The Queen’s Bench Division Media and Communications List User Group (MACLUG) met again on 15 February to discuss progress since its inaugural meeting on 7 November 2017 (see our earlier post Media Litigation: a new approach).
The meeting was chaired by Warby J as the judge in charge of the Media and Communications List, with Nicklin J and various representatives from media law firms, chambers, in-house lawyers, regulators, and unrepresented litigants in attendance. Also present were Judith Townend (University of Sussex) and Paul Magrath (ICLR) representing the Transparency Project.
At that inaugural meeting a User Group Committee had been set up to consider specific proposals in more detail, and two committee meetings had since been held. Part of the business of this second full meeting was to consider the projects on which the committee had been working: proposals for a new pre-action protocol; revisions to specified Civil Procedure Rules and Practice Directions to reflect the current law and improve procedure; and updating of the Queen’s Bench Division Guide.
Transferring cases from other Divisions
One of the matters discussed was the question of transferring cases from other divisions into the Queen’s Bench Division Media and Communications List (M&CL). At present, the M&CL was not a specialist list for the purposes of the Civil Procedure Rules, such as would enable the transfer in of cases. That would require a practice direction from the Lord Chief Justice. It was a matter that might be considered at some future date, but as things stood any transfer had to be done by the court in which the proceedings had been issued.
A recent case where the issue had arisen was Appleby Global Group LLC v British Broadcasting Corporation EWHC 104 (Ch) (in which claims for damages and a permanent injunction against media defendants arising out of the alleged misuse of confidential financial information in the so-called ‘Paradise Papers’ had been brought in the Chancery Division and the judge, Rose J, declined to transfer the case to the M&CL).
Warby J accepted that there might be cases involving media issues that needed specialist expertise (such as technical company law points) that justified their being heard in another court, such as the Chancery Division. To bring in a specialist judge from another list – what is known as ‘cross-ticketing’ – could encounter resistance from those in charge of a cadre of judges reluctant to let them go, unless there was a counter-switch from the other list into their own. But he favoured a rule directing media cases to the QBD at least in the first instance.
Even if, as was suggested by one representative, the M&CL might be more of a ‘comfort zone’ for the media parties in such cases, it was undesirable that there should be either a judicial turf war or any suggestion of forum shopping by claimants.
Injunctions Application Alert Service
Another of the matters discussed was the extension of the Press Association’s Injunctions Application Alert Service (formerly known as Copy Direct, and sometimes still referred to by judges as such) to non-family cases. Mike Dodd, the PA legal adviser, explained how the service had been set up at the instigation of the then President of the Family Division, Baroness Butler Sloss, in 2003-2005, to notify the media of applications for privacy injunctions and give their lawyers an opportunity to object. The service is primarily used for applications in the Family Division of the High Court but can also be used for notifying the media about applications in the Court of Protection, the Queen’s Bench Division, the Administrative Court, the Chancery Division, and for applications for reporting restrictions or anonymity orders in Coroners’ Courts.
There does not currently seem to be any provision (or funding) for the Injunctions Alert Service to gather data or provide statistics about the number and type of injunctions, the courts which have made them, the type of case in which they have arisen, and so forth. (This was not discussed at the meeting but it should be noted that the service is a private one, managed by the Press Association, so presumably does not have any public duty of transparency).
With regard to transparency initiatives, Judith Townend, who sits on the MACLUG committee and the sub-group working on Practice Direction 40F, reported proposed modifications to expand the range and improve the quality of the statistics on privacy injunctions, following criticisms that official Ministry of Justice reports appear to be inaccurate. The changes proposed for PD40F include the introduction of a new stage for legal representatives to fill in a draft details form to submit with the Draft Order; it is hoped this will help prompt the Judge or their clerk to send a final version of the form to the MOJ for analysis. The proposed changes also introduce new categories for data collection, such as the category of defendant and notified third parties (to ascertain, for example, if a news media organisation is a defendant or notified third party). It is hoped that other issues concerning access to information about media cases will be addressed in due course. For further detail, and to share suggestions on transparency, access and data that could be relayed to the MACLUG committee, please contact: Judith.email@example.com
Another point raised at the public meeting was the assistance that might be given to unrepresented litigants in the M&CL, either by way of a simplified procedure to enable them swiftly to deal with cases that did not require a trial, or by way of a guide to enable them better to negotiate the existing procedure. Warby J was more inclined to consider the latter. Summary procedures were already in place to deal with the former point, and their application depended on the type of case and the merits, rather than on the situation of the litigant.
This post originally appeared on the Transparency Project blog and is reproduced with permission and thanks.
Featured image: Newspaper, by Silke Remmery, via Flickr.