It comes as Associated Newspapers Limited (ANL), which is also the publisher of MailOnline, began its appeal against a High Court ruling that found the MoS had breached privacy and copyright laws by printing parts of the letter that Meghan sent to her estranged father, Thomas Markle.
Lawyers for ANL told senior judges at the Court of Appeal they want to rely on new evidence from Jason Knauf – former communications secretary to the Duke and Duchess of Sussex – which suggests Meghan suspected her father may at some point disclose the letter to the media.
Specifically, ANL’s legal team will focus on the idea the letter was “written with public consumption in mind”, the appeal, due to run for three days, heard.
Meghan sued ANL over a series of articles which reproduced parts of the “personal and private” letter in August 2018. She claimed the five articles, published in print and online in February 2019, misused her private information, infringed her copyright and breached the Data Protection Act.
The duchess won her case earlier this year after Lord Justice Warby ruled that ANL’s publication of the letter, in which the royal criticised her father’s dealings with the media in the run-up to her wedding to Prince Harry, was “manifestly excessive and hence unlawful” in a summary judgment – avoiding the need for a trial.
However, Andrew Caldecott QC, launching ANL’s challenge on Tuesday, said Mr Knauf’s evidence calls into question whether the letter should really be considered a private document “for her father’s eyes only”.
“The letter was crafted specifically with the potential of public consumption in mind because the claimant appreciated Mr Markle might disclose it to the media,” he argued.
Mr Caldecott also said Meghan’s father – who provided the MoS with the letter – was unhappy at media depictions that he was “cold-shouldering” his daughter, and that its publication and his views on it represented a form of right to reply.
The letter was part of a “continuing debate on a matter of public interest,” the court was told, with the publication redressing the balance in other media accounts.
“We say there was a difference between what Mr Markle said and what he was presented as saying,” the barrister added, after claiming text messages between Meghan and her father from before the wedding disproved suggestions he had not been in touch.
Mr Caldecott concluded: “The defendant submits it has a strongly arguable case that, by the time of the publication of the articles, the claimant no longer had a reasonable expectation of privacy of the text of the letter.”
After ANL’s initial claims, master of the rolls Sir Geoffrey Vos, hearing the case, called for specific grounds for overturning the previous ruling and warned against the appeal being “diffuse and unfocused”.
The duchess’ legal team will refute the plea before Sir Geoffrey later this week, and are set to argue that the initial judge reached the right conclusion.
They will also object to the introduction of Mr Knauf’s new evidence and say that, if the court accepts his statement, Meghan will put forward new evidence too.
Having won the initial case, the mother-of-two called the ruling a victory against “dehumanising” media behaviour. “The damage they have done and continue to do runs deep,” she said in February this year.
ANL was ordered to print a statement on the MoS’s front page the following month – as well as a notice on page three of the paper – officially stating it had “infringed her copyright” by publishing parts of Meghan’s letter to Mr Markle.
This has, however, been put on hold pending the outcome of the appeal.