An 11th-hour intervention, an admission of forgetfulness, and an apology to the court; the potentially explosive developments in the Duchess of Sussex’s privacy case against the Mail on Sunday offered much drama this week.
And it may be far from over. Associated Newspapers Ltd (ANL) wants the court of appeal to overturn a judge’s ruling that the Mail on Sunday and Mail Online breached the duchess’s privacy in publishing extracts of her letter to her estranged father Thomas Markle, 77, and for the issues to go to trial.
It is a nightmare scenario the royal couple would, undoubtedly, be keen to avoid.
“The toll of a trial must be a more daunting prospect for the duchess than for Associated Newspapers. A public trial for the duchess would mean she (and possibly Prince Harry) would almost certainly have to give evidence and be cross-examined on aspects of her private life, as would her father and friends,” said Persephone Bridgman Baker, a senior associate at leading law firm Carter-Ruck.
“No doubt this is one of the possibilities that is driving Associated to so belligerently defend the claims: the press coverage of any trial would be akin to that which we saw in the recent Johnny Depp case.”
Meghan would have been warned of the risks by her legal team at the outset, she said. “Given what is at stake, and the costs already expended in reaching this stage of proceedings, it seems inevitable that Associated would at least seek permission to appeal to the supreme court in the event that the court of appeal find in the duchess’s favour.”
Meghan won her privacy case in February when Lord Justice Warby, ruled in the high court that ANL’s publication was unlawful in a summary judgment – which avoided the need for trial – based on the grounds the publisher had no real prospect of success.
In the court of appeal, ANL has challenged that ruling, arguing the case should go to trial. They claim Meghan had forfeited any automatic right to privacy over the letter, alleging she collaborated in sharing details of her life with the authors of the Sussex’s biography, Finding Freedom, and that she had written the five-page letter with the possibility it might be leaked in mind.
ANL argues it was prevented from exploring these issues at trial by the summary judgment.
Enter Jason Knauf, 39, erstwhile “trusted adviser” to the Sussexes and their former communications chief. For a year he resisted ANL’s attempts to draw him, and other former senior staff of the Sussexes known as the “Palace Four”, into proceedings, insisting on a position of “neutrality”.
Knauf, currently head of the Duke and Duchess of Cambridge’s royal foundation but due to stand down in December, is the aide who filed bullying complaints made by two staff members against the duchess. The allegations, which she denies, came to light a month after the summary judgment and a week before the couple’s Oprah Winfrey interview.
Knauf’s September 2021 witness statement to the court of appeal was made after he told a “source” he “regretted” not previously providing a statement, according to evidence by Keith Mathieson, a lawyer representing ANL.
The evidence unleashed emails and texts showing Meghan told Knauf she addressed her letter “Daddy” as “in the unfortunate event that it leaked it would pull at the heartstrings”, and “everything I’ve drafted is with the understanding that it could be leaked”.
Of writing the letter, she said: “Honestly Jason, I feel fantastic. Cathartic and real and honest and factual. If he leaks it, that’s on his conscious [sic] but at least the world will know the truth. Words I could never voice publicly.” In another she wrote: “Trust me, toiled over every detail of the letter which could be manipulated.”
In texts, released by the court, Meghan explained she chose to write a letter to her estranged father to protect Prince Harry from “constant berating” from the royal family to do something to stop Thomas Markle talking to the press. A letter was better than an email or text as it “does not open the door for a conversation,” she texted Knauf.
Knauf also said she sent him briefing notes ahead of him meeting with the authors of Finding Freedom, with details including on her relations with her half-siblings. This appeared to contradict a 17 November 2020 statement by the duchess’s lawyers that “the claimant [Meghan] does not know if, and to what extent, the communications team were involved in providing information for the book …”
In response, Meghan made a witness statement in which she apologised for not remembering those exchanges, stressing she had “absolutely no wish or intention” to mislead, and felt the exchanges “strongly support” her case. The briefing notes were “reminders” only of information Knauf already had, a “timeline” of her family so he would answer media inquiries. They were not “special or exclusive”, just “general background factual information”, and “a far cry from the very detailed personal information” ANL alleged she “wanted or permitted” to be put into the public domain.
Elliot Fry, managing associate, at Cripps Pemberton Greenish said that the fact that it would merely result in the case going back to the lower court made the prospect of the appeal succeeding more likely. But, he said, the evidence Meghan expected her letter to be leaked did not forfeit her privacy rights. “That doesn’t mean that you want that letter to be leaked or that you don’t have a reasonable expectation that it wouldn’t be leaked.”
Mark Stephens, a partner at Howard Kennedy, said he believed there was a 60-65% chance of the court of appeal saying “there’s more to this than meets the eye and it should go to a trial so the judge can make a careful evaluation of the evidence to conclude where the truth lies.”
But Sailesh Mehta, a human rights barrister, said the revelations about Meghan’s briefings to the authors or an unauthorised biography through her aide were likely to be seen as a “sideshow” by the court of appeal justices. “Over the last 40 years, the pendulum has swung sometimes in favour of the press and sometimes in favour of the private individual. The current state of play is that it is on the side of the right to privacy and is unlikely to swing back in favour of the press with this case.
The court of appeal will announce its ruling at a later date.