Statements in Open Court in Privacy and Malicious Falsehood Actions

Recent “Privacy” Statement in Open Court

The 55th Update to the Civil Procedure Rules, which comes into force on 6 April 2011 makes an important change to the provisions relating to “statements in open court”. At present, the right to apply to make such a statement before or after the acceptance of a Part 36 offer or other offer to settle is only available in when a party in relation to a claims for libel and slander (PD 53, para 6.1). Under the amended practice direction two further subparagraphs are added to cover malicious falsehood and privacy claims (see the PD Update document).

The amended version of PD 53 paragraph 6.1 will read as follows:

“This paragraph only applies where a party wishes to accept a Part 36 offer or other offer of settlement in relation to a claim for –

(2) slander.

(3) malicious falsehood

(4) misuse of private or confidential information”

This means that a claimant who wishes to accept an offer of settlement in a malicious falsehood or privacy case can now apply to make an “agreed” or “unilateral” statement in open court.  The rule is not limited to “media” cases and a statement would also be available in a claim for breach of commercial confidence.  An application for a statement in open court could be made in both the Queen’s Bench and the Chancery Divisions.

A statement in open court can therefore be used as an important mechanism for vindication for the claimant and also correction of false and/or defamatory statements even where the cause of action was in privacy. As readers will be aware the claim for misuse of private information can cover claims relating to private information which is false as well as information which is true (following the Court of Appeal decision in McKennitt v Ash [2006] EWCA Civ 1714). This development was discussed in earlier posts here and here.

Although, until now, the Practice Direction only covered claims in libel and slander, the practice has developed, with the approval of various judges, of parties agreeing statements in open court in privacy and related actions.  Examples of such statements include the following:

• Brad Pitt and Angelina Jolie v News Group Newspapers, 22 July 2010 – see the Schillings Press Release –  a “false privacy” case (see our post about the settlement)
  
• Matt Lucas v Express Newspapers, 25 May 2010 – see the Schillings Press Release – a “true privacy” case.
• Madonna Ciccone v Associated Newspapers, 15 May 2008 – see the Schillings Press Release – this was an action for misuse of private information and copyright and was an unusual example of a Statement in Open Court in the Chancery Division.
• Grant, Hurley and Nayar v Big Pictures, 15 May 2008 – see the Schillings Press Release – which suggests that this is the first Statement in Open Court in a privacy action.
• McKennitt v Ash, 5 October 2007 – this was a privacy case and appears to be the first such statement in open court where there was no libel element to the claim. This statement was part of the approved settlement of the second privacy action brought by Loreena McKennitt v Ash following publication of a slightly revised version of the original book which was the subject matter of the original action
• Sir Martin Sorrell -v- FullSix SPA & Others,28 March 2007 – this was a libel and privacy claim.