In the tempest of indignation, outrage and bluster triggered last week by the seemingly sudden decision by the Duke and Duchess of Sussex to shed royal timidity over litigation, one group was silent: their lawyers.
Partners at both London law firms involved refused to speak to the media. These were not the usual royal lawyers of choice. For years, Farrer & Co, a blue-blood firm in Lincoln’s Inn fields, was renowned as “the Queen’s solicitors”. More recently, the younger royals — including William and Harry — have instructed Harbottle & Lewis, a niche media practice discreetly tucked next to the Savoy Hotel.
Last week’s flurry of proceedings was all change. For her claim against the Mail on Sunday for copyright infringement and breach of privacy and data protection law, the duchess instructed Schillings, a firm that revels in its bête noire reputation for bludgeoning the media with defamation and privacy claims on behalf of celebrities.
For his phone-hacking claim against the defunct News of the World, The Sun, whose owner also publishes The Times, and the Mirror, the duke has opted for Clintons, a Covent Garden firm.
Why the change? The duchess’s choice of Schillings could reflect her Hollywood background. Or as Michael Gardner, a partner at Wedlake Bell, puts it: “Some commentators have speculated that the aggressive stance is the product of the duchess’s North American attitude to litigation.”
Clintons has past experience of bringing phone-hacking claims, but then Harbottle & Lewis arguably has even more. Perhaps the duke’s choice is motivated by his desire to be seen to be his own man. So much for the team sheets; why bring the litigation now and what are the chances of success?
First, it is something of a myth that the royals do not sue. It may be rare, but senior figures have turned to the courts in the past. Indeed, Harry’s parents are prime examples — and those two cases strike a chord with present events.
In 1993 Diana, Princess of Wales sued the Mirror Group over photos that were secretly taken of her exercising in a Kensington gym. Two years later, the parties settled before trial.
In 2006 the Prince of Wales sued the Mail on Sunday over the unauthorised publication of extracts from diaries that he wrote during the handover of Hong Kong from the UK to China, in which he described Chinese dignitaries as “appalling old waxworks”. Judges controversially ruled that the prince’s claim for privacy was “overwhelming”.
Will their son and his wife have similar success? Experts suggest that the strongest case is what the public might consider the most boring — the duchess’s claim for copyright infringement against the newspaper for publishing extracts from a letter to her father.
The newspaper could defeat her claims for breach of privacy and misuse of private information if it can establish that the duchess authorised earlier references to the letter by her “friends” in a US gossip magazine.
And as Amber Melville-Brown, a partner at Withers, points out, the Mail on Sunday “may adopt a robust hypocrisy public interest defence, arguing that Meghan’s letter to her father was not the conciliatory missive that those in camp duchess have portrayed it to be.”
Therefore, all eyes are on copyright. “The author of a letter usually retains copyright,” says Steven Heffer, a partner at Collyer Bristow. “Whilst there is an exception for news reporting, the use of a private letter is unlikely to be justified, except where there is a very clear public interest.”
Heffer says that success for the duchess in the copyright claim could result in her winning “significant damages” since the court will take into account money made from the breach.
When it comes to the duke’s phone-hacking claim there are still potential issues over the six-year limitation period, which means the claim will be out of time if the duke became aware of the full nature of the hack outside that frame. Ultimately, Gardner says, “if the evidence establishes it was likely that phone hacking did take place, then the case is likely to be settled well before trial”.
Mark Stephens, a partner at Howard Kennedy, expects a backlash against the action. He says: “No litigant comes through litigation unscathed and unscarred. From here on in, I think we will see increasingly hostile and negative coverage of Harry and Meghan from the media.”
The prospect of a full trial in any of these claims with the duke, the duchess or both potentially giving evidence in the witness box has whetted the appetites of the media and the public. If the Royal Courts of Justice played host to the battle, it would be a landmark event.
Gardner says: “A trial would surely lead to huge publicity and might well force the duchess to give evidence of highly personal matters in open court. So this is a very high-risk move.”
A high-risk strategy to a potentially pointless end, argues Melville-Brown. He says: “The problem with legal action of the nature embarked upon by the duchess is that even if successful it is shutting the publication door after the media horse has bolted.”
This article was orignally published in The Times on 10 October 2019.