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The Duchess of Sussex’s letter to her estranged father was written “to defend her against charges of being an uncaring or unloving daughter”, the Mail on Sunday’s lawyers have told the High Court.
Meghan, 39, is suing the publisher of The Mail On Sunday and MailOnline over a series of articles which reproduced parts of the handwritten letter sent to 76-year-old Thomas Markle in August 2018.
She is seeking damages for alleged misuse of private information, copyright infringement and breach of the Data Protection Act over five articles, published in February 2019, which included extracts from the “private and confidential” letter to her father.
Her lawyers say the publication of an “intrinsically private, personal and sensitive” letter was a “plain and serious invasion” of her privacy and argue Associated Newspapers Limited (ANL) has “no prospect” of defending her privacy and copyright claims.
However, ANL claims Meghan wrote the letter “with a view to it being disclosed publicly at some future point” and that she was “at least in some measure prepared for the information to be disclosed”.
The duchess is applying for “summary judgment”, a legal step which would see those parts of the case resolved without a trial, in relation to her claims for misuse of private information and breach of copyright.
But, at a two-day remote hearing on Tuesday, ANL’s barrister Antony White QC argued that “there is a very real question as to whether the claimant will be able to establish that she had a reasonable – or any – expectation of privacy”.
Mr White said in written submissions that Meghan’s admission she had “a fear” that her letter to her father might be intercepted showed that “she must, at the very least, have appreciated that her father might choose to disclose it”.
He also referred to the involvement of the Kensington Palace communications team before the letter was sent, saying: “No truly private letter from daughter to father would require any input from the Kensington Palace communications team.”
Justin Rushbrooke QC, representing the duchess, earlier described the hand-written letter as “a heartfelt plea from an anguished daughter to her father”, which was sent to Mr Markle at his home in Mexico via “the claimant’s accountant … to minimise the risk of interception”.
He said the “contents and character of the letter were intrinsically private, personal and sensitive in nature” and that Meghan therefore “had a reasonable expectation of privacy in respect of the contents of the letter”.
Mr Rushbrooke added in written submissions: “It is as good an example as one could find of a letter that any person of ordinary sensibilities would not want to be disclosed to third parties, let alone in a mass media publication, in a sensational context and to serve the commercial purposes of the newspaper.”
The barrister argued that “there is no real prospect of the defendant establishing that the claimant had no reasonable expectation of privacy in relation to the contents of the letter and the defendant’s contentions to the contrary are utterly fanciful”.
Mr Rushbrooke continued that, even if ANL was justified in publishing parts of the letter to Mr Markle, “on any view the defendant published far more by way of extracts from the letter than could have been justified in the public interest”, saying the Mail’s “use of the letter was and is manifestly disproportionate”.
But Mr White said in ANL’s written case that Meghan’s “status as a member of the royal family whose familial and personal relationships are in the public eye” was relevant.
He added that the “admitted falsity” of an article about Meghan in People magazine, which ANL says brought the letter to her father into the public domain, meant Mr Markle “was not only entitled to correct public information about the letter and the reply, it was in the public interest that (he) did so”.
Mr White argued: “Mr Markle has a right to tell his story of his relationship and communications with his daughter … no US court would stop him from doing so, and he could have and could still, whatever the outcome of this case, speak to the US media on this topic at any time.”
In relation to Meghan’s copyright claim, Ian Mill QC, also representing the duchess, argued that “she and she alone” created a draft of the letter to her father “which she then transcribed by hand”.
He argued the letter to Mr Markle was “an original literary work in which copyright subsists and is owned by the claimant” and asked the court to “grasp the nettle and decide the issue at this hearing”.
But Mr White argued there is “a real prospect that the claimant will fail to establish either that she was the sole author in the copyright sense” as a result of the involvement of Jason Knauf, formerly communications secretary to the Duke and Duchess of Sussex, in writing the letter.
The full trial of the duchess’s claim was due to be heard at the High Court this month, but last year the case was adjourned until autumn 2021 for a “confidential” reason.
The remote hearing before Mr Justice Warby is due to last two days and it is expected he will reserve his judgment to a later date.