Duchess of Sussex's legal battle with Mail on Sunday branded 'tortuous' by judge

A High Court judge branded arguments in the Duchess of Sussex’s legal case against the Mail on Sunday as "tortuous".

Lord Justice Warby ruled that the Duchess, 39, won her copyright claim after a letter sent by former aide Jason Knauf "emphatically" denying ownership of a letter she wrote to her father rendered the newspaper’s case "unreal".

In a ruling explaining his decision, the judge noted that it was his eighth judgment in the case and appeared to criticise both sides about the lengthy courtroom tussles on every point.

Summarising a long-winded argument about the misuse of private information claim, he referred to one response as "the final twist (so far) in this tortuous story".

The Duchess successfully sued Associated Newspapers for breach of privacy and copyright in relation to the publication of five articles featuring extracts of the letter sent to her estranged father, Thomas Markle, in February 2019.

Earlier this year she won a summary judgment - a legal step negating the need for witness evidence - in relation to the privacy claim and the bulk of the copyright claim.

Lord Justice Warby last week awarded a summary judgment on the outstanding copyright claim.

The Duchess’s legal team applied for indemnity or higher costs after they were copied in on a series of emails sent from the Mail on Sunday’s legal team to Mr Knauf’s lawyers in error.

Meghan, 39, had revealed that when drafting the letter to her estranged father, Mr Knauf "provided feedback" in the form of "general ideas".

Associated Newspapers suggested she had sought professional advice because she knew the letter would be made public and was intended for use as part of a media strategy to enhance her image.

However, the High Court heard that Associated Newspapers admitted in correspondence last November that it was "hamstrung" in proving its point as it had been given no information about the way the letter was drafted.

A second email, sent three days later, confirmed that their lawyers "simply did not know whether or not Mr Knauf had helped with the drafting of the letter".

A further email, which was said to "reveal the defendant’s desperation", referred to unanswered voicemail messages begging for a response and noting the fast approaching deadline for evidence.

The Duchess’s lawyers said the emails proved that the newspaper knew it did not have a strong case and as such had acted improperly, saying it should never have been put on record.

Mr Knauf eventually wrote to the newspaper’s lawyers in April "emphatically" denying having any copyright claim to the letter.

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He confirmed that despite making a "very minor suggestion" that the Duchess include a reference to her father’s ill health, he did not co-write the letter. As such, he said he had no wish to become a party to ongoing legal proceedings.

The judge said he had originally concluded that the newspaper’s case "lay between the improbable and the unreal", but did require further enquiry.

However, the judge said that Mr Knauf’s letter, when it eventually appeared, demonstrated that the case was unreal. "That is the position with the benefit of hindsight," he said.

The judge concluded that Associated Newspapers had "conducted itself in a way that is outside the norm" by refusing to accept for three weeks that Mr Knauf’s letter had dealt a final blow to its case.

He said the newspaper’s case on copyright had been "reduced to a speculative hypothesis, founded on hearsay from an unknown source, which lacks corroboration and is contradicted by both the key individuals".

He concluded: "There is no reason, compelling or otherwise, for this issue to go to trial."

He awarded the full costs of the second summary judgment application to the Duchess, as well as the outstanding 10 per cent from the first application, for which he had already ruled Associated Newspapers must pay 90 per cent.

The judge also ruled that the newspaper group must "use its best endeavours" to locate any copies of the draft of the Duchess’s letter and hand them over to their lawyers to destroy them at the end of the case.

Associated Newspapers was also ordered to provide information about its revenues and expenses ahead of a hearing in October that will deal with an "account of profits" the publisher made as a result of infringing on the Duchess’s copyright.

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