Media privacy cases – No monopoly for the Media & Communications List

As many of you will know, last year the High Court established a new ‘Media & Communications List’ (MCL), presided over by Mr Justice Warby (see the relevant announcement here). The idea behind the establishment of the MCL was that media-related tort cases brought in the Queen’s Bench Division (QBD), including cases for misuse of private information and breach of the data protection legislation, would be allocated to the MCL. But does the establishment of the MCL mean that claimants who want to sue the media are compelled to bring their claims before the MCL in the QBD? Well according to the recent judgment of Chief Master Marsh in the case of Mevinsky & Ors v Associated News [2018] EWHC 1261 (Ch) the answer to that question is a resounding no.In Mevinsky, the claimants, the grandchildren of former US President Bill Clinton, were pursuing claims for misuse of private information and breach of the Data Protection Act 1998 against Associated News. The claimants brought their claims in the Chancery Division. The claims were allocated within the Chancery Division to the Business & Property Courts, Business List. Associated applied for the claims to be transferred to the MCL on the basis that the claims did not fall within the business of the Business List and ought properly to be placed in the MCL, which was in effect the specialist list for dealing with privacy claims.  Chief Master Marsh dismissed the application . The following is a summary of his reasoning:

  • the MCL was not a specialist list provided for under the CPR but was merely a list to which claims already brought within the QBD could be allocated; the MCL ‘has no direct extra-divisional effect’
  • there was no basis for automatically excluding the claim from the Business List, as that list was equally not a specialist list under the CPR and could in principle accommodate the business raised by the claims;
  • moreover, the fact that the judges hearing cases listed in the MCL had considerable experience of dealing with privacy claims was not in itself sufficient to justify a transfer; Chancery judges had comparable experience and indeed many of the leading cases had been decided in the Chancery Division (e.g. Douglas v Hello, Murray v Express Newspapers and Gulati v MGN; the Chief Master also referred to the Cliff Richard case which was recently heard in the Chancery Division). In other words, there was no basis for saying that the MCL was the ‘natural home’ for such claims.

It is otherwise worth noting the following general observations made by the Chief Master on the approach to adopt in respect of inter-divisional transfers (at paragraph 29):

‘(1) As a self-administered warning, the court hearing an application for transfer must be careful to avoid parochialism. The interests of justice and the provisions of the overriding objective require the court to transfer a claim if that is likely to be of benefit to the parties.

 (2) An excess of enthusiasm for one venue over another venue risks becoming doctrinaire. …

(3) It is not the function of the court on an application such as this one, when dealing with the discrete facts of an individual case, to sidestep the proper operation of the powers under section 61 of the SCA, which will always involve consultation and a full review of the allocation of work as a matter of policy. I respectfully adopt the observations made by Rose J at paragraph [20] of her judgment [in Appleby Global Group LLC v BBC [2018] EWHC 104 (Ch)].’

Anya Proops QC