On 29 October 2019 the Court of Appeal (Etherton MR, Sharp P and McFarlane P) made an order withdrawing the reference to the CJEU in the case of Stunt v Associated Newspapers ( EWCA Civ 1780) .
The Court had referred the following question to the CJEU for a preliminary ruling:
“Are provisions of national law such as subsections 32(4) and (5) of the Data Protection Act 1998 (‘the DPA’) – which provide that, where a data controller claims that any personal data to which proceedings against that data controller relate are being processed: (i) only for the purposes of journalism, artistic purposes, or literary purposes; and (ii) with a view to the publication of journalistic, literary or artistic material which has not previously been published by the data controller, such proceedings shall be stayed insofar as they concern unpublished personal data until (a) a determination by the Information Commissioner that conditions (i) or (ii) are not fulfilled, (b) the data controller’s claim is withdrawn or (c) the personal data are published – compatible with Articles 9, 22 and 23 of Directive 95/46/EC and Articles 7, 8 and 47 of the Charter of Fundamental Rights?”
The interesting issues arising on the reference were discussed by the Panopticon blog.
The reference was listed to be heard by the CJEU on 12 November 2019 however the difficulties faced by the claimant, Mr James Stunt, in the domestic courts have resulted in the reference being withdrawn.
On 29 August 2018, shortly after the Court of Appeal decision Mr Stunt was subject to a restraint order made by Her Honour Judge Munro QC at the Central Criminal Court. As a result, the defendant sought an order for security for costs. This was granted by Warby J 19 February 2019 who ordered the claimant to pay £460,000 by 19 March 2019 ( EWHC 511 (QB)).
The security was not paid by 19 March 2019 and on 6 June 2019 Mr Stunt was declared bankrupt. On 21 June 2019 Nicklin J refused an application by Mr Stunt for an extension of time to provide security for costs and his High Court claim was struck out ( EWHC 2005 (QB))[£].
The interesting issues concerning the compatibility of domestic data protection legislation will not now be considered by the CJEU. It is not clear whether, after Brexit, the same points concerning the compatibility of domestic legislation with Charter rights will be available to litigants in the English Courts.