Summary Judgment - Duchess of Sussex v Associated Newspapers

By Skyring at the English language Wikipedia, CC BY-SA 3.0,

Chancery Division (Mr Justice Warby) HRH The Duchess of Sussex v Associated Newspapers Ltd [2021] EWHC 273 (Ch) (11 Feb 2021)

Her Royal Highness, the Duchess of Sussex, brought proceedings against the publisher of The Mail on Sunday and The Mail Online for publishing large parts of a letter that she wrote to her father on 27 Aug 2018.  Her causes of action were breach of statutory duty under the Data Protection Act 2018, misuse of private information and copyright infringement.  I discussed earlier hearings in this litigation in Practice - Mail's Strikeout Application on 17 May 2020 and Confidentiality - Duchess of Sussex v Associated Newspapers Ltd on 13 Aug 2020. 

The Application
This was an application by the duchess to strike out the publisher's defence to her claims for misuse of private information and copyright infringement under CPR 3.4 or, alternatively, summary judgment Part 24. It was heard by Mr Justice Warby on 19 and 20 Jan 2021. His lordship delivered judgment largely in favour of the duchess on 11 Feb 2021 (see HRH The Duchess of Sussex v Associated Newspapers Ltd [2021] EWHC 273 (Ch) (11 Feb 2021).

Strike Outs
Strike out applications are governed by CPR 3.4 (2) (a) and para 1.6 of Practice Direction 3A - Striking Out a Statement of Case.  Mr Justice Warby referred to para [33] of his judgment in HRH The Duchess of Sussex v Associated Newspapers Ltd (Rev 1) [2020] EWHC 1058 (Ch) (1 May 2020) where he propounded the following principles:

"… 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'"… But it should not strike out under this sub-rule unless it is 'certain' that the statement of case, or the part under attack, discloses no reasonable [defence] … Even then, the Court has a discretion; it should consider whether the defect might be cured by amendment; if so, it may refrain from striking out and give an opportunity to make such an amendment."

Summary Judgment
Summary judgment applications are governed by CPR 24.2 which allows the court to give summary judgment against a defendant on the whole of a claim, or on a particular issue, if it considers 

"(a)… that the defendant has no real prospect of successfully defending the claim or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial."

His lordship summarized the effect of the rule at para [12] of his judgment:

"In this context there is no assumption that what is asserted in the Defence is true; evidence to the contrary is admissible, and is commonly adduced by the applicant and by the respondent. But it is possible to seek summary judgment on the footing that the claim is plainly meritorious and the defence contentions, even if true, could not amount to an answer to the claim."

He also referred to Mr Justice Lewison's judgment in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) [15] which was approved by the Court of Appeal in AC Ward & Sons Ltd v Catlin (Five) Ltd [2009] EWCA Civ 1098) and relied upon by both sides:

"i) The court must consider whether the [defendant] has a 'realistic' as opposed to a 'fanciful' prospect of success;
ii) A 'realistic' [defence] is one that carries some degree of conviction. This means a claim that is more than merely arguable …
iii) In reaching its conclusion the court must not conduct a 'mini-trial' …
iv) This does not mean that the court must take at face value and without analysis everything that a [defendant] says 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 contemporaneous documents …
v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial …;
vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist 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 …;
vii) On the other hand, it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of … successfully defending the claim against him …. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction:…"

Misuse of Private Information
At para [29] the learned judge said that domestic law gives effect to arts 8 and 10 of the European Convention on Human Rights through the tort of misuse of private information.  Liability under this tort is determined by a two-stage test:  
  • whether the claimant enjoyed a reasonable expectation of privacy in respect of the information in question; and  
  • whether in all the circumstances the privacy rights of the claimant must yield to the imperatives of the freedom of expression enjoyed by publishers and their audiences.
Claimant's Contentions
The duchess's contentions in support of her application were set out at para [33] of Mr Justice Warby's judgment:

"(1) The contents of the Letter are private and strongly engage the claimant's rights under Article 8 of the ECHR to respect for her 'private and family life... and [her] correspondence'.
(2) The defendant's acts in publishing, without the claimant's consent, to a readership of millions, substantial extracts from the Letter constituted an interference with the claimant's said rights.
(3) Neither the Letter nor any part of its contents had been brought into the public domain whether by the claimant or at all at the date of the defendant's acts of publication.
(4) The facts and matters relied upon by the defendant in its Re-Re-Amended Defence as reducing, extinguishing and/or outweighing (whether by reference to Article 10 ECHR or otherwise) the claimant's said rights do not disclose, and are not capable of as a matter of law disclosing, any defence to the claim for misuse of private information."

The Facts
Between para [37] and [43] of his judgment the judge traced the relationship between the duchess and her father at and after her wedding to Prince Harry.  From [44] to [45] he analysed the duchess's letter. He mentioned her father's reply. He discussed an article entitled The Truth About Meghan which had appeared in a US magazine in paras [47] to [51].  From [52] to [54] he traced the dealings between the duchess's father and The Mail on Sunday. After noting at [55] that the defendant did not contact the claimant, the judge considered the newspaper's articles between [56] and [60].

The Defence
The learned judge summarized the publisher's defence between paras [6] and [8] of his judgment:

"[6] The defendant denies the claim. It maintains that the contents of the Letter were not private or confidential as alleged, and that the claimant had no reasonable expectation of privacy. Further or alternatively, any privacy interest she enjoyed was slight, and outweighed by the need to protect the rights of her father and the public at large. The defendant's pleaded case is diffuse and hard to summarise. But prominent features are contentions that, even if the claimant might otherwise have had any privacy rights in respect of the Letter,
(1) such rights were (a) limited, given the legitimate public interest in the activities of the Royal family and the claimant's status as a "high-ranking member" of that family, and (b) destroyed, weakened or compromised by (i) her knowledge of her father's propensity to speak to the media about their relationship, (ii) the fact that publication of the existence and contents of the Letter was lawful in the US, (iii) her own conduct in causing, authorising, or intending publicity about the Letter and/or her relationship with her father more generally, and/or (iv) the publication of information about the Letter;
(2) the People Article gave a misleading account of the father-daughter relationship, the Letter and Mr Markle's letter in response, such that (in all the circumstances) public disclosure of the contents of the Letter in the Mail Articles was justified to protect the rights and interests of Mr Markle and the public at large.
[7] The defendant's case on the non-existence, destruction, compromise or weakening of the claimant's rights of privacy relies, among other things, on allegations that she intended the Letter to be publicised, and to that end disclosed information about it to the 'best friends; quoted in the People Article ('the Five Friends'), and/or to Omid Scobie and Caroline Durand ('the Authors') for the purposes of their biography of the Duke and Duchess, published in mid-2020, under the title 'Finding Freedom - Harry and Meghan and the Making of a Modern Royal Family' ('the Book').
[8] As for the allegation of copyright infringement, the defendant takes issue with the claimant's case on originality, on subsistence of copyright, on ownership, and on infringement; further and alternatively, it relies on defences of fair dealing and public interest, and contends that the Convention rights of others to impart and receive information outweigh any copyright to which the claimant can properly lay claim."

The judge noted at [63] that the publisher relied heavily on the Book in support of 

"(i) its case on co-operation and its case that any expectation of privacy in the Letter has been "compromised" by her conduct in that she (ii) has permitted information about her own private life and correspondence "to enter the public domain by means of the Book" and (iii) does not object to details of her own or others' personal relationships and correspondence being publicly disclosed, provided the disclosure is favourable or flattering."

He referred to passages of the Book that had been quoted in the defence.

Reasonable Expectation of Privacy
Mr Justice Warby considered first the question whether or not the duchess enjoyed "a reasonable expectation that the contents of the Letter were private and would remain so".  He held at para [66] of his judgment that she did:

"There are two main questions for me. First, whether the Defence sets out any case which, assuming it to be true, would provide a reasonable basis for finding that there was, at any material time, no reasonable expectation of privacy. Secondly, whether the defendant has any realistic prospect of successfully defending this issue at trial. In my judgment, the answer to both questions is no. Nothing that the defendant has pleaded in answer to this part of the claimant's case provides any reasonable basis for defending the issue. I also consider that there is no real prospect of the Court concluding after a trial that, at the time the Mail Articles were published, or at any material time between then and now, the contents of the Letter were not private, or that the claimant did not enjoy a reasonable expectation that they would remain private."

He reached his finding on the basis that "none of the detailed contents of the Letter had entered the public domain by the time of the publication complained of" (para [68]).  He also noted at [69] that:

"(1) The claimant was a prominent member of the Royal Family, and in that sense a public figure, who had a high public profile, and about whom much had been and continued to be written and published; this is an important feature of the background and the circumstances but (2) the nature of the 'activity' in which she had engaged was not an aspect of her public role or functions; she was communicating to her father about his behaviour, its impact on her, her feelings about it, and her wishes for the future; and (3) she was doing this in a letter sent to him alone, privately, by means of a courier service. (4) The "intrusion" involved the publication of much if not most of the information in the Letter by way of sensational revelations over four pages of a popular newspaper and online, to a very large readership; and that, in broad terms, was the purpose of the "intrusion". (5) There was no consent, and it is beyond dispute that this was known to or could have been inferred by Mr Markle and the defendant. (6) The unwanted disclosure was likely to cause the claimant at least some distress, especially as it was done with the co-operation of her father, and in the context of a detailed and critical response by him to the content of the Letter. (7) The information was given to the defendant by the claimant's father."

He considered each of the defendant's arguments that were summarized in para [6] of his judgment between paras [71] and [94] and concluded at [95] that the claimant was bound to win at trial on the reasonable expectation of privacy issue and that it was fanciful to think otherwise.

Whether Expectation was Outweighed
His lordship turned to the question of whether the privacy rights of the claimant must yield to the imperatives of the freedom of expression enjoyed by publishers and their audience. He considered all the publisher's contentions and concluded that the only one that could possibly succeed was correcting the record or, to adopt the language of the Editors' Code of Conduct, "preventing the public from being misled".

The publisher argued that the article in the American publication had harmed the duchess's father's reputation and the articles in The Mail on Sunday had set the record straight. The judge regarded that defence as entirely hopeless.  A measured and proportionate response to the same audience might be justified but not the sort of publications that had appeared in the Mail.

Conclusion on Privacy
The judge concluded at [128]:

"The claimant had a reasonable expectation that the contents of the Letter would remain private. The Mail Articles interfered with that reasonable expectation. The only tenable justification for any such interference was to correct some inaccuracies about the Letter contained in the People Article. On an objective review of the Articles in the light of the surrounding circumstances, the inescapable conclusion is that, save to the very limited extent I have identified, the disclosures made were not a necessary or proportionate means of serving that purpose. For the most part they did not serve that purpose at all. Taken as a whole the disclosures were manifestly excessive and hence unlawful. There is no prospect that a different judgment would be reached after a trial. The interference with freedom of expression which those conclusions represent is a necessary and proportionate means of pursuing the legitimate aim of protecting the claimant's privacy."

The Duchess of Sussex drafted her letter to her father on her smartphone and copied it onto paper.  She claimed that the draft was an original literary work in which copyright subsisted.   She alleged that she was the sole author of the draft and therefore the owner of the copyright.  The articles reproduced 585 words of a 1,250-word letter which the judge held to be qualitatively as well as quantitatively a "substantial part".  By reproducing substantial parts of her letter in its newspaper and on its website she argued that the publisher had infringed her copyright,

The publisher denied that she was the sole author and owner of the copyright because she had "involved" members of the Kensington Palace communications teams and, in particular, Jonathan Knauf in drafting the letter. There was evidence that his contribution had been substantial.  His lordship accepted that the defence that Mr Knauf may have been the joint author and thus joint owner of the copyright in the letter was more than fanciful and had to go to trial.

The defendant also argued that the draft was not original on the ground that it was not her intellectual creation in that it was nothing more than an admonishment in which copyright could not subsist.  No authority was offered in support of the contention and the judge rejected it.  The other defences, namely fair dealing and a public interest defence based on art 10 of the Convention also failed.  The judge granted the claimant summary judgment on subsistence and infringement only.

There will be a hearing on 2 March 2021 for directions on the trial of the remaining issues, remedies, costs and any other remaining matters.

Anyone wishing to discuss this article or the issues discussed in it may call me on 020  7404 5252 or send me a message through my contact form.


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