Lawyers for the Duchess of Sussex have insisted her privacy claim against the publishers of the Mail on Sunday (MoS) will continue after she was dealt an initial blow when a judge ruled that part of her case should be struck out.
Lawyers for Associated Newspapers had argued last month against elements including that some words and sentences from a letter by Meghan to her estranged father, Thomas Markle, had been “dishonestly” cut out before publication in order to paint a misleading picture of the relationship between the two.
She is suing the newspaper group for misuse of private information, breach of data protection and copyright infringement after the Mail on Sunday and Mail Online, which it owns, published contents of the handwritten letter sent to Markle, 75, in August 2018. Associated Newspapers denies the claims.
Delivering his ruling on Friday, Mr Justice Warby struck out allegations that the publisher had acted “dishonestly” by leaving out certain passages of the letter.
He also struck out allegations that the publisher deliberately “stirred up” issues between Meghan and her father, and that it had an “agenda” of publishing intrusive or offensive stories about her.
Those allegations should not form part of the duchess’s case at this stage, he said, because they were “irrelevant” to her claim for misuse of private information, copyright infringement and breach of the Data Protection Act.
But he said those parts of her case may be revived at a later stage, if they are put on a proper legal basis.
“Some of the allegations are struck out as irrelevant to the purpose for which they are pleaded,” said the judge in a written ruling.
“Some are struck out on the further or alternative ground that they are inadequately detailed. I have also acted so as to confine the case to what is reasonably necessary and proportionate for the purpose of doing justice between these parties.
“I do not consider that the allegations struck out on that basis go to the ‘heart’ of the case, which at its core concerns the publication of five articles disclosing the words of, and information drawn from, the letter written by the claimant to her father in August 2018.”
Schillings, the law firm representing the duchess said the ruling made it very clear that the core elements of the case do not change, saying: “The duchess’s rights were violated; the legal boundaries around privacy were crossed.”
A spokesperson added: “Whilst the judge recognises that there is a claim for breach of privacy and copyright, we are surprised to see that his ruling suggests that dishonest behaviour is not relevant.”
The action by the duchess focuses on five articles – two in the Mail on Sunday, and three on Mail Online – reproducing parts of the letters, with the headline on one reading: “Revealed: The letter showing the true tragedy of Meghan’s rift with a father she says has ‘broken her heart into a million pieces’.”
During a hearing last month, which was heard remotely before a virtual court hearing in London, lawyers for Meghan accused the Mail of “stirring up” issues between the duchess and Markle, then using it to justify publishing a “private and confidential” letter.
She was said to have been distressed at the realisation that Associated Newspapers had an agenda of “intrusive and offensive” stories about her.
But counsel for the publisher argued that allegations of “dishonesty and malicious intent” were not relevant in a misuse of private information case. Claims that the newspaper had “harassed, humiliated, manipulated and exploited” her were “remarkable” given that she had not contacted her father to ask if he agreed, he added.
The ruling was a “total loss” for Meghan, according to Mark Stephens, a libel and privacy expert at the law firm Howard Kennedy, who said that the judge had struck out a “significant but ill-informed” part of her claim.
She now faced paying between £200,000 to £250,000 in costs for pursuing what he described as “a wide-ranging attack on the media,” and the prospect of being cross-examined during the case about the way she and friends “curated” her reputation.
“She had a very simple and quite strong – on the face of it – case of privacy, because it was a confidential letter written from an estranged daughter to an estranged father. It has now pared back to a privacy and copyright claim,” Stephens added.
Another lawyer, Jonathan Coad of Coad Law, said the newspaper had scored a tactical victory by paring down the claim, which he said had been “over-egged” in a way that had not stood up to the forensic scrutiny of the court.
“This will all contribute to the exertion of pressure by the MoS on Ms Markle to abandon her claim,” he added.
But the campaign group Hacked Off said that the judgment would make no difference to the substantial claim for misuse of private information.
Nathan Sparkes, the policy director at Hacked Off, said: “Harry and Meghan have been dragged through the mud by the Mail, which has waged a campaign of intrusion and abuse against Ms Markle in particular.”