The Duchess of Sussex may not receive the vital support of her friends as witnesses in her court battle over claims that her privacy was breached, it has emerged.
Lawyers for Meghan have said it would be “an unacceptably high price” for the Duchess to be forced to identify the friends in pursuit of her legal claim against the Mail on Sunday (MoS) and that it would be a “cruel irony” should she be required to pay it.
She is arguing that naming them would breach their privacy under the European Convention on Human Rights, while the newspaper argues that they must be disclosed as a key principle of "open justice".
But it is claimed that the prospect of being named in court - as normal procedure would require - has left them reluctant to take the witness stand voluntarily on Meghan's behalf.
Documents submitted to the court by the Duchess’s legal team state: “It is not certain that the friends will be witnesses at the trial of this claim and the Court cannot be required to second-guess the result of any application for anonymity.”
Describing the friends as "innocent third parties", the Duchess’s lawyers go on to state that they “are not parties to this action but unwilling participants.”
They add: “To force the Claimant, [the Duchess] as the Defendant [Associated Newspapers] urges the Court to do, to disclose their identities to the public at this stage would be to exact an unacceptably high price for pursuing her claim for invasion of privacy against the Defendant in respect of its disclosure of the Letter.
“On her case, which will be tried in due course, the Defendant has been guilty of a flagrant and unjustified intrusion into her private and family life. Given the close factual nexus between the Letter and the events leading up to the Defendant’s decision to publish its contents, it would be a cruel irony were she required to pay that price before her claim has even been determined.”
The Duchess has applied for an order on behalf of the five that their names remain confidential, as part of her battle with the paper and it’s publishers, Associated Newspapers, but there is no certainty this will be granted by the trial judge, Mr Justice Warby.
The five – who can be identified only by the initials A to E, but are all described as “young mothers”– gave briefings to People magazine, a US publication, last February.
People revealed the existence of a letter to her father which was subsequently published in MoS, prompting the ongoing High Court action for breach of privacy and copyright.
Justin Rushbrooke QC, barrister for the Duchess, told the High Court that she had been forced to identify her friends in a legal request by Associated Newspapers and added that the five were entitled to "a very high level of super-charged right of confidentiality".
Antony White QC, representing Associated Newspapers, told the court: "The five individuals have already been identified, not under compulsion but as part of the response to the request for further information. The question is not should their identities be disclosed – that has happened – it is should they be anonymised in these proceedings?
"There is no proper evidential basis [for the application]. There is no evidence at all from four of the five friends, and the evidence from the fifth [Friend B] has been shown to be unsatisfactory."
In an embarrassing moment during the application Mr Rushbrooke accidentally let slip the surname of one of the five.
Mr Justice Warby, who is expected to rule on the matter in August, immediately directed that the individual's name was not to be reported.
It was disclosed earlier that the Duchess had agreed to pay in full £67,888 in costs to Associated Newspapers after the publisher successfully argued that elements of her case be struck out - a fraction of a multi-million legal bill which is expected should the case go to a full trial next year.