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Royal legal cases: what if Harry and Meghan lose?

The Sussexes’ legal pursuits are less the straw that broke the camel’s back and more a gesture of defiance

Although it hasn’t even begun yet, the impending legal action brought by the Duchess of Sussex against Associated Newspapers for invasion of privacy has managed to excite public interest in a fashion that suggests that the eventual case, if it happens, will resemble a contemporary version of a Barnum & Barnum circus. The reason for the action being brought was the Mail on Sunday publishing a letter written by Meghan’s estranged father Thomas Markle in August 2018, which the Duchess decided represented a breach of her copyright.

This case seems less the straw that broke the camel’s back and more a set-piece gesture of defiance

Given the fascination – or prurience – with which the international media have reported her every move, utterance and surmised thought since she was first linked to Prince Harry, this seems less the straw that broke the camel’s back and more a set-piece gesture of defiance. In an ideal world, the case would have been settled out of court by now, and this particular gesture of regal power would have been a warning to other newspapers and media outlets to back off – or else.

Unfortunately, the Duchess does not live in an ideal world, any more than the rest of us do, and so far they have not been having a particularly successful time of it when it comes to the case. In late April, Mr Justice Warby struck out several of the allegations, including the idea that Associated Newspapers had acted with an “agenda” of publishing intrusive and dishonest stories, that they had been “dishonest” in omitting various sections of the letter and that they had “stirred up” antagonism between Meghan and Thomas Markle. He also went on to state that:

Some of the allegations are struck out as irrelevant to the purpose for which they are pleaded. Some are struck out on the further or alternative ground that they are inadequately detailed. I have also acted so as to confine the case to what is reasonably necessary and proportionate for the purpose of doing justice between these parties. I do not consider that the allegations struck out on that basis go to the ‘heart’ of the case, which at its core concerns the publication of five articles disclosing the words of, and information drawn from, the letter written by the claimant to her father in August 2018.

Although the next court battle went in Meghan’s favour, as she won the right for five of her friends to remain anonymous in court proceedings, the most recent development has been another significant blow to the Duchess’ case. Earlier this year, the book Finding Freedom was published and it swiftly became a bestseller, thanks in part to a high-profile front-page serialisation in The Times. Interest in the book quickly centred around the idea that its authors, Omid Scobie and Carolyn Durand, had been given direct access to Harry and Meghan, with the book being a virtual ghost-written testament to their thoughts and beliefs. The Mail on Sunday therefore argued that this was germane to their defence, and explicitly asked to amend their written statement to state that the Sussexes had co-operated with the book’s publication, and indeed had given the authors information about Thomas Markle’s August 2018 letter “in order to set out her own version of events in a way that is favourable to her”.

Even in the event of a legal victory, enormous damage will have been done to Brand Sussex

Although Meghan’s lawyer Justin Rushbrooke QC argued that “the claimant and her husband did not collaborate with the authors of the book, nor were they interviewed for it, nor did they provide photographs to the authors for the book”, Judge Francesca Kaye allowed the newspaper to amend its defence, noting that this added “further particulars” to the case, that Meghan “knows the case she has to meet” and that “there is no suggestion that she is in fact unable to do so”. Although the firm of solicitors that she is using, Schillings, responded robustly, accusing the newspaper of “profit-motivated clickbait rather than journalism” and bemoaning their attempts to “prolong this action and try contending its amended defence at trial, where we have no doubt it will fail”, their conclusion that “this defence has no merit and is in fact false” suggested a confidence that has not so far been shared by other commentators and observers.

Newsweek recently ran a feature that quoted various “experts” making the point that the potential damage that Meghan’s reputation will suffer if the case continues, and various wounding disclosures are made in court, is vastly greater than any perceived hurt caused by the original publication of the letter. Even in the event of a victory against Associated Newspapers, enormous damage will have been done to Brand Sussex: at a time when they are attempting to establish themselves outside of the confines of the Royal Family, these things matter both personally and professionally.

Traditionally, the monarchy has avoided being drawn into court cases. The old motto “never complain, never explain” has usually been the watchword, even when obvious sensational and speculative pieces were being written, most notably during the abdication of Edward VIII and his subsequent existence as Duke of Windsor. Yet the growing intrusions of the tabloid press in the Eighties and Nineties, especially where Princess Diana was concerned, led to legal action either for breach of copyright or invasion of privacy.

In most cases, the complaints were settled out of court, often for considerable sums of money. Diana took legal action against the Daily Mirror in 1995 for publishing photographs of her exercising in a Kensington gym, and obtained her legal costs of £1 million, as well as a £200,000 donation to charity. Most recently, the Duke and Duchess of Cambridge sued the French magazine Closer in 2012 for publishing topless photographs of her, winning 100,000 Euros in damages five years later: considerably less than the punitive £1.5 million that their lawyers had argued for.

The Duke and Duchess of Sussex have deliberately torn up precedent ever since their marriage

The only case that has ever made it to court with a royal plaintiff before now was in 1990 and involved Princess Margaret’s son the-then Viscount Linley. (The future Edward VII appeared as a witness in a slander case a century before, in 1891.) Linley had been accused by the Today newspaper of being thrown out of the Ferret and Firkin pub in Chelsea for acting in a drunken and disorderly fashion, and he sued for libel, winning £35,000. While some would have argued that it was beneath the dignity of a man who was then twelfth in line to the throne to bring the case, Linley was offended by the story’s portrayal of him as a “hooray Henry” and so successfully argued that he had never behaved in this fashion.

The Duke and Duchess of Sussex have deliberately torn up precedent ever since their marriage – itself an extraordinary occasion in many ways, not least the exuberant sermon preached by Bishop Michael Curry, a world removed from the more measured utterances of the Rowan Williamses and Justin Welbys of the Anglican church. Their quasi-abdication at the beginning of the year might have nodded to historical precedent, but their new life in California gives every appearance of their wishing to enjoy enormous financial rewards, while maintaining the privacy and respect that members of royalty have traditionally been entitled to. This cake eating-and-having may well be impossible.

Edward’s once fanciful ideas of how to conduct himself now seem like the model of decorum

It seems extremely unlikely that they are going to back away from the legal action now, especially as Associated Newspapers show no signs of offering an out-of-court settlement, with or without an admission of guilt. And there are still many developments yet to come. But it is hard not to feel that the running has not been going especially well for them so far, which raises the possibility that this could be the first royal legal action that ends up being lost, in which case a deeply embarrassing precedent would be set. Edward VIII, after his short-lived reign, reflected that he wanted to “to throw open the windows a little” and “to broaden the base of the Monarchy a little more”. For all of the attendant controversies that he faced with his modernising attitudes, he never involved his family in a protracted and very public court case. With his great-great nephew and his wife being plaintiffs in the highest-profile legal action that the monarchy has ever been involved in, Edward’s once fanciful ideas of how to conduct himself now seem like the model of restraint and decorum.

Once again, “never complain, never explain” becomes less a maxim from the past, and more an injunction that, perhaps, the litigious former royals should have paid more careful attention to.

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