“All is not lost, Meghan.”

The Duchess of Sussex may have lost the first battle in her privacy claim against the Mail on Sunday but she may still win the war.

“Humiliated”, “Throne Out”, “Meghan’s legal case suffers a blow as claims are dismissed”: These are some of the more lurid headlines that may have had the Duke and Duchess of Sussex choking over their breakfast of smashed avocado and poached eggs in sunny Malibu.

On Friday 1 May 2020, Mr Justice Warby gave judgement in favour of Associated Newspapers Limited, the publishers of the Mail on Sunday in the first round of the Duchess of Sussex’s claim against the newspaper for breaching her privacy in publishing a letter that she had written and sent to her estranged father, Thomas Markle, in August 2018.

In February 2019, the Mail on Sunday published five articles reproducing parts of the August 2018 handwritten letter which, in the Duchess’ claim, was described as “her intimate thoughts and feelings about her father’s health and her relationship with him at that time”.

The Duchess’ lawyers filed her High Court claim for misuse of confidential information, breach of duty under the GDPR regulations and infringement of copyright in September 2019 and provided her Particulars of Claim in October 2019. The Mail on Sunday defends the claim on the basis that it disputes that the contents of the letter were private and confidential, or that the Duchess had an expectation that it would remain private; that publication was justified to protect the rights of freedom of expression of the newspaper, its readers and Mr Markle; that processing of the personal data in the letter was not unlawful or unfair but was legitimate; and that the letter was not an original literary work, alternatively, that it was a “very limited intellectual creation” and only a limited part of the letter was published.

The matters which Mr Justice Warby had to decide were whether, as the Mail on Sunday contended, other claims made in the Particulars of Claim should remain as part of the Duchess’ case. Specifically, the Judge struck out what may be regarded as more sensational and personal claims on the part of the Duchess that the newspaper had acted “dishonestly” by leaving out parts of the letter and distorting what she had written. He also struck out allegations that the newspaper had deliberately “stirred up” issues between the Duchess and her father and that it (and other media) had an ongoing “agenda” of publishing intrusive or offensive stories about her.

Mr Justice Warby considered that those allegations should not form part of the Duchess’ case because they were “irrelevant” to her claims for misuse of private information, breach of the Data Protection Regulations and infringement of copyright. He also considered that some of the allegations had been inadequately detailed to support the claims made but left open the possibility that they may be revived if put forward in proper form and evidenced.

For the present, the Duchess’ case against the Mail on Sunday continues on the basis of misuse of confidential information, breach of GDPR and infringement of copyright. As the Judge said early in the judgement quoting established legal texts and case law: “The challenge to the claimant’s case that the contents of the Letter were private and confidential in nature might seem at first a little surprising … The court has protected the confidentiality of private correspondence since at least the late eighteenth century. It is clearly established that, as a starting point, the contents of private letters are to be regarded as subject to a duty of confidentiality owed by the recipient to the writer”. The Judge also accepted the Duchess’ submission (through her lawyers) that her case was similar to that of her father-in-law, the Prince of Wales, in the case HRH The Prince of Wales v Associated Newspapers Ltd reported in 2006. That case related to a “splash and spread” in the Mail on Sunday, reporting and reproducing parts of the Prince of Wales’ travel journal of his visit to the handover of Hong Kong in 1997, which were disparaging of the formalities and behaviour of the Chinese participants. The Prince sued for breach of confidence and copyright infringement. His case was that the journals set out his private and personal thoughts and impressions of the tours to which they related, that these matters were not in the public domain and constituted his confidential information. Blackburne J found for the Prince of Wales at a summary hearing on the basis that there was no real prospect of the Mail on Sunday successfully defending the claim. That decision was reaffirmed by the Court of Appeal.

Against the general principle, Mr Justice Warby recognised that there was also legal authority to the effect that: “It has, however, been suggested that correspondence is not categorically entitled to protection nor its contents ‘inherently private’. The nature of the information contained in the correspondence will accordingly be relevant.”

We shall see how matters develop. Although the Duchess of Sussex may wonder how it is that she finds herself having lost this first round of the battle, with likely substantial legal costs to be paid to the Mail on Sunday (on top of her own legal costs), many legal commentators remain of the view that her fundamental claims remain sound.

Perhaps her father-in-law, with his voice of authority, will be reminding her via Zoom that all is not lost?