied upon in support of its public interest defence.
130.

An example of a case where the public interest defence succeeded is

Lion Laboratories v
Evans
[1985] QB 526. In that case, the claimant manufactured the Lion Intoximeter 3000
which was approved for use by the Home Office as a device for testing the breath of drivers
suspected of drink driving. Two ex-employees who had worked on the instrument
contacted national newspapers with copies of the claimant’s internal correspondence
which suggested that the instrument was prone to serious error. The claimant sought to
restrain the publication of these documents. The Court refused to enforce the claimant’s
copyright on the basis that it was in the public interest that information which showed their
instrument was not reliable should be made public. In reaching this conclusion the Court
recognised the “
wide difference between what was interesting to the public and what was
in the public interest to make known
”, stating (at p.537):
“
…
The public are interested in many private matters which are no real concern of
theirs and which the public have no pressing need to know. Secondly, the media
have a private interest of their own in publishing what appeals to the public and
may increase their circulation or the numbers of their viewers or listeners; and (I
quote from Sir John Donaldson M.R. in Francome v. Mirror Group Newspapers
Ltd. [1984] 1 W.L.R. 892 , 898B, "they are peculiarly vulnerable to the error of
confusing the public interest with their own interest
."
131.

This distinction between what is interesting to the public and was is properly to be regarded
as ‘in the public interest’ was emphasised in
HRH The Prince of Wales
at [118] – see above
paragraph 48.
I.

THE COPYRIGHT CLAIM: SUBMISSIONS

Subsistence
132.

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There are two challenges to subsistence, neither of which has any prospect of success:
132.1.

The Letter and the Electronic Draft purport to recite pre-existing facts both past and
present including the Claimant’s views of her father and his conduct, such that neither
the Letter nor the Electronic Draft is original; and
132.2.

The Letter was copied from the Electronic Draft such that it is not original.
133.

As to the first challenge, the idea/expression dichotomy usually arises in cases involving
non-textual copying, with a defendant claiming that it has merely taken the idea expressed
in a work as opposed to the expression of that idea. Since in this case there is no dispute
that the Defendant has copied extracts of the Letter exactly, the Defendant is forced to rely
on an argument that the Letter itself expressed ideas such that (i) the very text of the Letter
is not original and (ii) by copying the text, the Defendant merely copied the expression of
those ideas such that there is no infringement. Although it can sometimes be difficult to
draw the dividing line between an idea and the expression of an idea, that difficulty does
not arise in the present case, and both points relied upon by the Defendant are utterly
fanciful.

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29
134.

The pleading itself (RRAD ¶28

[A/5/A130]
) states that the Letter recites “
pre-existing
facts both past and present including the Claimant’s views of her father and his conduct
”.
It is then said that the Letter “
is, and primarily comprises, and admonishment of her
father
”, and that the “
pre-existing facts and admonishment
” are neither the Claimant’s own
intellectual creation nor original.
135.

The Claimant asked for further information concerning paragraph 28 of the RRAD by four
very focussed and specific requests – see Requests 1 to 4 at
[A/21/A401-402].
The
requests included a request for the Defendant to identify each “
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 pre-existing fact
” and each
“
admonishment
” relied upon, and a request for the Defendant to identify the specific words
that it contends are neither the Claimant’s own intellectual creation nor original
.
Given
that the Defendant must have considered these questions prior to putting forward its
positive case in the RRAD one would be forgiven for thinking it would be a
straightforward matter to provide the answers. Yet the Defendant failed to do so. Instead,
over a lengthy passage spanning five paragraphs the Defendant merely repeated sections
of its pleading. It is a bizarre narrative which the Court is invited to read in full: see
[A/21/A401-402]
. The only information contained within it that does not already appear
in the RRAD is the confirmation that it forms no part of the Defendant’s case that the
words themselves were copied from pre-existing works
12
and that “
the mere generation of
wording that is not copied from a pre-existing work is not sufficient for a literary work to
qualify as the intellectual creation of the author….
”.
136.

It is not clear what the Defendant means by “

the mere generation of wording
”. It may be
that the Defendant is alluding to the principle that the skill and labour involved in creating
a copyright work must be of the relevant kind. A well known example given by the authors
of
The Modern Law of Copyright
is of a mountaineer who ascertains the exact height of a
previously unconquered peak. Although skill and effort were involved in ascertaining this,
that would not justify him claiming copyright in a short sentence merely recording the
height, for it was skill and effort of a mountaineering as opposed to a literary character
13
.
But this case is miles away from such an example. The Letter (and the Electronic Draft)
expresses in the Claimant’s own words her intimate thoughts and feelings concerning her
relationship with her father. As set out in detail in the RAR at ¶12.7A1-6
[A/10/A300-302]
(see also the RAPOC ¶¶3, 13
[A/2/A5, A11])
the Claimant created the Electronic Draft
over a period of several weeks in August 2018, spending many hours working on it,
transcribing it by hand once she was happy with it. This is the epitome of skill and labour
of the relevant kind vis a vis literary works.
137.

In the light of the Defendant’s failure to respond to the Claimant’s requests, and
considering the nature of the requests, the inescapable conclusion is that the Defendant
failed to respond because it was and is unable to do so. The Claimant will ask the Court
to draw such an inference.
138.

Accordingly, there is no basis in fact or law for the positive case that the Defendant now
seeks to put forward on originality such that the challenge has no realistic prospect of
success.
139.

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As to the contention that the Letter is not original because it was copied from the Electronic
Draft, this does not provide a defence to the claim for copyright infringement. The
Claimant relies primarily upon the Electronic Draft as her original work in which copyright
subsists. The Letter is relied upon only if and to the extent that (i) the changes she made
12
Save in respect of the Letter being copied from the Electronic Draft
13

The Modern Law of Copyright,

Fifth Ed., Butterworths Lexis Nexis 2018, ¶3.70 (1)

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30
when copying out the Electronic Draft were reproduced by the Defendant in the Articles
and (ii) on that basis and to that extent the Defendant seeks to advance a case that it did
not copy the Electronic Draft (RAR ¶19.4A
[A/12/A325]
). By way of further explanation,
the Claimant originally relied upon the Letter as her copyright work. In response to the
Defendant’s challenge to originality (and on the assumption that this challenge was based
upon the existence of a prior copyright work, namely, the Electronic Draft) the Claimant
amended her statement of case to rely upon the Electronic Draft as her original copyright
work. The Letter remained in the statement of case in order to deal with the possibility of
the Defendant arguing that, because of the changes that were made by the Claimant when
copying out the Electronic Draft, the Defendant did not copy the Electronic Draft but rather
the Letter. That said, the Claimant makes no positive case that the changes made by her
when she transcribed the Electronic Draft by hand were sufficient to give rise to a
subsequent copyright work. Equally, the Defendant does not advance the potential plea
on originality. Accordingly, the Claimant would be content to proceed to summary
judgment simply on her case by reference to the Electronic Draft
14
.
Ownership
140.

The Claimant’s case is that she, and she alone, created the Electronic Draft which she then
transcribed by hand so as to create the Letter: see RAPOC ¶¶3, 13 [
A/2/A5, A11]
and RAR
¶¶12.7A5, 19.4B
[A/12/A310, A325]
.
141.

The Defendant advances a positive case that the Claimant “

involved the Kensington Palace

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Communications team (including Jason Knauf) in the writing of the Letter (at which stage
it was the Electronic Draft)
”: see RRAD ¶28B
[A/5/A131].
Given the lack of
particularisation of this positive case, the Claimant asked for further information – see
Request 1(a) to (c) at
[A/21/A401].
Again, the requests were short and focussed and
sought clarification as to which parts of the Electronic Draft the Defendant alleges were
created by someone other than the Claimant, and the author or authors of those parts.
142.

By its response, the Defendant confirmed that the positive case pleaded in paragraph 28B
of the RRAD is based on inference only, and that it does not know which parts were the
result of the contribution of someone other than the Claimant, or who made such
contributions. The positive case is thus advanced without any evidential support whatever.
It is entirely speculative and is denied by the Claimant - see paragraph 19.4B of the Re-A
Reply
[A/12/A325]
.
15

143.

In the Defendant’s evidence in response to the summary judgment application it suggests,

with Micawberish optimism, that by trial there will be some evidence that will support the
Defendant’s case on co-authorship. It is submitted that this is a transparent attempt to derail
the application for summary judgment by trying to suggest that there is a dispute of fact
that can only be resolved at trial. However, no credible evidence has been adduced by the
Defendant to support this proposition.
144.

Mr Verity gives hearsay evidence concerning the case on co-authorship. He states that an
unidentified source told him, less than three months ago, that Jason Knauf “
worked on
”
14
The Letter remains of relevance because by copying the Letter the Defendant copied the Electronic Draft.
This accordingly does not affect the relief sought.
15
The statement made by Mr Mathieson at paragraph 12 of his sixth witness statement that the assertion that
the
Claimant drafted the Electronic Draft with other people, specifically Jason Kanuf, “
has now been admitted
”
[B/6/B94]
is false. So too is the statement at paragraph 14 (repeated at paragraph 15(b)) of his sixth witness
statement that the Claimant has confirmed that Mr Knauf was involved “
in drafting
” the Letter. Mr Mathieson’s
sixth witness statement was served
after
service of the Re-A Reply which expressly denied the allegation.

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31
the Electronic Draft with the Claimant (paragraph 16.2), and that members of royal staff
are aware that they have information as to the truth of the issues in this case and that ‘this
is coming’ and they will have to tell the truth (paragraph 16.7)
[B/8/B122-123]
.

He does
not condescend to the detail of what Mr Knauf claims he did, or what such unidentified
members will be ‘telling the truth’ about or the detail of that alleged truth.
145.

Mr Mathieson goes slightly further by claiming that the “

Palace Four
” (i.e. the four
individuals from the royal household, namely Jason Knauf, Samantha Cohen, Christian
Jones and Sara Latham) “
will have evidence which will support the Defendant’s case
”
(paragraph 14
[B/6/B94]
). Mr Mathieson’s belief is apparently based upon second hand
hearsay evidence and “
other information
” (which he does not identify) provided by the
Defendant’s (unidentified) sources. Mr Mathieson also states in his sixth witness statement
that he anticipates that “
some information
” will be forthcoming from the Palace Four prior
to the summary judgment hearing (see paragraph 14).
146.

‘Some information’ has since been forthcoming – see the letter dated 21 December 2020
from Addleshaw Goddard on behalf of the Palace Four at
[B/18/B415]
which was sent to
both parties. However, contrary to Mr Mathieson’s claims, it contains no information at
all that supports the Defendant’s case on alleged co-authorship, and no indication that
evidence will be forthcoming that will support the Defendant’s case should the matter
proceed to trial. The letter merely states:
“
On the basis of our analysis of the statements of case, our preliminary view is that
one or more of our clients would be in a position to shed some light on the following
issues:
•

The creation of the Letter and the Electronic Draft…

”
147.

Thus, the only information that has been provided is that one or more of the Palace Four

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could “
shed some light
” on the creation of the Letter and the Electronic Draft. The Court
is not told what that light might be. This is far from information that will support the
Defendant’s case. It is equally consistent with the Palace Four supporting the Claimant’s
case by confirming that none of them had any involvement in the creation of the Letter or
the Electronic Draft and/or that Jason Knauf provided feedback on a draft of the Electronic
Draft but no actual wording.
148.

The Claimant’s case is that she alone created the Electronic Draft. In around the first week
of August 2018, the Claimant started drafting the Electronic Draft on the Notes application
of her iPhone, spending many hours working on it, until it was in a form that she was
happy with. She shared a draft of that Draft with her husband and Mr Knauf for support,
as this was a deeply painful process that they had lived through with her, and because Mr
Knauf was responsible for keeping the senior members of the Royal household apprised
of any public-facing issues – the media spectacle surrounding Mr Markle being one such
issue. Mr Knauf provided comments on the Electronic Draft in the form of “
general ideas
”
as opposed to actual wording. The Claimant, and the Claimant alone, created and finalised
the Electronic Draft, which she then transcribed by hand to her father as the Letter:
RAR
¶12.7A5.

149.

Accordingly, it is clear that there is no substance in the factual assertions now made by the
Defendant, and the Court is invited to place no weight on the inevitable submission by the
Defendant that there is a factual dispute that can only be resolved at trial. The Defendant
has provided no reasonable grounds for believing that a fuller investigation into the facts
of the case would add to or alter the evidence available to a trial judge and so affect the

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32
outcome of the case (see
Doncaster Pharmaceuticals
cited above at paragraph 30). The
Addleshaw letter contains no credible support for the Defendant’s position that by trial
some material evidence (documentary or otherwise) will have turned up which would
afford a defence to the copyright infringement claim.
150.

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The Court is therefore invited to ‘grasp the nettle’ and decide the issue at this hearing, in
favour of the Claimant.
151.

If, contrary to the foregoing, the Court believed the Defendant had shown some real
prospect of succeeding on the co-authorship point, it is submitted that this alone is not a
compelling reason for a trial. As a co-author of the work the Claimant is a co-owner of the
copyright and is therefore entitled to relief for infringement of her share of the copyright.
The only issue that would remain for determination would be the appropriate percentage
of the copyright to award her. In these circumstances the appropriate course would be to
direct a hearing on this issue only, with directions to join whoever the Defendant alleges
the relevant co-authors are under section 102(1) of the CDPA, or alternatively, grant
permission to proceed without them.
Substantial Part
152.

The Defendant denies that the Articles comprise a copy of a substantial part of the
Letter/Electronic Draft, namely, a substantial part of that which is the Claimant’s own
intellectual creation (RRAD ¶34
[A/5/A132]
. Since this is premised on the challenge to
originality, if the Court is satisfied that the extracts represent the Claimant’s own
intellectual creativity (as to which, see above) it follows that they represent (either
collectively or when the Articles are viewed individually) a substantial part of her
copyright work.
Fair dealing for the purpose of reporting current events
153.

The alleged “
current events
” relied upon by the Defendant (RRAD ¶37
[A/5/A133]
) are:
153.1.

The Claimant’s relationship with, and estrangement from, her father;

153.2.

Her conduct towards her father; and

153.3.

Mr Markle’s reaction to and view of the Letter and the People interview.
154.

None of the alleged current events is a matter that forms a legitimate subject of news
reporting, even if they were at the relevant time a matter of ‘current interest’. In particular,
it is relevant that the reference in the People article to the Letter was fleeting (see paragraph
52(g) above) and is incapable of rendering any of the matters relied upon by the Defendant
as current events that formed a legitimate subject of news reporting for the purposes of the
asserted defence.
16

155.

In any event, Article 5 does not purport to use the extracts of the Letter for the purpose of
reporting the so called ‘current events’ relied upon.
17
The extracts are used to support an
‘analysis’ provided by so-called ‘handwriting experts’ to report on aspects of the
Claimant’s character and make derogatory allegations about her based solely (and

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ludicrously) on her penmanship.
156.

As to whether the Defendant’s usage was fair, the starting point is that the Letter/Electronic
Draft was unpublished, and the Defendant published substantial extracts to its readership
16
RAR ¶19.6
[A/12/A327-328]
17
RAR ¶19.6 [
A/12/A328]

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33
of millions, without the Claimant’s consent. This is a powerful factor that points against
a finding of fairness (
Ashdown
[70]).
157.

The Defendant claims that it was necessary to publish extracts of the Letter in order to
enable Mr Markle to give his own different account of his relationship with the Claimant,
explaining why the Claimant’s account (as set out in the Letter) was inaccurate. In
particular, the Defendant claims at paragraph 15.14 of the Re-Re-A Defence
[A/5/A115]
:
“
It was a matter of editorial discretion and judgment to illustrate such an
admittedly lawful article with extracts from the Letter to give the article conviction
and to engage the attention of readers
” (emphasis added).
158.

Clearly recognising the hostage to fortune that this second reason is (see below), in its
evidence in response to this application the Defendant focusses only on the first of these
two given reasons – see Witness Statement of Edward Verity at paragraphs 9 – 11
[B/8/B120-121]
.
159.

As to the first stated reason, although a desire to establish authenticity

may
justify the
inclusion of quoted extracts of a copyright work for the purposes of a fair dealing defence
(see
Ashdown
at [81]), that purpose would only have justified the inclusion of “

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one or two
short extracts
” and not the “
extensive reproduction
” that had occurred. In
Ashdown
the
argument failed and summary judgment was granted for the Claimant.
160.

In this case each of the five Articles makes use of multiple quotes from the unpublished
Letter. Attached at Schedule B to this skeleton are two tables which set out the extent of
the usage of each extract. By way of example, the opening paragraph of the Letter –
“
Daddy, it is with a heavy heart that I write this, not understanding why you have chosen
to take this path, turning a blind eye to the pain you’re causing
” – was repeated a total of
12 times by the Defendant, appearing twice in Article 1, twice in Article 3, twice in Article
4 and three times in Article 5.
161.

In total, the Articles contained the following number of quotes:

161.1.

Article 1 contained 16 quotes from the Letter;

161.2.

Article 2 contained 14 quotes from the Letter;

161.3.

Article 3 contained 17 quotes from the Letter;

161.4.

Article 4 contained 23 quotes from the Letter;

161.5.

Article 5 contained 18 quotes from the Letter.

162.

The Defendant used 88 quotes in total across the series of five Articles.
163.

Articles 1 and 2 contain different quotes, numbering 15 and 14 respectively in total.

Articles 3, 4 and 5 repeat the quotes from Articles 1 and 2.
164.

A total of almost 50% of the contents of the Letter is reproduced at least once in the
Articles.

165.

It is submitted that, even if it were arguably justifiable for the Defendant to reproduce a
quote or two in order to satisfy its readers that the account of the Letter was genuine, its
extensive use of the quotes in the Articles is clearly incapable of justification. Given the
extensive nature of the usage, and the admission in paragraph 15.4 of the RRAD, it is
submitted that the extracts were employed for precisely the reason the Court of Appeal
found in
Ashdown
that the Telegraph Group had deployed Mr Ashdown’s words: to add
flavour to the Articles and appeal to the readership of the newspaper which were

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34
essentially journalistic reasons in furtherance of the newspaper’s commercial interests.
Such reasons cannot support the fair dealing defence as was held by the Court of Appeal
in
Ashdown
to be the case.
Article 10
166.

The Defendant’s contention that the enforcement of the Claimant’s copyright in the Letter
would seriously interfere with its rights under Article 10 ECHR and Article 11 of the
Charter of Fundamental Rights of the EU, or those of the Defendant’s readers or Mr Markle
(see paragraph 36 of the RRAD at
[A/5/A132]
) has no real prospect of success.
167.

Firstly, the Defendant’s freedom to express the ideas and information contained within the
Letter is not restricted by the enforcement of the Claimant’s copyright. It is only the form
of the Letter that is protected by copyright and not the publication of the information
contained within it. The Defendant’s rights under Article 10 do not extend to the freedom
to convey ideas and information using the particular form of words created by the
Claimant. Accordingly, the enforcement of the Claimant’s copyright represents no
interference whatever with the Defendant’s Article 10 rights. This is not one of the rare
cases contemplated by the Court of Appeal where the right of freedom of expression will
come into conflict with the protection afforded by the law of copyright (
Ashdown
at [45]).
168.

In any event, if the effect of the enforcement of the Claimant’s copyright is to restrict the
right of freedom of expression of the Defendant, its readers and Mr Markle, such restriction
is justified as necessary in a democratic society in order to protect the Claimant’s copyright
and her right to the peaceful enjoyment of that copyright under Article 1 of the First
Protocol of the ECHR. As Lord Phillips emphasised in
Ashdown
(at [25])
,
there are many
circumstances in which freedom of expression must be restricted, in particular where its
exercise infringes the rights of others. Under Article 1 of the First Protocol the Claimant
is entitled to the peaceful enjoyment of her possessions, which includes her copyright. Her
peaceful enjoyment of copyright refers to her being confident in the knowledge that none

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of the acts prohibited by copyright will be committed in relation to her unpublished
copyright work.
169.

Finally, even if the enforcement of the Claimant’s copyright restricted the Defendant’s
right of freedom of expression and acted to outweigh the Claimant’s property rights, this
would at most only result in a denial of the Claimant’s claim for equitable injunctive relief.
It would leave unaffected the Defendant’s liability to the Claimant, by way of remedy for
the infringement of her copyright, for the loss caused or her, or alternatively for an account
to her for any profit made by the Defendant as a result of copying her copyright work -
see
Ashdown
at [46].
Public interest
170.

The Claimant repeats the points made above at paragraphs 88-95.

171.

The Defendant relies upon the same arguments advanced under the Article 10 defence in
support of its defence of public interest (see paragraph 37 of the RRAD at
[A/5/A133]
). If
the Defendant does not succeed on the fair dealing defence then it cannot succeed on the
public interest defence. As in
HRH The Prince of Wales
, it does not follow from the fact
that the Claimant is in the public eye and her every thought and action “
a matter of endless
fascination
” that it is in the public interest to know the intimate details of her personal

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relationship with her father. It is submitted that this case is miles away from those “
rare
cases where the public interest trumps the rights conferred by the 1988 Act
”.
18

Relief Sought
172.

The Claimant seeks an order in the form of the draft Order at

[B/2/B6]
.

The Court will be

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taken through the detail at the hearing, but for present purposes we draw particular
attention to paragraph 13. Its purpose is to act as a deterrent to future infringers and ensure
that the public is informed of the outcome of the litigation.
173.

The second reason is of particular importance given the Defendant’s practice of providing
a running – and at times misleading - commentary on the litigation to its readers at almost
every stage of the proceedings, focussing on “
sensational reporting of information that
happens to be contained in the claimant’s statements of case
”:
Sussex v Associated
Newspapers
[2020] EWHC 2160 (Ch) per Warby J at [59]. An index of articles published
by the Defendant that reports on information imparted in the course of this litigation is at
[B/4/B81-83]
.

The articles themselves are at

[B/4/B27-80]
.
J. CONCLUSION
174.

The Court is accordingly invited to grant the Claimant relief as sought.

IAN MILL QC
JUSTIN RUSHBROOKE QC
JANE PHILLIPS
JESSIE BOWHILL
14 January 2021

18

HRH Prince of Wales

ibid at [180]

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