From 1 October 2019 new rules - in the form of a revised Part 53 of the Civil Procedure Rules, revised/new practice directions (PD 7A, 53A and 53B) and an all encompassing pre-action protocol - will apply to claims in England and Wales arising from media and communications disputes.
The formal designation of a specialist Media and Communications List (the List) in the Queen's Bench Division (QBD) acknowledges the need for specialist claims to be presided over by specialist judges. More significantly, the procedural changes belatedly acknowledge that media and communications law is a broader discipline than what it was in the 20th Century when most ‘media’ litigation was libel. The Human Rights Act 1998 (which allowed the tort of misuse of private information to evolve as a distinct tort), the Protection from Harassment Act 1997 and the Data Protection Act 1998 (now superseded by the GDPR and Data Protection Act 2018) have dramatically altered the workload of media lawyers and media judges.
High Court or County Court?
Paragraph PD 7A is to be amended to allow for all claims relating to media and communications work (see the definition below) to be started in either the High Court or County Court, save for libel or slander claims (which may only be issued in the County Court if the parties agree). Significantly, the amendment disapplies paragraph 2.1 of the PD, which requires claims to have a value in excess of £100,000 in order to be commenced in the High Court. This is a welcome development. The prevailing position has, at best, been ambiguous and there is a consensus amongst practitioners that serious and complex privacy, data protection and harassment claims should not be hived off to non-specialist County Court judges simply because of the value of the claim (indeed, in many cases damages are not the principal remedy or the motivation for issuing proceedings).
That is not to say that all media and communications work should be issued in the High Court. Paragraph 2.9A(2) of the new PD 7A states that a claim should be issued in the High Court if the Claimant believes that the factors in paragraph 2.4(1)-(3) - financial value, complexity and public importance - mean that the matter should be dealt with by a High Court judge. Paragraph 2.9A(3) warns that if the High Court disagrees that it will transfer the matter to the County Court which "is likely to result in delay".
To an extent these changes reflect the approach currently taken, despite the technical £100,00 threshold, by many practitioners and judges, albeit not universally, with some serious cases "ping-ponging" to/from the County Court.
The Designated QBD Media and Communications List
From 1 October 2019, all High Court claims that include a claim for defamation, misuse of private information, data protection and/or harassment by publication must be issued in the Media and Communications List in the QBD (new CPR 53.1(3)). A claim that involves the publication or threatened publication of information via the media, online, or the activities of the media may also be issued in the List (CPR 53.1(4)). Appropriate claims - depending on the facts - could include breach of confidence, malicious falsehood, negligence/negligent misstatement, breach of contract, deceit and even economic torts/conspiracies. This is subject to existing provisions relating to intellectual property claims (which have their own specialist list and court).
A Media Communications and List has of course been in existence since 2017, although as Chief Master Marsh pointed out in Mezvinsky & Anor v Associated Newspapers Ltd  EWHC 1261 (Ch), it is not yet a designated specialist list: "...It was not created by a provision in the CPR, or in statute, and without underplaying its significance, it is a means by which work that is already within the Queen’s Bench Division is allocated for its proper performance. The creation of the M&CL has no direct extra-divisional effect.” Under the changes, the List will have the formal designation it has hitherto been lacking. The Chancery Division will still have jurisdiction to try claims with a media and communications element and PD 53A sets out how cases can be transferred to and/from the List. A case may be transferred out of the List where it "...falls within the scope of the list but would more conveniently be dealt with in another court or list and make such order as the court considers appropriate in the light of its conclusions." An example might be a heavy commercial dispute where there is a privacy or breach of confidence claim tacked on.
The new CPR 53.2(3) formally creates a category of judges known as "Media and Communications List Judges" (Media Judges) who, together with QBD Masters, will hear all proceedings in the List, save for urgent applications when a Media Judge is unavailable (CPR 53.2(4)). Previously, media law claims have been tried by both specialist and general QBD judges, although a considerable effort has been made in recent years for substantive hearings to be listed before specialists. The existing position of Judge in Charge of the Media List is enshrined in the new CPR. The position has been held by Mr Justice Warby since its creation in 2017, although he has been the QBD’s senior media law judge since Mr Justice Tugendhat’s retirement in 2014.
Meaning hearings in defamation claims
As in the current practice direction, we are reminded that applications for determination of meaning in defamation claims should be made promptly and at any point after the service of Particulars of Claim (paragraph 6.2 of PD 53B). There is considerable recent judicial obiter that says this should be before a Defence is filed. Whilst this will not be mandatory under the rules, a challenge after a Defence has been filed might attract cost sanctions. Meaning hearings are also required to be issued before a Judge (which because of CPR 52.3(4) means a Media Judge). Practitioners should refer court staff to this provision if they insist such an application be listed before a Master.
Statements of case
In addition to the guidance on what should be pleaded in a defamation claim, we now have guidance on how privacy, data protection and harassment claims should be pleaded (paragraphs 8.1 to 10.4 of PD 53B). Media and communications law attracts a peculiarly high number of litigants-in-person, who - in defamation claims - are regularly made the subject of Unless Orders issued by the QBD Masters of their own volition in response to incoherent pleadings that fail to comply with PD53. The ability for Masters to point litigants to a similar set of rules for privacy, data protection and harassment claims when making such orders is a positive development.
The required ingredients for privacy, harassment and data protection claims are unsurprising. A notable addition to the defamation rules is the need to set out the facts and matters relied upon to satisfy the section 1 requirement of the Defamation Act 2013, i.e. to show that the publication of the statement has caused or is likely to cause the claimant serious harm to their reputation (and, for corporate claimants, financial loss).
Harassment claims no longer to be issued under Part 8
CPR rule 65.28 - which mandates that claims for harassment be issued under the Part 8 procedure - is to be disapplied for claims for harassment by publication (paragraph 10.2 of PD53B). These claims will need to be commenced under the Part 7 procedure. Whilst this will mean extra stages to litigation (pleadings, disclosure, and costs budgeting), advantages for claimants include not having to front-load the preparation of all their evidence (witness statements must be served with a Part 8 Claim Form) and the potential availability of the default judgment and summary judgment procedures. In practice, many harassment claims are very strong or undefended and so this may save time and costs. In other cases, the issuing of proceedings may encourage settlement.
A pre-action protocol for all media and communication claims
The old pre-action protocol for defamation claims is to be be replaced by a new protocol that will apply to all media and communications claims. It provides useful guidance for the pre-action steps and media lawyers will need to review it carefully. Here are just a few points to note:-
- Paragraph 1.4 states that “...time is frequently ‘of the essence’ in defamation and other publication claims...” (our emphasis). The protocol anticipates that the standard period for a defendant to respond to a letter of claim for all media and communications claims, including privacy, data protection and harassment claims, will be 14 days (paragraph 3.6). To date, claimants have either had to crowbar such claims into the Pre-Action Protocol for Defamation or rely on the general Practice Direction for Pre-Action Protocols and Conduct. The latter states that a response should be provided "...within a reasonable time - 14 days in a straight forward case and no more than 3 months in a very complex one". The days of defendant lawyers arguing that their client should be entitled to three months to investigate a privacy claim where the only real issues that could be in dispute are legal ones seem numbered.
- It is expressly stated under the heading ‘Litigants in person’ that even those who are unrepresented should “...in so far as reasonably possible, fully comply with this Protocol.” Again, this appears to be a response to the relatively high numbers of litigants-in-person involved in media and communications claims. Media lawyers must remember to refer opponents who are unrepresented to the new protocol and provide them with a copy of it.
- Interestingly, claimants are required to set out any facts or matters relevant to England and Wales being the most appropriate forum for the dispute (paragraph 3.1). In particular, this will be a live issue where section 9 of the Defamation Act 2013 is in play.
- Claimants are required to set out in a letter of claim details of any funding arrangement (paragraph 3.1). A requirement to disclose the existence of an after-the-event insurance policy would be understandable, but otherwise the purpose of this provision is unclear given that success fees can no longer be recovered under conditional fee agreements.
- For the first time, there is guidance on letters of claim for privacy, breach of confidence, data protection and harassment claims (paragraphs 3.3 to 3.5). The guidance is generally uncontroversial, although notably letters of claim for misuse of private information should set out why it is claimed that the claimant’s right to private and family life outweighs the right to freedom of expression. The letter should also indicate if an application for anonymity is anticipated and, if so, the basis for the application (paragraph 3.3).
- The protocols warns that a refusal to engage in alternative dispute resolution ('ADR') might be considered unreasonable by the court and lead to cost sanctions. Examples of ADR methods the parties can consider are given: (a) without prejudice discussions/negotiations, (b) mediation, (c) early neutral evaluation and (d) reference to a press regulator or their arbitration scheme.
The changes codify/rationalise and strengthen existing media law procedure. This should lead to greater consistency. Moreover, they acknowledge that media and communications law is inherently complex and requires specialist judges. The creation of practice directions and pre-action protocols to cover non-defamation publication claims is long overdue.
There is much to be complained about in the justice system, but the work of the Queen’s Bench Division Media and Communications List User Group (MACLUG) and Civil Procedure Rule Committee in implementing these changes should be applauded.