As most readers will know, the Duchess of Sussex (formerly Meghan Markle) is suing the publisher of The Mail on Sunday and the MailOnline website over the publication of a letter she wrote to her father. The letter was, according to the Duchess, "a private and confidential letter to her father [detailing] her intimate thoughts and feelings about her father’s health and her relationship with him at that time". According to the Mail, it was a "letter showing [the] true tragedy of Meghan's rift with a father she says has 'broken her heart into a million pieces'".
The Duchess bases her claim on (1) misuse of private information, (2) breach of provisions of the GDPR, and (3) infringement of her copyright in the letter.
The Daily Mail article publishing the letter played up its personal nature, using the heading "You watched me suffer as my sister spread lies", and described the letter as “a deeply personal handwritten letter” in which the now-Duchess “pours out her heart” to her father. The Mail nevertheless denies that the letter was private and confidential, or that the Duchess had a reasonable expectation of privacy. The Mail fights the data protection claim on the bases that its own freedom of expression (and that of its readers and Mr Markle) warrant the processing, that the Duchess had impliedly consented to its publication and that it can benefit from the journalism exemption. It also denies that the letter is an original literary work (yes, really), but if it fails on that point denies it copied a substantial part and relies on its rights to free expression. (It is not entirely clear if it also relies on the defences to copyright infringement for news reporting.)
Application to strike out parts of her case
The Duchess's particulars of claim (i.e. the document that sets out her case in detail) were couched in similarly (as far as legal documents go) flamboyant terms. She alleged that the Mail had been dishonest and malicious, had been deliberately seeking to dig or stir up issues with her and her father, and had an "obvious agenda" against her.
In an early skirmish, the primarymedia and communications judge, Mr Justice Warby, struck out those parts of the particulars of claim on the basis that they were irrelevant, inadequately set out, vague, lacking in particulars and speculative. Early win for the defendant publisher, although the judge did leave the door open for the Duchess to properly plead some of those points.
It is interesting for a number of reasons, some legal and some tactical. From the legal point of view, the case is a reasonably straightforward application of well-known rules about pleadings, albeit a somewhat strict application of them.
From a strategic point of view, the flamboyant and excessive pleading has been a bit of an own goal. Whether or not it was an attempt to play the press at its own game, the successful strike out application will have put the wind in the Mail's sails (I could write headlines), even if the Duchess's claim is pretty strong on the bits remaining.
I am satisfied that, as a matter of discretion, it is right to strike out all the passages I have mentioned. The overriding objective of deciding cases justly and at proportionate cost requires the Court to monitor and control the scale of the resources it devotes to each individual claim. Irrelevant matter should, as a rule, have no place in Particulars of Claim. There may be cases where the court would allow the inclusion of some minor matters that are, on a strict view, immaterial. But where the irrelevant pleading makes serious allegations of wrongdoing which are partly implicit, unclear, lacking in the essential particulars, and likely to cause a significant increase in cost and complexity the case for striking out is all the clearer.
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