Meghan, 39, is suing Associated Newspapers (ANL), publisher of the Mail on Sunday and MailOnline, over an alleged privacy breach when extracts of a handwritten letter she sent to her father, Thomas Markle, were published in February 2019.
She claims the letter was private and never for public consumption, bringing a High Court claim for damages from the newspaper group.
In the latest legal tussle, ANL applied to amend its defence to the Duchess’s claim, to argue that she had “co-operated with the authors of the recently published book Finding Freedom to put out their version of certain events” and therefore undermined her claim to privacy.
The book, by American-based Royal reporters Carolyn Durrand and Omid Scobie and published by HarperCollins, presents a biography of the Duke and Duchess of Sussex, including their marriage, moves away from the traditions of the Royal Family, and their departure to the US.
At a hearing this afternoon, Master Francesca Kaye said the allegation that Meghan had fed information to the authors may quickly collapse at trial, but ruled the newspaper group was entitled to advance the argument in its defence at trial.
She said Meghan’s lawyers had argued the court was being “hoodwinked into thinking there’s more to the proposed amendments than we think there is”, but concluded the argument could be ventured.
“There is always the risk with an inferential case that it will fall apart at an early stage if the inferences start to unravel”, she said. “But these are clearly matters for the trial judge.”
The judge said one of the authors, Mr Scobie, has denied in a statement to the court that there was any contribution from Meghan, but found it was not a “knock-out blow” to ANL’s amended defence case.
“It may be what it does not say rather than what it does say that might prove to be significant at trial”, she said of Mr Scobie’s statement, adding of the new accusations levelled at Meghan: “If, as suggested, it’s all a house of cards, it will quickly fall down at trial.”
At a hearing last Monday, Justin Rushbrooke QC, for Meghan, insisted: “The claimant and her husband did not collaborate with the authors on the book, nor were they interviewed for it, nor did they provide photographs to the authors for the book.”
He argued the book had merely drawn on the articles published by ANL which referred to the letter to Mr Markle, and information which the Duchess is accused of providing to the authors are in the public domain from other sources.
Antony White QC, for ANL, said Finding Freedom gave “every appearance of having been written with their (Meghan and Harry’s) extensive co-operation”.
In her ruling today, Master Kaye said Meghan’s arguments at trial should not be substantially altered by the new allegations being levelled at her by ANL,
“She says she has nothing to do with the information in the public domain, whether directly or indirectly”, she said.
“(She says) the letter was and remains a private letter to her father and she is entitled to her privacy. She says in simple terms ‘it wasn’t me and had nothing to do with me’. If that’s the case, it’s a simple case from an evidential point of view.”
The legal skirmish over the amendment to the defence case has cost the Duchess of Sussex nearly £180,000, the court heard.
She has spent £139,000 and was ordered today to pay £39,000 of the newspaper’s £45,000 costs bill after losing today’s ruling.
At a previous stage of the legal battle, Mr Justice Warby agreed with the Duchess’ insistence that the identities of five friends who had spoken to a US magazine about her should not be revealed.
The names appeared on a confidential schedule in the court case, and the judge agreed that they should remain anonymous at this stage of proceedings.
The case centres on five articles – two in the Mail on Sunday and three on MailOnline – which were published in February 2019. Master Kaye said last week “excessive” costs have already been run up on the case, which is due to go to trial in January next year.