Privacy and data protection claims can be heard in the Business List as well as in the Media and Communications List

An application by a defendant to transfer a claim from the Business List (Chancery Division) to the Media and Communications List of the Business and Property Courts (Queen’s Bench Division) was refused on the basis that there was concurrent jurisdiction in both divisions to deal with a claim for misuse of private information and failure to comply with data protection principles.

Background

In Mezvinsky v Associated Newspapers Ltd [2018] 1261 (Ch), the defendant had published a series of articles on its website about the claimants, who were the young children of the daughter of a former US President, including photographs of them with their faces plainly visible. The claimants brought a claim in the Business List (Chancery Division) of the Business and Property Courts for the misuse of private information and failure to comply with the data protection principles.

The defendant applied to transfer the claim to the Media and Communications List (“MCL”) in the Queen’s Bench Division (“QBD”) on the grounds that: (1) a week-long trial was likely to be listed earlier in the QBD than in the Chancery Division; and (2) a privacy claim against a media publisher for alleged distress did not fall within the scope of the Business List.

The defendant argued that:

• it was desirable to deal with privacy claims against the media in the list established for that very purpose;
• the judges of the MCL are deeply familiar with all the relevant case law and principles involved; and
• it was not aware of any privacy cases in which liability had been tried on its merits in the Chancery Division.

The decision

Chief Master Marsh refused the application on the following grounds:

• It was incorrect that the trial would be listed earlier in the MCL - in fact it would be slightly sooner in the Chancery Division.
• Neither the MCL nor the Business List are designated in the Civil Procedure Rules (“CPR”) as “specialist” lists.
• The creation of the MCL was for the purposes of internal work allocation and had no effect outside the QBD itself. Similarly, the Business List was a catch-all list within the Chancery Division for claims that did not obviously fall within one of its other lists, including privacy claims; it was not confined to a special category of “business cases”.

• There was no convincing evidence that there was a greater depth of judicial expertise in the MCL. The approach to the case was likely to be the same in both lists, and the case management directions would also be the same. The creation of the Business and Property Courts merely added an umbrella title and did not alter the division in which a claim should be issued.

Chief Master Marsh concluded that both the Business List and the MCL would have been appropriate lists in which to issue these claims. Where two divisions were roughly equally appropriate, the court would generally preserve the status quo, i.e. leave the claim in the list in which it was issued. The onus was on the applicant to show why the claim should be transferred.

Comment

This judgment follows on from the recent application similarly unsuccessfully made by the Defendant in Appleby Global Group LLC v British Broadcasting Corporation & Anor [2018] EWHC 104, although if anything shows even greater preparedness of the Chancery Division to allow cases with a media connection to remain there.

As Chief Master Marsh noted, the MCL and the Business List cannot be specialist lists because this would require them to be expressly designated as such under the CPR, which they were not. In this regard, it seems to be a recipe for confusion that the Advisory Note issued on the creation of the Business and Property Courts describes its component courts and lists as “specialist”, in what Chief Master Marsh held was a non-technical use of the term.

Any change in the CPR to designate the MCL as “specialist” in the technical sense would require the agreement of the Chancery Division. At present it does not seem that such a change is under consideration, but if it were, this case may suggest that agreement would not automatically be forthcoming.