The recent appeal by Meghan Markle has now been decided. A summary of the previous decision can be found in the previous blogs located here and here.
Meghan Markle’s privacy case – Court of Appeal judgment
In summary, Meghan Markle succeeded in an application for summary judgment against the newspaper. The Court helpfully summarised what it must consider for a summary judgment application to succeed as follows:
“He adjusted the 7 principles to be taken from that case as follows:
i) The court must consider whether the [defendant] has a “realistic” as opposed to a “fanciful” prospect of success;
ii) A “realistic” [defence] is one that carries some degree of conviction. This means a claim that is more than merely arguable …
iii) In reaching its conclusion the court must not conduct a “mini-trial” …
iv) This does not mean that the court must take at face value and without analysis everything that a [defendant] says in his statements before the court. In some cases, it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents …
v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial …;
vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case …;
vii) On the other hand, it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent’s case is bad in law, he will in truth have no real prospect of … successfully defending the claim against him … Similarly, if the applicant’s case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although the material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: …”
The newspaper appealed on a number of grounds, including seeking to admit new evidence that Mrs Markle knew that relevant information had been passed to an author of a book by the Kensington Palace Communications Team. The Court of Appeal helpfully released a summary of the judgment for the press, which confirms:
“The Court of Appeal rejected Associated Newspapers’ arguments that the judge had (a) applied the wrong legal test in deciding where the balance lay between the Duchess’s article 8 rights in the Letter and the rights of Mr Markle and Associated Newspapers to freedom of speech under article 10 ([87]-[95]), and (b) failed properly to evaluate Associated Newspapers’ defences to the Duchess’s breach of the copyright claim: first, fair dealing in reporting current events, and secondly the public interest in reporting the Letter ([96]-[103]). It was common ground that the judge had correctly stated the legal principles that were applicable to the question of whether summary judgment should be granted ([29]-[32]).
The Court of Appeal commented that the new evidence that had been provided to it had also been widely publicised in the press, nationally and internationally [68]. In those circumstances, it decided that the new evidence should be admitted as a matter of pure pragmatism, even though it was more directed to the drafting of the Letter and to what the Duchess knew about the contacts between the Kensington Palace Communications Team and the authors of the book, “Finding Freedom” (the Book) than to the issues in the appeal [70].”
The Court, therefore, found in favour of Mrs Markle. The leading judgment was given by Sir Vos, stating that:
“Essentially, whilst it might have been proportionate to disclose and publish a very small part of the Letter to rebut inaccuracies in the People Article, it was not necessary to deploy half the contents of the Letter as Associated Newspapers did. As the Articles, themselves demonstrate, and as the judge found, the primary purpose of the Articles was not to publish Mr Markle’s responses to the inaccurate allegations against him in the People Article. The true purpose of the publication was, as the first 4 lines of the Articles said: to reveal for the first time [to the world] the “[t]he full content of a sensational letter written by [the Duchess] to her estranged father shortly after her wedding”. The contents of the Letter were private when it was written and when it was published, even if the claimant, it now appears, realised that her father might leak its contents to the media.”
Comment
Any individual that is keen to bring their dispute to an end quickly, should consider the above easy-to-understand criteria and decide whether they wish to take the chance in applying for summary judgment. I say ‘take the chance’ because there is never a guarantee that summary judgment will succeed. The default position is that cases should be properly tried and witness evidence heard before a case is determined. Therefore, there needs to be a good reason for deviating from this position. The Court will only do so when the Claimant’s or Defendant’s case, when taken at its highest, is fanciful or unrealistic. If an applicant fails in a summary judgment application, they will be responsible for the costs of the application. These can be quite substantial and accordingly applications for summary judgment are generally quite rare.
It is also interesting the Court’s pragmatic approach to new evidence being admitted where it is as a matter of fact already widely reported. The Court viewed refusal of admittance of the evidence as being artificial where the Judges will most likely have seen the evidence in press in any event.
How Nelsons can help
Kevin Modiri is a Partner in our expert Dispute Resolution team.
Should you be affected by any issues surrounding a breach of your privacy or wish to discuss a summary judgment application, you should not hesitate to contact Kevin or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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