The Duchess of Sussex has asked the High Court to order The Mail On Sunday to hand over any copies of a handwritten letter sent to her estranged father following her “comprehensive win” last month.
Meghan, 39, 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 Thomas Markle, 76, in August 2018.
She claimed the five articles published in February 2019 involved a misuse of her private information, breached her copyright and breached the Data Protection Act.
Last month, Meghan was granted summary judgment in relation to her privacy claim, meaning she won that claim without having to go to trial, as well as most of her copyright claim.
At a remote hearing on Tuesday, the duchess’ lawyers asked the High Court to order ANL to hand over any copies of the letter to Mr Markle and destroy any electronic copies of it or any notes made about it.
Ian Mill QC, representing Meghan, also applied for an injunction to “restrain the acts of copyright infringement and misuse of private information”.
In written submissions, Mr Mill 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.”
Mr Mill also sought an order requiring ANL to publish a statement about the duchess’ victory on the front page of The Mail On Sunday and the home page of MailOnline “to act as a deterrent to future infringers”.
The barrister said Meghan was willing to “cap her damages” for misuse of private information “at a nominal award”, in order to “avoid the need for time and cost to be incurred in debating these issues”.
Mr Mill also asked for ANL to pay £750,000 within two weeks as “an interim payment on account” of Meghan’s legal costs in bringing the claim.
In written submissions, Antony White QC, representing ANL, said his client planned to appeal against the summary judgment ruling, arguing that it “would have a real prospect of success”.
Mr White said Meghan’s withdrawal of her claim for damages, instead seeking nominal damages, was “a radical change of position”.
In relation to the duchess’ request for nominal damages, Mr White added: “It is suggested that £1, £2 or £5 would do.”
Mr White also argued that any order requiring ANL to hand over any copies of Meghan’s letter to her father should be put on hold until any appeal against last month’s judgment could be determined.
He added: “The claimant is not entitled to delivery up of the copy of the letter made by Thomas Markle and given to the defendant unless and until the claimant alleges and proves that the making of that copy by Mr Markle was such that it is an infringing copy.”
Mr White also said Meghan’s application for an order requiring ANL to publish a statement that the duchess was granted summary judgment was unnecessary.
He said: “The claimant’s success on her application for summary judgment was, as referred to above, afforded very extensive coverage across the national media, including in the defendant’s titles and on a number of newspaper front pages.”
Mr White argued that the duchess’s application seemed to be “intended more as a species of punishment or retribution, rather than as a necessary and proportionate measure in the interests of the claimant or the public”.
The barrister finally argued that Meghan’s “extremely large costs bill” of around £1.5 million was disproportionate.
ANL’s proposed grounds of appeal, which were also before the court, 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 the ruling last month, the judge – now Lord Justice Warby, following his recent promotion to the Court of Appeal – ruled that the publication of Meghan’s letter to her father was “manifestly excessive and hence unlawful”.
He 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, which featured an interview with five friends of Meghan.
But the judge 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.”
He 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.