Mezvinsky & Anor v Associated Newspapers Ltd

On 16 May 2018 I heard an application made by the defendant for an order that the claim be transferred to the Queen’s Bench Division for allocation to the Media and Communications List (“the M&CL”). I dismissed the application and said I would hand down a written judgement giving my reasons. Having dismissed the application, I gave directions for this claim to be listed for trial in the Business and Property Courts, Business List (ChD).

The claimants are the children of Chelsea Clinton and Marc Mezvinsky who act as their litigation friends. The claimants were aged 3 and 1 respectively when the particulars of claim were served in November 2017. The defendant is the publisher of Mail Online. The claim concerns a series of articles published on the website between 12 April and 1 November 2017. The articles included photographs of the claimants in which their face or features were plainly visible (they had not been pixelated).

The claimants say that the publication of the photographs was wrongful and constituted a breach of confidence, an unjustified infringement of their right to privacy and a misuse of their private information (paragraph 5 of the particulars of claim). However, as Ms Marzec, who appeared for the defendant pointed out, a claim for breach of confidence is not pursued. This is clear from the first prayer for relief which seeks damages, or an account of profits obtained by the defendant, “for invasion of privacy and/or misuse of private information.” The claim therefore comprises two causes of action; (1) the misuse of private information which will involve the court balancing the competing considerations contained in articles 8 and 10 of the European Convention on Human Rights and; (2) a breach of duty by the defendant in failing to comply with the data protection principles, with compensation pursuant to section 13 of the Data Protection Act 1998. In reality, however, the focus of the claim is on the privacy claim.

Mr Sherborne, who appeared for the claimants, summarised the principal issues in the claim as being the following:

The application is supported by a witness statement made by Keith Mathieson of the defendant’s solicitors. He says there are two grounds upon which an order for transfer should be made. First, at paragraph 14 of his witness statement, he made the assertion, now accepted as incorrect, that a trial listing for a week-long trial in the Queen’s Bench Division would be likely to be listed in the early autumn of 2018, whereas, by contrast, a trial of similar length in the Chancery Division is more likely to go into the lists for 2019. In fact, it is now common ground that a trial listing in the Chancery Division is likely to be slightly sooner than one in the Queen’s Bench Division. And it is not suggested that the trial time estimate will be shorter if the claim is transferred. I would add that the idea of a trial taking place in October 2018 overlooked the period that will be taken up by the pre-trial steps (disclosure, witness statements and expert evidence). The timetable set at the CMC runs until November 2018 making it unlikely that a trial could take place until 2019, regardless of the exigencies of listing.

The second ground is based upon a misconception about the effect of the creation of the Business and Property Courts and the status of the M&CL. Mr Mathieson says:

“24.

… I challenge the suggestion that a privacy claim for damages for alleged distress against a media publisher may be issued in the Business List. Such a claim does not fall within the scope of that list’s business.

25.

… it is true that some lawyers have issued privacy claims in the Chancery Division, but those claims were, I believe, all issued before the Media and Communications List was established and indeed before the Business List was established. Now that those lists are in operation, it is surely desirable that privacy claims against the media ought to be dealt with in the list established for that very purpose.

26.

… to the best of my current knowledge, I am not aware of any privacy case in which liability has been tried, on its merits, in the Chancery Division. The only trial in the phone-hacking cases so far concerned quantum, since liability was admitted.

27.

I do not suggest that a Chancery Judge would not be capable of carrying out the evaluative exercise referred to in paragraph 13 above. All the judges of the High Court are of course competent to deal with any issued claim, particularly when properly and responsibly assisted by by the parties. [sic] However, the judges of the Media and Communications List are deeply familiar with all relevant case law and the principles involved; citation of authority will be much less extensive, if necessary at all. Given this long-standing familiarity with the cases, principles and issues, any hearing in this claim concerning a substantive matter before a Media and Communications judge is likely to be shorter than the same hearing before a non-specialist. Over the course of the case, having the matter dealt with in the specialist list is likely to save significant time and costs and is therefore in accordance with the overriding objective. The claim is likely to move more speedily, as I stated in paragraph 14 above.”

It is common ground now that a claimant is not precluded from issuing a privacy claim in the Business List (ChD) of the Business and Property Courts. For the reasons I will explain, there is concurrent jurisdiction to deal with this claim in the Business and Property Courts and in the Queen’s Bench Division. To make that point good, and before dealing with the way in which Ms Marzec put the defendant’s case at the hearing, it is necessary to set out the statutory framework for the allocation of work in the High Court and the relevant provisions of the CPR.

Nothing turns on the precise terms of the relevant sections of the Senior Courts Act 1981 (“SCA”) and it suffices to summarise their effect:

CPR Part 30 deals with the transfer of claims. Rule 30(5)(1) contains a bare power permitting transfer from one Division to another, the power being derived from section 65 of the SCA. The rule does not provide any criteria by which the power is to be exercised, unlike rule 30.3 which deals with transfer orders between the High Court and the County Court.

Rules 30(2) to (4) deal with the transfer of claims to, or from, a specialist list. They have no relevance to the defendant’s application.

The notion of what is a specialist list is not an easy one to grapple with. Helpful guidance can be obtained in Civil Procedure 2018 at paragraph 2.3.14 and at 49.0.1. Happily, it is unnecessary to explore the niceties of the distinction between specialist proceedings and specialist lists. The short point for present purposes is that unless the CPR expressly provides that an area of business is a specialist list (see for example rule 58.2), the notion has no application.

On 27 February 2017, an announcement was made about the creation of the M&CL. Warby J was appointed to take charge of media-related case listing. The announcement records that:

“With the concurrence of the President of the Queen’s Bench Division, the judge in charge of the Queen’s Bench Civil List, Mr Justice Foskett, has invited Mr Justice Warby to take primary responsibility for cases involving one or more of the main media torts (defamation, misuse of private information and breach of duty under the Data Protection Act) and related or similar claims including malicious falsehood and harassment arising from publication or threatened publication by the print or broadcast media, online, on social media, or in speech.”

The M&CL is not a 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.

The defendant has also proceeded on the basis that the Business List (ChD), as part of the Business and Property Courts (“B&PCs”), is a specialist list. This misconception was pointed out to them by my clerk in an email sent on 19 March 2018 in response to their request that the application be listed before a High Court judge. The fact that the Business List (ChD) is not a specialist list is less obvious than in the case of the M&CL because the Business List (ChD) was created by a Practice Direction. Paragraph 1.1 of the Practice Direction explains the work that is brought together under the umbrella title of the B&PCs and paragraph 1.3 explains how the B&PCs is divided into a number of courts and lists. However, nothing in the Practice Direction changes the status quo concerning the constituent elements of the B&PCs or specialist lists that are within it. Perhaps unhelpfully, the Advisory Note describing the B&PCs (which has no legal status) describes the work of the B&PCs as being divided “… into specialist courts and lists” using specialist in a non-technical sense. The short point for the purposes of this application, other than the fact that Rule 30.5(2) is not engaged, is that the business of the Chancery Division is entirely unaffected by the creation of the B&PCs which has been described as a re-branding as opposed to a re-structuring. The Chancery Division lives; but its identity has had a makeover.

I should add that, so far as the lists that comprise the Chancery Division are concerned, there is no allocation of individual judges to the Business List. This is unlike the M&CL for which Warby J is the allocated judge. Any judge who is qualified to sit in the Chancery Division may hear any claim in that list. In practice, however, the judges’ listing function goes to great lengths to ensure that judges with appropriate experience hear particular cases.

Mr Mathieson’s witness statement states in unequivocal terms that privacy claims do not fall within the scope of the Business List in the B&PCs. However, when the effect of the creation of the B&PCs is properly understood, the point is simply incorrect. The work of the Chancery Division is allocated to the Business List, the Competition List, the Financial List (with the Commercial Court), the Insolvency and Companies List, the Property Trusts and Probate List and the Revenue List. Any claim that does not obviously belong in the second to sixth of these lists will be issued into the Business List, even though the subject matter of the claim cannot properly be characterised as a ‘business claim’. The list is a catch-all. The opening words of paragraph 14 of the Advisory Note make it clear that: “The various examples of cases dealt with in each category are not exhaustive”. And so, a breach of confidence claim and/or a privacy claim are properly issued into the Business List even though, in the case of the latter, the drop down menu to be used by the claimant at the point of issue does not include privacy claims as a category.

Ms Marzec submitted in her skeleton argument that:

“In the light of the recent formation of the Media and Communiciations List and the Business and Property Courts, the allocation of work within the High Court has changed. The way business was previously allocated is of no or extremely limited relevance to decisions as to allocation today.”

For the reasons I have explained, this submission is not right. The creation of the B&PCs has changed nothing other than adding an umbrella title to a wider cadre of work than is found in a Division or Specialist List and the M&CL is merely internal to the workings of the Queen’s Bench Division. There is no basis for asserting that the omission of a specific reference to privacy claims into the description of the Business List has had the effect that such claims should no longer be issued in the Chancery Division.

The defendant’s application therefore got off to a false start because both grounds for transfer were based on misconceptions. I will summarise how the application is now put later in this judgment.

There are two principal authorities that need to be considered. In Natl Amusements (UK) Ltd v White City Ltd Partnership [2010] 1WLR 1181 Akenhead J considered an application to transfer a claim from the Chancery Division to the Technology and Construction Court. His judgment reviews the pre-CPR authorities: the judgment of Lord Donaldson MR in Barclays Bank plc v Beminster [1989] 1 WLR 128 and the later decision of the Court of Appeal in Pantheon Ltd v Chandler Hargreaves Ltd (1989) 139 NLJ 329. Having done so, Akenhead J said this:

“23.

It is probably unnecessary to enter into a debate as to precisely what the pre-CPR test was for the transfer of proceedings to another division. The test was undoubtedly appropriateness or inappropriateness. All things being equal, as in the Pantheon case, the action would stay where it was. If on balance it was more appropriate that another division or specialist court within another division should deal with the case, it would not be a wrongful exercise of discretion to transfer it. The wording of RSC Ord 4, r 3 undoubtedly gave the court a discretion and it would be difficult to say that that was a wrongful exercise of discretion.

24.

When one comes to the CPR, one needs always to bear in mind the overriding objective. Indeed, the court must give effect to the overriding objective in interpreting any rule: CPR r 1.2. That objective is the just dealing with cases. That involves amongst other things dealing with cases in proportionate ways bearing in mind amongst other things the complexity of the issues and the importance of the case, expedition and fairness. One of the objectives of the drafters of the CPR was to give the courts a greater flexibility than they had previously had.”

Later in his judgment, the judge went on to consider in more detail how a court dealing with an application for transfer between Divisions should deal with issues of appropriateness.

“33.

In my view, the court is entitled to have regard to the relative appropriateness of the different divisions or specialist courts within them in considering whether the transfer should be made. Thus, given the increasing familiarity with and even greater competence of judges within the different divisions to deal with matters outside the traditional expertise of judges within their allotted divisions, the judge considering the transfer application should have regard to what is the more or most appropriate court to try the particular case. The judge considering the application must consider on the basis of the pleadings and other information put before the court upon what issues the bulk of the time, cost and resources involved in trying the case (and certainly the issues to be dealt with first) will be directed towards. Put another way, the court needs to ascertain if possible where and within what areas of judicial expertise and experience the bulk or preponderance of the issues lies. If there is little or only insignificant difference between the two venues, the discretion will generally be exercised in favour of the status quo to reflect the fact that a claimant is entitled to issue proceedings in whatever division it thinks fit and that either court is sufficiently experienced in addressing the issues. I would add that where it is clear that significantly greater expedition will be achieved in one court rather than another, that would be a material factor to be taken into account; expedition is a factor recognised within the overriding objective.

…

The decision in Natl was applied by Rose J in Appleby Global Group LLC v BBC [2018] EWHC 104 (Ch). The issues in Appleby were closer to this case than Natl because Appleby involved a claim for breach of confidence, although it did not concern issues of privacy. Rose J considered the creation of the M&CL and observed:

“20.

… the starting point is, as I have said, that the claimant can generally speaking choose in which Division to start the claim. Inroads have been made into a claimant’s ability to choose by the allocation of particular subjects to particular Divisions, by the creation of specialist lists about the grant of a specific power to the judges of a specialist list to control the cases that are heard in it. The CPR restricts the definition of a specialist list to a list created by a rule or Practice Direction because that ensures that before a specialist list is created, the lengthy oversight procedures and broad consultations that precede the making of a new rule or the issue of a new Practice Direction will have been followed. The M&CL is in its early stages and is proceeding by incremental steps. As Warby J stated in the “Conclusions and next steps” section of the report on the consultation, it was too early in the process to formulate any firm proposals for submission to the Civil Procedure Rules Committee. That committee would need to consider whether and, if so, how any changes to the CPR or any new Practice Direction should be taken forward. In my judgement, the creation of the M&CL in its current form does not mean that media cases wherever commenced should now be transferred into that list, against the wishes of the claimant.”

Rose J reached the conclusion on the facts of that case that there was no significant difference between the Business List (ChD) and the M&CL and judges hearing claims in both lists were sufficiently experienced to be able to address the issues that the claim was likely to raise. In reaching that conclusion she took in to account:

I do not see there is a significant difference of approach in the two cases. Both judges accept that the Division in which the claim is issued has some bearing on the outcome. It would be wrong, however, to place too much weight on the claimant’s choice of Division. But where the appropriateness of one Division is roughly matched by the other Division, it is likely that the status quo will be preserved. It seems to me this is saying little more than that the onus is on the applicant to show why the court should exercise its discretion to make an order for transfer. There is not, however, a presumption that a claim will remain in the Division in which it was issued. That would put the point much too high. Appropriateness, looked at from both directions is the right test, taking into account the provisions of the overriding objective, subject to the gloss that judicial expertise is likely to be the critical factor. And in some cases, as Akenhead J suggests at [33], the issues will need to be carefully analysed in order to see what the important issues are. Having conducted that analysis on the facts in the case before him he was able readily to conclude that the TCC was the more suitable venue.

I was also referred to CRE v Justis Publishing Ltd (unreported). The claim concerned misuse of private information by reporting a Court of Appeal judgment in a way that made the claimant identifiable. Master Price made an order transferring the claim to the County Court at Central London. The claimant applied to set the order aside and it came before Deputy Master Arkush on 20 March 2017. He set aside the order and transferred the claim to the Queen’s Bench Division. It seems the Deputy Master assumed, or was told incorrectly, that the M&CL, which had been set up since Master Price’s order had been made, was a specialist list. Hence his order refers to the need for the Chancellor’s approval under CPR 30.5(4). In a note of reasons attached to the order, that was no doubt intended to be of assistance to the Chancellor, he recorded his views that:

“2.

It seems to me to be strongly in the interests of justice that this matter be heard by a specialist judge, and that with the advent of the media and communications list (which was only announced after Master Price’s order was made), such a specialist list has now become available, and it seems to me to be the most appropriate forum.

3.

Furthermore, the Chancery Division does not seem to be the appropriate tribunal given the matters raised by the claim and the defendants forthcoming application for summary judgement.”

On transfer to the Queen’s Bench Division, the Chancellor’s approval having been obtained, the claimant applied to set aside the transfer order. Warby J dealt with the application without a hearing and gave short reasons for his decision dismissing the application on the basis that it was totally without merit.

I do not consider that either the decision of the Deputy Master or the decision of Warby J is of any real assistance to me when dealing with the defendant’s application, with all due respect to both of them. The decision of the Deputy Master appears to have been made on the misconception that the M&CL is a specialist list. Furthermore, there does not seem to have been a full evaluation of the appropriateness of the Chancery Division when set against the appropriateness of the Queen’s Bench Division. Warby J’s decision was made without hearing submissions. In any event, it is almost no assistance to have regard to decisions made on their own special facts.

Ms Marzec’s submissions can be summarised in the following way:

Mr Sherborne who appears for the claimant submits that it cannot properly be argued that judges in the Chancery Division do not have the familiarity or experience to deal with this type of claim. He points to the observation made by Rose J in Appleby that many of the leading cases in this area have been heard in the Chancery Division. In analysing the issues that are disputed in this claim, Mr Sherborne points to the following authorities, all of which are decisions made in the Chancery Division:

Mr Sherborne also points out that the two most recent privacy trials dealing with liability were heard in the B&PCs namely Ali v Channel 5 [2018] EWHC 298 and Sir Cliff Richard OBE v BBC (where judgment is pending). The former was heard by Arnold J (who was previously the editor of the Entertainments and Media Law reports) and the latter was heard by Mann J who has been the managing judge for a number of years in the phone hacking litigation. The trial in 2015 of Gulati v MGN, contrary to my Mathieson’s suggestion, involved some issues of liability. Two trials where liability was in issue were due to come before Mann J in the past few months but have been adjourned.

I make three initial points.

The premises on which the application was made have been shown to be incorrect. It is not right either that the claim would be tried earlier, or in a shorter period, in the M&CL or that the claim should not have been issued in the B&PCs Business List (ChD). The real issue is whether the M&CL in the Queen’s Bench Division is the appropriate, or the more appropriate, venue.

Ms Marzec urged on me that the natural home for privacy claims is the M&CL. Her submissions about the need for a pool of predictable decision making have some attraction. I was not provided, however, with any evidence about the numbers of privacy claims that have been issued in the respective jurisdictions and numbers of such claims that have been tried. Such evidence as was put forward was incomplete. It is clear, however, that there is a substantial body of judicial expertise in privacy claims in the B&PCs.

I approach the decision in the following way:

There is no basis for concluding that the Queen’s Bench Division M&CL is the appropriate, or the more appropriate, venue for this claim. Both the Business List (ChD) and the Queen’s Bench M&CL are appropriate. There are no good reasons to transfer the claim and disturb the legitimate choice made by the claimants at the point the claim was issued.

I will hand down this judgment in the absence of the parties. If there remain issues to be dealt with I will hear counsel on a date to be fixed by counsels’ clerks liaising with my clerk.