The Mail on Sunday has been given permission to rely on a biography of the Duke and Duchess of Sussex in its legal defence of the duchess’s privacy claim against it, after the newspaper argued the couple had collaborated with the book’s authors.
Meghan is suing Associated Newspapers Ltd (ANL), the publishers of the newspaper and the website MailOnline, for alleged misuse of private information, breaching the Data Protection Act and infringement of copyright over publication of parts of a letter to her estranged father, Thomas Markle.
The newspaper publisher argued that Meghan gave the authors, Omid Scobie and Carolyn Durand, information about the handwritten August 2018 letter “in order to set out her own version of events in a way that is favourable to her”.
Her lawyers argued that any accusations the couple had “collaborated” with the authors was a “conspiracy theory” and said any references to the letter in the book were simply “extracts from the letter” lifted from articles published by ANL.
The duchess launched legal action last year over five articles published in February 2019, two in the Mail on Sunday and three on MailOnline, which included extracts from the “private and confidential” letter.
Ruling on ANL’s application, Judge Francesca Kaye allowed the publisher to amend its defence to rely on Finding Freedom. She said the amended defence did not raise “new defences”, but simply added “further particulars” of the publisher’s case.
She added that Meghan “knows the case she has to meet” and that “there is no suggestion that she is in fact unable to do so”.
Justin Rushbrooke QC, for Meghan, asked for permission to appeal the ruling. He said the “inherent improbability” of Meghan having co-operated with the authors of the biography could be demonstrated by “simply comparing what the defendant’s own articles said with what the book said about the letter” to her estranged father.
The judge refused permission to appeal, though Meghan’s lawyers can apply directly to the court of appeal.
In written arguments before the court last week, Rushbrooke said: “The claimant and her husband did not collaborate with the authors of the book, nor were they interviewed for it, nor did they provide photographs to the authors for the book.”
Antony White, QC, for ANL, in a written statement to last week’s hearing, said Finding Freedom gave “every appearance of having been written with their [Harry and Meghan’s] extensive co-operation”. He added ANL wanted to amend its defence to allege Meghan “caused or permitted information to be provided directly to, and co-operated with, the authors, including by giving or permitting them to be given information about the letter”.
Court documents have revealed the overall costs of the legal action, up to and including the trial, will be about £1.8m for Meghan and £1.2m for ANL.
Last month, the duchess won an earlier round in the legal action after Mr Justice Warby ruled in her favour over protecting the identities of five of her friends who gave an anonymous interview to a US magazine.
After the ruling, a spokesperson for Schillings, lawyers acting for the duchess, said the Mail on Sunday “has been allowed to prolong this action and try contending its amended defence at trial, where we have no doubt it will fail. This defence has no merit and is in fact false.”
They continued: “This latest hearing was unfortunately another step in a case that has already been drawn out by a defendant who uses the legal process to exploit the duchess’s privacy and the privacy of those around her for profit-motivated clickbait rather than journalism.”
• This article was amended on 30 September 2020 because an earlier version misspelled the first name of Antony White QC, as Anthony. This has been corrected.