The publisher of The Mail On Sunday today revealed it is considering an appeal to the Supreme Court after it lost a Court of Appeal challenge against a ruling in favour of the Duchess of Sussex over publication of a personal letter to her estranged father, Thomas Markle.
Meghan, 40, sued Associated Newspapers Limited (ANL), also the publisher of MailOnline, over five articles that reproduced parts of her letter to Thomas Markle, 77, in August 2018.
The duchess won her case earlier this year when a High Court judge ruled in her favour without a full trial. However, ANL brought an appeal and, at a three-day hearing in November, argued the case should go to a trial on Meghan’s claims against the publisher – including breach of privacy and copyright.
Lawyers representing the publisher said at the earlier hearing that Mr Markle wished to counter points made by friends of Meghan who had given an interview to People magazine in the US.
But, in a ruling today, Sir Geoffrey Vos, Dame Victoria Sharp and Lord Justice Bean dismissed the publisher’s appeal.
A spokesman for Associated Newspapers said: ‘We are considering an appeal to the Supreme Court in the United Kingdom.
‘We are very disappointed by the decision of the Court of Appeal. It is our strong view that judgment should be given only on the basis of evidence tested at trial, and not on a summary basis in a heavily contested case, before even disclosure of documents. No evidence has been tested in cross-examination, as it should be, especially when Mr Knauf’s evidence raises issues as to the Duchess’s credibility.
‘After People magazine published an attack on Mr Markle, based on false briefings from the Duchess’s friends wrongly describing the letter as a loving letter, it was important to show that the letter was no such thing. Both the letter and People magazine also seriously misrepresented the reasons for Mr Markle’s non-attendance at the royal wedding. The articles corrected these matters, and raised other issues of public interest including the reasons for the breakdown in the relationship between the Duchess and her father’.
Meghan Markle sued Associated Newspapers Limited [ANL] over a series of articles which reproduced parts of the letter she sent to Thomas Markle (pictured together) in August 2018. ANL is considering going to the Supreme Court after it lost a Court of Appeal challenge
Andrew Caldecott QC, for the publisher, had told the court the People article accused Mr Markle of having ‘cold-shouldered’ his daughter in the run up to her wedding to the Duke of Sussex, and of having lied about her shutting him out.
Jason Knauf, the former communications secretary to the Duke and Duchess of Sussex
The barrister also said the article implied Mr Markle had given a ‘cynical and self-interested response’ and ignored her pleas for reconciliation in a ‘loving letter’ – all while Meghan remained ‘dutiful’ and supportive of him.
But, dismissing the publisher’s appeal today, Sir Geoffrey Vos said: ‘It was hard to see what evidence could have been adduced at trial that would have altered the situation. The judge had been in as good a position as any trial judge to look at the article in People magazine, the letter and The Mail On Sunday articles to decide if publication of the contents of the letter was appropriate to rebut the allegations against Mr Markle.
‘The judge had correctly decided that, whilst it might have been proportionate to publish a very small part of the letter for that purpose, it was not necessary to publish half the contents of the letter as ANL had done.’
In her written evidence, Meghan denied she thought it likely that her father would leak the letter, but ‘merely recognised that this was a possibility’.
But Jason Knauf, former communications secretary to the Duke and Duchess of Sussex who now works for Harry’s brother William, claimed in a witness statement that Meghan wrote the letter with the understanding that it could be leaked.
He said she sent him an early draft of the letter and had written: ‘Obviously everything I have drafted is with the understanding that it could be leaked so I have been meticulous in my word choice, but please do let me know if anything stands out for you as a liability.’
The Court of Appeal also heard that Mr Knauf provided information to the authors of the biography Finding Freedom – Omid Scobie and Carolyn Durand – leading to Meghan apologising for misleading the court about whether he had given information.
Today’s judgment said: ‘This was, at best, an unfortunate lapse of memory on her part’.
It went on: ‘The new evidence that had been provided to it had also been widely publicised in the press, nationally and internationally.
‘In those circumstances, it decided that the new evidence should be admitted as a matter of pure pragmatism, even though it was more directed to the drafting of the Letter and to what the Duchess knew about the contacts between the Kensington Palace Communications Team and the authors of the book, ‘Finding Freedom’, than to the issues in the appeal.
‘Despite finding the new evidence of little assistance, the Court of Appeal noted that the Duchess had apologised to the court for the pleading served on her behalf that said she did not know if, and to what extent, the Communications Team were involved in providing information for the Book. It had appeared from new evidence from Mr Knauf that he had provided some information to the authors of the Book with the Duchess’s knowledge’.
Texts saved under the pseudonym ‘Tilly’ show Meghan writing to the Sussexes’ former communications secretary, Jason Knauf
Meghan says she feels ‘cathartic’ after having written the letter and adds that she ‘toiled over every detail which could be manipulated’
The Court of Appeal heard that Mr Knauf – acting on Meghan’s instructions – provided information to the authors of Finding Freedom by Omid Scobie and Carolyn Durand – leading to Meghan apologising for misleading the court. Emails published this month show Meghan and Harry discussing the book with advisers
The Mail on Sunday – the Daily Mail’s sister paper – sought to defend itself against Meghan’s privacy claims by arguing she herself had allowed US magazine People and the Finding Freedom authors Omid Scobie and Carolyn Durand to be briefed to produce ‘favourable’ versions of her life story, which the royal couple denied doing.
Five friends had decided to ‘help’ by giving interviews anonymously to People magazine, which has 35million readers worldwide. Meghan insists she knew nothing about it
Today’s judgment said: ‘Associated Newspapers argued that the judge had failed to realise how People magazine had traduced Mr Markle by alleging that he had cold shouldered his daughter at the time of the wedding, lied about her shutting him out, and ignored her pleas for reconciliation in a loving Letter.
‘The Court of Appeal found that the judge had been right to decide that just one paragraph of the Letter could have been justifiably deployed to rebut the allegation in People magazine that the Duchess’s Letter was loving, when in fact it was a Letter reprimanding Mr Markle for talking to the press and asking him to stop doing so’.
Rejecting today’s appeal the judges said: ‘The Court of Appeal upheld the judge’s decision that the duchess had a reasonable expectation of privacy in the contents of the letter.
‘Those contents were personal, private and not matters of legitimate public interest. The articles in the Mail on Sunday interfered with the duchess’ reasonable expectation of privacy and were not a justified or proportionate means of correcting inaccuracies about the letter.’
In a statement after the judgment was made public today, Meghan said: ‘This is a victory not just for me, but for anyone who has ever felt scared to stand up for what’s right.
‘While this win is precedent-setting, what matters most is that we are now collectively brave enough to reshape a tabloid industry that conditions people to be cruel and profits from the lies and pain that they create.
‘From day one I have treated this lawsuit as an important measure of right versus wrong.’
During the appeal hearing earlier this month, The Duchess of Sussex, who previously insisted she and Prince Harry did not cooperate with the writers of the gushing biography, said she had ‘forgotten’ providing the aide details of what to reveal ‘when you sit down with them’.
It emerged she had emailed Jason Knauf on December 10, 2018, including some ‘helpful’ background ‘reminders’ about her estranged family and her version of events of a tiara incident involving the Queen.
In a written statement, she told the judges: ‘In the light of the information and documents that Mr Knauf has provided, I accept that Mr Knauf did provide some information to the authors for the book and that he did so with my knowledge.’
In September 2020, Meghan’s lawyers insisted to the court ‘neither the [duchess] nor her husband co-operated with the authors to put out ‘their version of events’,’ and in November that year the duchess personally approved a statement saying she ‘does not know if, and to what extent, the [palace] communications team were involved in providing information for the book’.
But Meghan told the court: ‘When I approved [that] passage, I did not have the benefit of seeing these emails and I apologise to the court for the fact that I had not remembered these exchanges at the time. I had absolutely no wish or intention to mislead the defendant or the court.’
The Court of Appeal was also given a tranche of emails and text messages between Harry and Meghan and their palace advisers spanning August to December 2018.
Harry faced ‘constant berating’ from Prince Charles over his wife’s strained relationship with her father Thomas Markle, according to court documents.
Meghan said the heir to the throne and other senior royals had urged Harry: ‘Can’t she just go and see him and make this stop?’
But the Duchess of Sussex refused to fly to America, and complained that the Royal Family ‘fundamentally don’t understand’ – even after she and Harry tried ‘endlessly explaining the situation’ to them, it was claimed.
Meghan said the fallout with her estranged father after he missed her wedding in 2018 had caused Harry pain. She decided to write a letter to Mr Markle, who had given various media interviews. She describes the letter as written ‘in the spirit of facts without seeming orchestrated’.
Meghan made the claims in a text message she sent palace media adviser Jason Knauf on August 22, 2018. Her text, which included a draft of the now-infamous letter, read: ‘The catalyst for my doing this is seeing how much pain this is causing H [Harry].
‘Even after a week with his dad and endlessly explaining the situation, his family seem to forget the context – and revert to ‘can’t she just go and see him and make this stop?’
The blunt message, sent just three months after Meghan joined the Royal Family, went on: ‘They fundamentally don’t understand, so at least by writing, H will be able to say to his family… ‘she wrote him a letter and he’s still doing it.’ By taking this form of action, I protect my husband from this constant berating, and while unlikely perhaps it will give my father a moment to pause.’
Only weeks earlier, Prince Charles had stepped in to give Meghan away at St George’s Chapel in Windsor Castle following her father’s heart attack.
Meghan’s message then continued: ‘Obviously everything I have drafted is with the understanding that it could be leaked so I have been meticulous in my word choice but please let me know if anything stands out for you as a liability.’
Source: Daily Mail UK