Two consequential judgments have been handed down following the recent summary judgment application made by HRH The Duchess of Sussex against Associated Newspapers on issues within her claim for copyright infringement.
The proceedings had concerned the publication by the Defendant in the Mail on Sunday and MailOnline of extracts of a handwritten letter sent by The Duchess of Sussex to her father, Thomas Markle. The court decided that publication of the letter constituted a misuse of her private information and an infringement of her copyright. Both judgments largely concern the form of remedies to be awarded to the Duchess of Sussex from that summary judgment application.
In the first consequential judgment ( EWHC 510 (Ch)), handed down on 5 March 2021, Jessie Bowhill acted in the counsel team for HRH The Duchess of Sussex and Adrian Speck QC and Isabel Jamal acted in the counsel team for Associated Newspapers Limited resisting the application.
Lord Justice Warby made a declaration to the effect that Associated Newspapers had misused the Duchess of Sussex’s private information and infringed her copyright by publishing extracts of the letter in the Mail on Sunday and in MailOnline. The basis for granting a declaration was that there is real value in a short and pithy formal summary of the effect of the long and detailed Summary Judgment, which carries the authority of the court, and is not open to misinterpretation. This was so even though the criticisms by the Duchess of Sussex of the newspaper reports and commentary about the Summary Judgment were overstated.
Lord Justice Warby also made an order for publication in the Mail on Sunday and on MailOnline of a notice in terms proposed by Associated Newspapers which he held reflected the Duchess’s success on the specific issues in the copyright claim which had been resolved in her favour.
An injunction was granted to restrain publication of the Duchess’s private information, save for a ‘public domain proviso’ that it would not be a contempt of court to publish the information in the context of a court report, given that all the words complained of and more were contained in the Summary Judgment itself. A final injunction in copyright was not granted because the issue of copyright ownership was yet to be resolved, and because no application had been made for any interim injunction. such an injunction.
Associated Newspapers’ application for permission to appeal was refused. The remaining issues of copyright ownership and the financial remedies due to the Duchess of Sussex are to be determined at a further hearing.
In the hearing leading to the second consequential judgment ( EWHC 669 (Ch)), handed down on 22 March 2021, Jessie Bowhill acted in the counsel team for HRH The Duchess of Sussex. The judgment concerned the publication order and the public domain proviso.
Associated Newspapers successfully resisted the inclusion of a reference to ‘fair and accurate’ reporting in the public domain proviso. It had not been the intention of the judge to limit reporting in such a way, in part because no yardstick is available for ‘unfair comment’.
Regarding the publication order, Warby J preferred Associated Newspapers’ submissions that the notice to be published in the Mail on Sunday should be in a smaller font than that used for the front-page trailer to the original article, because the notice contains five times as many words and so would take up a much greater proportion of the front page. A notice was also ordered to be published on MailOnline for 24 hours on the home page and an additional 6 days on a news page.
Associated Newspapers were denied permission to appeal against the publication order, though a stay was granted pending their application for permission to appeal on this point to the Court of Appeal.