Associated Newspapers’ appeal in claim by the Duchess of Sussex dismissed

Court of Appeal upholds summary judgment decision

The appeal by Associated Newspapers Ltd against the decision by Warby LJ to grant summary judgment in favour of the Duchess of Sussex on her claim for breach of privacy and breach of copyright has been dismissed by the Court of Appeal.

The claims by the Duchess related to the publication in the Mail on Sunday and on Mailonline of about half of the contents of a 5-page handwritten letter which the Duchess had sent on 27 August 2018 to her father, Thomas Markle.

In a judgment handed down on 2 December 2021, the Court of Appeal (Sir Geoffrey Vos, Master of the Rolls, giving the lead judgment, with which Dame Victoria Sharp, President of the Queen’s Bench Division, and Bean LJ agreed) 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 interfered with the Duchess’s reasonable expectation of privacy, and were not a justified or proportionate means of correcting inaccuracies about the Letter contained in an article published on 6 February 2019 in People magazine in the USA.

The Court of Appeal admitted new evidence which had been provided to it 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” (the Book), than to the issues in the appeal.

For the detailed reasons given in the judgment of the Master of the Rolls, Warby LJ’s decision was upheld. 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 articles to decide if publication of the contents of the Letter was appropriate to rebut the allegations made 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 Associated Newspapers had done. The Court of Appeal concluded by reiterating the narrowness of the issues it had to decide.

The judgment and press summary are available at:

Andrew Caldecott QC, Alexandra Marzec and Gervase de Wilde of 5RB, instructed by Reynolds Porter Chamberlain LLP, appeared on behalf of Associated Newspapers; and Justin Rushbrooke QC, and Jane Phillips of 5RB, instructed by Schillings International LLP, appeared on behalf of the Duchess of Sussex.