The Duchess of Sussex has demanded that the Mail on Sunday publish a front-page apology and pay up £750,000 of down-payment towards her legal costs, after her “comprehensive win” in legal action against newspaper’s publisher last month.
She sued Associated Newspapers Limited (ANL), the publisher of the Mail on Sunday and MailOnline, over a series of articles which reproduced parts of the letter sent to her father in August 2018.
The High Court granted summary judgement in relation to her privacy claim, which means she won that claim without having to go to trial, as well as most of her copyright claim.
Ms Markle’s lawyer, Ian Mill QC, applied for an injunction to “restrain the acts of copyright infringement and misuse of private information” at a remote hearing on Tuesday.
In written submissions, he said: “This case is a paradigm example of one in which there is a very real need for an injunction.
“It is required in order to protect the claimant’s rights and stop the continuing acts of infringement.
“The defendant has offered no undertaking, the defendant has failed to deliver up copies it has of the letter such that the threat to infringe and further to misuse her private information remains real and, inexplicably, the defendant has still not removed the infringing articles from MailOnline.
“This is in the face of a judgment which has found, in the clearest possible terms, that the defendant’s acts of publishing those articles infringes the claimant’s rights.
“Accordingly, at the time of writing, the defendant defiantly continues to do the very acts which the court has held are unlawful,” he added.
He also sought an order for ANL to publish a statement about the duchess’ victory on the front page of the Mail on Sunday and the homepage of the MailOnline “to act as a deterrent to future infringers”.
She was also willing to “cap her damages” for misuse of private information at a “nominal award”, said Mr Mill, to “avoid the need for the and cost to be incurred in debating these issues”
Antony White QC, representing ANL, said his client planned to appeal against the summary judgement ruling, arguing it “would have a real prospect of success”.
He said Ms Markle’s withdrawal of her claim for damages, instead seeking nominal damages, was “a radical change of position”, adding in relation to her request for nominal damages: “It is suggested that £1, £2, or £5 would do.”
Mr White also argued that any order requiring ANL to hand over copies of the letter should be put on hold until any appeal against the judgement could be determined.
ANL’s proposed grounds of appeal argued that the High Court failed to assess the facts the publisher relied on as “undermining or diminishing the weight of the claimant’s privacy right”.
In his ruling last month, the judge ruled that the publication of Ms Markle’s letter to her father was “manifestly excessive and hence unlawful”.
The judge, now Lord Justice Warby, following his promotion to the Court of Appeal, said: “It was, in short, a personal and private letter. The majority of what was published was about the claimant’s own behaviour, her feelings of anguish about her father’s behaviour, as she saw it, and the resulting rift between them.
“These are inherently private and personal matters.”
He said “the only tenable justification for any such interference was to correct some inaccuracies about the letter”, contained in an article in People magazine, published just days before ANL’s five articles.
But he added: “The inescapable conclusion is that, save to the very limited extent I have identified, the disclosures made were not a necessary or proportionate means of serving that purpose.
“For the most part they did not serve that purpose at all. Taken as a whole the disclosures were manifestly excessive and hence unlawful.”
Lord Justice Warby also said ANL’s arguments on ownership of the copyright of the letter “seem to me to occupy the shadowland between improbability and unreality”.
The hearing before Lord Justice Warby is expected to conclude on Tuesday and it is not known if he will give a ruling today or reserve it until a later date.