BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Rolls Building, London, EC4A 1NL
B e f o r e :
| APPLEBY GLOBAL GROUP LLC
|- and -
|(1) BRITISH BROADCASTING CORPORATION
(2) GUARDIAN NEWS AND MEDIA LIMITED
for the Claimant
Catrin Evans QC and Jonathan Scherbel-Ball (instructed by Pinsent Masons LLP)
for the First Defendant
Gavin Miller QC and David Glen (instructed by Guardian News and Media Limited, Editorial Legal Services) for the Second Defendant.
Hearing date: 16 January 2018
Crown Copyright ©
Mrs Justice Rose :
"Without prejudice to the provisions of this Act relating to the distribution of business in the High Court, all jurisdiction vested in the High Court under this Act shall belong to all the Divisions alike."
"64 (1) Without prejudice to the power of transfer under section 65, the person by whom any cause or matter is commenced in the High Court shall in the prescribed manner allocate it to whichever Division he thinks fit.
(2) Where a cause or matter is commenced in the High Court, all subsequent interlocutory or other steps or proceedings in the High Court in that cause or matter shall be taken in the Division to which the cause or matter is for the time being allocated (whether under subsection (1) or in consequence of its transfer under section 65)."
"65 (1) Any cause or matter may at any time and at any stage thereof, and either with or without application from any of the parties, be transferred, by such authority and in such manner as rules of court may direct, from one Division or judge of the High Court to another Division or judge thereof.
(2) The transfer of a cause or matter under subsection (1) to a different Division or judge of the High Court shall not affect the validity of any steps or proceedings taken or order made in that cause or matter before the transfer".
"30.5(1) The High Court may order proceedings in any Division of the High Court to be transferred to another Division.
(2) A judge dealing with claims in a specialist list may order proceedings to be transferred to or from that list.
(3) An application for the transfer of proceedings to or from a specialist list must be made to a judge dealing with claims in that list.
(4) An order for transfer of proceedings between the Chancery Division and a Queen's Bench Division specialist list may only be made with the consent of the Chancellor of the High Court."
"With the concurrence of the President of the Queen's Bench Division, the judge in charge of the Queen's Bench Civil List, Mr Justice Foskett, has invited Mr Justice Warby to take primary responsibility for cases involving one of the main media torts (defamation, misuse of private information and breach of duty under the Data Protection Act) and related or similar claims including malicious falsehood and harassment arising from publication or threatened publication by the print or broadcast media, online, on social media, or in speech.
To this end, a new list within the Queen's Bench Division called the Media and Communications List will be created and Mr Justice Warby will be designated as the judge in charge of the Media and Communications List. Subject to the ultimate authority of the President of the Queen's Bench Division and, where appropriate, following consultation with the Judge in charge of the Queen's Bench Civil List, the Judge in charge of the Media and Communications List will exercise judicial responsibility for the listing of cases of the nature set out above and of applications within them and will be responsible for considering emerging procedural issues in this context.
As from 1 March 2017 parties who consider that their case meets the foregoing parameters should entitle their claim appropriately upon issue or upon filing and Acknowledgement of Service. This should be done by inserting the words "Media and Communications List" below "Queen's Bench Division". Cases so designated will be assigned to the Media and Communications List by the court. The court will retain the power to move cases in and out of this list of its own motion or upon application.
These modifications apart, the new arrangement will not change existing practice (including the handling of those matters currently dealt with by the Queen's Bench Masters), but Mr Justice Warby is proposing to consult in due course with those who litigate in this area and the judiciary with relevant experience, with a view to establishing generally whether there are any improved practical arrangements that might be made for cases of the kind specified."
"As I have emphasised on many occasions, the media play and have always played a vital role in our democracy. Media communication is also very powerful. Holding the balance between freedom of speech and other competing rights and interests has long been a delicate task. Today, the proliferation of different forms of media communication and the ever-increasing role these play in public and private life makes that task all the more pressing and important."
"30. … Thus, given the increasing familiarity with and even greater competence of judges within the different divisions to deal with matters outside the traditional expertise of judges within their allotted divisions, the judge considering the transfer application should have regard to what is the more or most appropriate court to try the particular case. The judge considering the application must consider on the basis of the pleadings and other information put before the court upon what issues the bulk of the time, cost and resources involved in trying the case (and certainly the issues to be dealt with first) will be directed towards. Put another way, the Court needs to ascertain if possible where and within what areas of judicial expertise and experience the bulk or preponderance of the issues lies. If there is little or only an insignificant difference between the two venues, the discretion will generally be exercised in favour of the status quo to reflect the fact that a claimant is entitled to issue proceedings in whatever division it thinks fit and that either court is sufficiently experienced in addressing the issues. I would add that, where it is clear that significantly greater expedition will be achieved in one court rather than the other, that would be a material factor to be taken into account; expedition is a factor recognised within the overriding objective. On a similar basis, where it is established that costs will be less in one Division rather than the other, that is a material factor. In the context of the TCC, the Court should have specific regard to CPR Part 60 and the TCC Practice Direction with regard to the types of claim which are or may be appropriate for trial by the TCC. It is a reasonable presumption that, if the more or most appropriate court deals with the issues, there should be some saving in costs and time in disposing of the case.
34. In essence, in my judgement, the Court should take a pragmatic approach to determine the most appropriate venue, taking into account the experience and expertise generally of judges therein, and any time and cost saving to be achieved in one venue rather than the other. It is not the case that the party seeking transfer must establish that it would be inappropriate for the case to remain in the Division in which it was issued. However, if it was to establish that factor, that would be a very strong ground in favour of transfer."
"37. … That is not to say that the judges of the Chancery Division are unable or insufficiently experienced to deal with cases of this sort. However, the almost daily fare of the TCC is construction and engineering projects, whilst that is not the case, fortunately or unfortunately, in the Chancery Division."
"… There are many types of case where it is essential that the judge trying the case understands the practices, subject matter and terminology of the trade or industry concerned. That is why there are specialist lists. It is essential because fairness and the proper interests of justice require it. In addition, as Akenhead J has observed, the trial of the case by a judge with the appropriate experience is likely to result in savings of both costs and time."
i) the assertion in paragraph 8 of the Particulars of Claim that Appleby is under a duty to protect the confidentiality in the documents and that it has a reasonable expectation of confidentiality in the information held on the Appleby Server;
ii) the assertion in paragraph 9 that the confidential information contained in the documents held on the Appleby Server includes information protected by legal professional privilege and information relating to the private, personal or financial affairs of clients and employees;
iii) the allegations in paragraphs 16 and 17 as to the arrangement made between the Defendants and representatives of the German newspaper and the ICIJ in order for the Defendants to gain access to the ICIJ database;
iv) the allegation in paragraph 17 that the Defendants dealt with the confidential documents knowing that the ICIJ database contained confidential and privileged material;
v) the allegation in paragraph 17 that the Defendants had no grounds for suspecting that the database provided evidence of any unlawful activity on the part of Appleby or its clients and that no evidence of unlawful activity has been discovered by the Defendants;
vi) the allegation in paragraph 19 that the Defendants were under an equitable duty to keep the information confidential and not to misuse it because it was imparted in circumstances which imposed an equitable duty of confidence for the reasons set out in paragraph 20;
vii) the extent of any loss and damage suffered by Appleby including but not limited to the costs of dealing with regulatory entities, clients, employees, agents and third parties in respect of the breaches of confidence by the defendants;
viii) the nature of the relief to which Appleby is entitled.
"62 … While I have found that this was confidential, and personal to Mr Abbey, in my judgment the email was not so clearly private and confidential that it could be said that it was a breach of confidence or misuse of private information for Mr Gilligan to obtain and read it.
63 A journalist considering whether or not to publish information must, in many cases, have an opportunity to read the information to make that decision. It cannot be right that the court should in such cases too readily find that the obtaining or reading of the information is a breach of confidence. …"