Thread by @JoshuaRozenberg

Currently waiting for the latest round of Duchess of Sussex v Associated Newspapers to begin (remotely). She seeks summary judgment I won’t be live-tweeting for two days but I’ll be keeping an eye on it.

My backgrounder (for subscribers to my blog) here: rozenberg.substack.com/p/duchess-seek…

Duchess is represented by Ian Mill QC, Justin Rushbrooke QC, Jane Phillips and Jessie Bowhill.

Although there are more than 60 journalists and others watching, the case is not being live-streamed on a public website.

There will be no witnesses: just two days of legal argument.

As far as I can see, Antony White QC remains leading counsel for Associated Newspapers.

Hearing begins on time. Court associate warns against recording. Mr Justice Warby reiterates the warning against visual and audio recordings by the public (including screenshots).

Ian Mill opens.

(Adrian Speck QC also appears for Associated Newspapers)

Nobody is wearing robes

Justin Rushbrooke QC was due to open on the privacy issues but his connection has frozen. He’s probably speaking but nobody can hear him.

He is now back, but on mute.

Rushbrooke can finally be heard: “Our primary position is that the defence as pleaded discloses no reasonable grounds for defending the claim. On the facts, there is no real prospect of success on the defendant’s part.”

Rushbrooke QC is arguing that publication of the duchess’s letter is a breach of her privacy under domestic law and under article 8 of the human rights convention.

Here’s the key quote from his written submissions:

This case raises a … question which does not appear to have
received the attention of domestic courts since the establishment of the modern law of privacy. The reason for this may well be that the answer is so obvious that no litigant has
thought it worth contesting.

Does the writer of a letter that is self-evidently private and sensitive have the right to decide whether, when, how and to what extent to publish its contents? Or
does a newspaper have the right to publish those contents without the prior consent or even
knowledge of the writer?

The claimant submits … there can, as a matter of principle, be only one answer to this question: the writer of the letter has the right to control its dissemination and no one else, be it the State
or a newspaper publisher… Any other proposition would be a deeply disturbing one

There may be cases of disclosure of private correspondence
where genuine questions arise as to the existence or strength of that right… But this case is not one of them.

The Defendant’s decision to publish, without the Claimant’s consent oreven prior knowledge, very substantial extracts from her letter to her father to its millions
of readers worldwide was a plain and serious invasion of her rights of privacy in that letter.

It was in fact a direct assault on, not just one, but three of the four strands of privacy rights
protected under Article 8, all of which coalesced in the Letter: her private life, her family
life and her correspondence.

[That’s the end of the quotes I have taken from the claimant’s skeleton argument].

Rushbrooke now taking Warby through the facts. The judge can be heard taking notes on his laptop.

Rushbrooke QC is now talking about the letter the duchess sent her father in August 2018.

He summarises the following passage in his written argument:

The contents and character of the Letter were intrinsically private, personal and sensitive
in nature: it concerned the Claimant’s relationship with her father; her constant love for
and desire to protect him; the financial support she had given him …

… her concerns over the state of his health; the recent breakdown
of that relationship; her feelings about that breakdown and the very painful impact of his
conduct upon her … his dealings with the press; and her sense of betrayal over
his denial of working with the paparazzi.

Rushbrooke QC is now dealing with the book “Finding Freedom”. Associated Newspapers claimed that short extracts from the letter in the book must have been supplied by the duchess. The author, Omid Scobie, says he took extracts from the Mail on Sunday. He was not given the letter.

Rushbrooke QC: it is
misconceived as a matter of law to contend that Mr Markle was free as the recipient of a letter not marked “private and confidential” to share its contents, for the reason given by Mr Justice Eady in McKennitt v Ash [2006] EMLR 10 at [77].

Rushbrooke QC now challenges newspaper’s claim that duchess had no “reasonable expectation of privacy” when she sent letter or, failing that, by time of publication. That was said to be because of the interview her friends gave People magazine. He says that wasn’t “publication”.

Rushbrooke QC, for Duchess of Sussex, argues that there is no case to go to trial on whether she had a reasonable expectation of privacy. “Her rights were strongly engaged”. He now deals with claims that her expectation was compromised and publication was in the public interest

Sorry: previous tweet not part of this thread. Justin Rushbrooke QC for Duchess of Sussex about to hand over to Ian Mill QC to deal with breach of copyright part of the claim. Meanwhile court grants request from @PA to disclose witness statements by Thomas Markle and Ted Verity…

Court says other case statements can be released to the media, but only for fair and accurate reporting of proceedings.

Mill QC says he’ll need more time and court says it may sit at 1000 tomorrow rather than 1030.

And that’s all from me for today. I have another commitment now