Memory loss at briefing authors on stories disparaging her family could be turning point

‘The Duchess does not know if, and to what extent, her team were involved in providing information for the book’

The Duchess of Sussex’s admission that she misled a High Court judge could be a turning point in her two-year-old privacy battle with Associated Newspapers.

Not only does it potentially weaken her case, it also increases the chances that her former staff may be called to give evidence against her in a public trial – something she has no doubt been desperate to avoid.

A trial would almost certainly entail the Duchess and Prince Harry being called to give evidence – and crossexamined – on oath, a possibility that has always been regarded as unconscionable by the Royal family.

And it will also be up to the court to decide whether, by misleading the court in the evidence she previously gave, the Duchess’s conduct amounts to perjury, a criminal offence which carries a maximum sentence of seven years’ imprisonment.

In her apology to the court the Duchess stated she had no wish or intention to mislead. The Duke and Duchess may now be starting to understand why the Royal family have always done everything they can to avoid bringing, or getting dragged into, court cases.

The Duchess has always maintained that a letter sent to her father Thomas Markle several weeks after her wedding to Prince Harry was private, and that the Mail on Sunday publishers breached her privacy, as well as her copyright, by printing extracts of it.

Lord Justice Warby was so convinced by her argument that he saw no need for the case to go to trial, instead dealing with it via a summary

judgment, which meant none of the parties – including the Duchess’s staff – had a chance to be heard. Their written statements were also kept out of the public domain as the judge found in the Duchess’s favour.

However, it has now emerged that the judge was not in full possession of the facts when he made his ruling, thanks to what the Duchess now blames on a memory lapse.

Associated Newspapers has always argued that the Duchess forfeited her right to privacy over the letter by using her staff and friends to give “misleading” briefings to the authors of a biography, and People magazine.

The Duchess, as we now know, asked the opinion of her then communications secretary, Jason Knauf, on the wording of the letter, and she wanted to make sure it would “pull at the heartstrings” if leaked.

Associated argue that her anticipation that the letter was likely to be leaked undermines the Duchess’s expectation of privacy. They also argue it was in the public interest for the contents to be known because they say she was manipulating the media.

Mr Justice Warby – who knew about Mr Knauf ’s role when he made his judgment – decided the Duchess’s right to privacy, enshrined in Article 8 of the European Convention on Human Rights (which forms the bedrock of our own Human Rights Act), outweighed the media’s right to free speech under Article 10 of the Act. It was just the latest in a long line of decisions that have helped to create a judge-made privacy law in the UK, to the delight of the wealthy and famous, which critics say has had a chilling effect on the media’s ability to hold public figures to account.

Crucially, however, Mr Justice Warby did not know that the Duchess had told Mr Knauf to brief the authors of Finding Freedom with disparaging stories about her family.

Until now, the court had been told that the Duchess “does not know if, and to what extent, the communications team were involved in providing information for the book”. The Duke and Duchess have always maintained that they did not directly or indirectly collaborate with it.

In a statement yesterday, however, the Duchess accepts that “Mr Knauf did provide some information to the authors for the book”, something she had “not remembered”.

According to Mr Knauf ’s newly released account, he and the Duchess discussed the book “multiple times” in person and via email.