In 2012 Mr Justice Tugendhat, ahead of his retirement in 2014, made a plea for more media specialist barristers and solicitors to consider a judicial role: “As the recruiting posters put it: Your country needs you.”
He emphasised the particular burden of freedom of expression cases, which require judges, for example, to consider the rights of third parties, “even if those third parties choose not to attend court” and to provide reasons for the granting of injunctions at very short notice.
Without expert knowledge of the applicable law, this is no easy task. Fortunately, media law cases have not fallen apart with the respective retirements of Sir Michael Tugendhat and Sir David Eady, and recent specialists to join the High Court include Mr Justice Warby in 2014, and Mr Justice Nicklin in 2017 – both formerly of 5RB chambers.
The arrival of Mr Justice Warby, who was given the newly created role of Judge in charge of the Media and Communications List, has provided a welcome opportunity to propose changes to the procedure of media litigation in the Queen’s Bench Division, where the majority of English defamation and privacy claims are heard.
Since taking on responsibility for the cases involving one or more of the main media torts – including defamation, misuse of private information and breach of duty under the Data Protection 1998 – Mr Justice Warby has spoken about his hopes and plans for the list, and also conducted a consultation among those who litigate in the area, as well as other interested parties.
The consultation considered the adequacy of Civil Procedure Rules and Practice Directions; the adequacy of the regime for monitoring statistics on privacy injunctions; and support for the creation of a new committee.
As a socio-legal researcher rather than legal practitioner, my interest was piqued by the latter two questions.
For some time, I have been concerned that efforts by the Judiciary and the Ministry of Justice to collect and publish anonymised privacy injunction data have been insufficient, and also that the availability of information about media cases could be improved more generally.
My own efforts to access case files and records in 2011-13, to update research conducted by Eric Barendt and others in the mid 1990s, and to interrogate assertions of defamation’s “chilling effect”, proved largely unsuccessful and I was astonished how rudimentary and paper-based internal systems at the Royal Courts of Justice appeared to be.
Although public observers are entitled to access certain documents – such as claim forms – the cost and difficulty in locating claim numbers prohibits any kind of useful bulk research which would allow more sophisticated qualitative and quantitative analysis of media litigation.
I jumped, therefore, at the opportunity of the consultation to raise my concerns about the injunctions data, and to support the creation of a new user group committee.
My submission, with Paul Magrath and Julie Doughty, on behalf of the Transparency Project charity, made suggestions for revising the injunctions data collection process, including the introduction of an audit procedure to check information was being recorded systematically and accurately.
Following the consultation, Mr Justice Warby held a large meeting at the Royal Courts of Justice for all respondents and other interested parties at which he shared a table of proposals from the consultation, provisionally ranked as “most feasible”, “more difficult” and “most difficult”.
The last category also included proposals which would require primary legislation, which would be a matter for Parliament rather than the Judiciary.
I was pleased that our initial proposals on the transparency of injunctions data have been deemed practical and feasible in the first instance.
Also considered achievable are some of the proposals related to case management and listings, updating the pre-action protocol (PAP), the Queen’s Bench Guide, and civil practice directions in light of developments in privacy, data protection and defamation litigation and press regulation (not least to reflect the Defamation Act 2013).
This meeting also established the creation of a new Media and Communications List User Group (MACLUG) to which a range of representatives have been appointed.
The group comprises members of the Bar and private practice solicitors (including both claimant and defendant specialists), in-house counsel, clerks, and a costs practitioner.
Additionally, I have joined as a representative of public interest groups – i.e. those engaged in academic research and third sector work. The new committee met for the first time at the end of 2017, and members have formed smaller working groups to take forward the “feasible” proposals, which will be discussed with our respective constituencies in due course, and where relevant, eventually proposed to the Civil Procedure Rule Committee to consider.
In a speech to the Annual Conference of the Media Law Resource Center in September last year Mr Justice Warby identified his overall aims for the “big picture” and landscape of media litigation: to resolve disputes fairly, promptly, and at reasonable cost.
All of which were “easier said than done”, in his words. Quite so. But it is right that it should be attempted, and with judicial input where appropriate.
Mr Justice Warby’s efforts to date are to be applauded, and in particular, his open approach in addressing some of the flaws and inconsistencies of current practice, and evaluating structural and systemic issues.
That said, a committee formed by the judiciary is constrained in its remit, quite rightly. The consideration of changes to primary legislation should fall to Parliament.
It is therefore important that media law practitioners and other stakeholders should also work with the Ministry of Justice and HM Courts and Tribunals Service to inform ongoing work on courts modernisation, and push for wider consultation and involvement in reforms. A further challenge is to persuade government and parliamentarians to take on any issues requiring changes to legislation.
Part I of the Leveson Inquiry addressing, in part, the relationship between media proprietors, editors and politicians showed that the process of consultation on public policy affecting the news media has been subject to undue influence by certain private interests, and insufficiently transparent.
To this end, perhaps the new Lord Chancellor and Secretary of State for Justice, David Gauke MP, and the new Secretary of State for Digital, Culture, Media and Sport, Matt Hancock MP, might consider ways in which they can consult more openly and fairly in their development of policy and draft legislation on freedom of expression, reputation and privacy.
Dr Judith Townend is lecturer in media and information law at the University of Sussex and a member of the Queen’s Bench Division Media and Communications List User Group Committee
This is an edited version of an article which first appeared in Communications Law journal, volume 23, issue 1 (Bloomsbury Professional) and PA Media Lawyer, and the Transparency Project Blog and is re-published here with permission and thanks.