The eighth judgment has been handed down in this case, for which the counsel teams included Jessie Bowhill for the Duchess of Sussex and Isabel Jamal for Associated Newspapers.
The underlying action concerns the publication by Associated Newspapers in the Mail on Sunday and in MailOnline of extracts of a handwritten letter sent by The Duchess of Sussex to her father, Thomas Markle. A number of issues had been resolved in prior judgments.
The remaining question of substance was the authorship and ownership of the copyright in the handwritten letter and in its drafts, which had been held in an earlier summary judgment to have been infringed by Associated Newspapers. It had been suggested that a member of the Kensington Palace Communications Team, Jason Knauf, may have been involved in the creation of the electronic draft of the letter, and so copyright may have been partly owned by him or by the Crown.
Since the earlier summary judgment application, Mr Knauf had stated that he did not draft or assert copyright over any of the content of the letter, and it was separately confirmed that the Crown made no claim to copyright either. In this judgment Lord Justice Warby (sitting as a Judge of the High Court) held that there was no reason for the issue to go to trial, and unqualified summary judgment on liability for copyright infringement was entered for the Duchess.
An order had been made for publication in the Mail on Sunday and MailOnline of a notice reflecting the Duchess’s success in the claim. Warby LJ made consequential amendments to the wording of that notice and made an order for delivery up to the Claimants’ solicitors of the offending articles and all complete copies of the letter. The issue of financial relief in respect of The Duchess’ claim for misuse of private information was adjourned off until after the Court of Appeal determines Associated Newspapers’ application for permission to appeal, and directions were made for hearing the claim for an account of profits for copyright infringement in October 2021.
The Duchess was awarded costs on the indemnity basis for the present summary judgment application because Associated Newspapers should have conceded the copyright ownership point once it was clear that Mr Knauf and the Crown made no claim for such ownership. However, the claim by the Duchess for indemnity costs on the remaining costs of the earlier summary judgment application was refused on the basis that the viewpoint that the Defendant had taken about the possibility that Mr Knauf and/or the Crown were owners of copyright in the Letter could not be categorised as unreasonable.