BUSINESS AND PROPERTY COURTS
OF ENGLAND AND WALES
BUSINESS LIST (ChD)
London, EC4A 1NL
B e f o r e :
| (1) CHARLOTTE MEZVINSKY
(2) AIDAN MEZVINSKY
(acting by their Litigation Friends
Chelsea Clinton and Marc Mezvinsky)
|- and -
|ASSOCIATED NEWSPAPERS LIMITED
ALEXANDRA MARZEC (instructed by RPC LLP) for the Defendant
Hearing dates: 16 May 2018
Crown Copyright ©
CHIEF MASTER MARSH:
(1) The defendant's assertion that the claimants did not have a reasonable expectation of privacy in relation to any of the photographs and that none of the photographs contain any private information about the claimants.
(2) To the extent that the claimants can establish a reasonable expectation of privacy, the balancing of the competing considerations under Articles 8 and 10.
(3) The relevance of the law of the state of New York, if any.
(4) The relevance of the publication of similar photographs by the claimant's parents and grandparents.
(5) If appropriate, the assessment of damages.
"24. … I challenge the suggestion that a privacy claim for damages for alleged distress against a media publisher may be issued in the Business List. Such a claim does not fall within the scope of that list's business.
25. … it is true that some lawyers have issued privacy claims in the Chancery Division, but those claims were, I believe, all issued before the Media and Communications List was established and indeed before the Business List was established. Now that those lists are in operation, it is surely desirable that privacy claims against the media ought to be dealt with in the list established for that very purpose.
26. … to the best of my current knowledge, I am not aware of any privacy case in which liability has been tried, on its merits, in the Chancery Division. The only trial in the phone-hacking cases so far concerned quantum, since liability was admitted.
27. I do not suggest that a Chancery Judge would not be capable of carrying out the evaluative exercise referred to in paragraph 13 above. All the judges of the High Court are of course competent to deal with any issued claim, particularly when properly and responsibly assisted by by the parties. [sic] However, the judges of the Media and Communications List are deeply familiar with all relevant case law and the principles involved; citation of authority will be much less extensive, if necessary at all. Given this long-standing familiarity with the cases, principles and issues, any hearing in this claim concerning a substantive matter before a Media and Communications judge is likely to be shorter than the same hearing before a non-specialist. Over the course of the case, having the matter dealt with in the specialist list is likely to save significant time and costs and is therefore in accordance with the overriding objective. The claim is likely to move more speedily, as I stated in paragraph 14 above."
The statutory framework
(1) The three divisions of the High Court are provided for pursuant to section 5(1) of the SCA. Pursuant to section 5(5), without prejudice to other provisions of the SCA relating to the distribution of business in the High Court, all jurisdiction vested in the High Court under the SCA belongs to all the divisions alike.
(2) Chapter 6 of the SCA contains the provisions that are of principal relevance and section 61 is headed "Distribution of business among Divisions". Section 61(1) distributes business between the divisions in accordance with Schedule 1 of the SCA. However, that general principle is subject to two important qualifications. First under section 61(2), rules of court may provide for the distribution of business in the High Court among the divisions. Secondly, the general rule is subject to section 61(3) which permits the Lord Chief Justice, with the concurrence of the Lord Chancellor, to direct any business in the High Court which is not assigned by the Act, or any other Act, to be assigned to such division as may be specified in the order. The Lord Chief Justice is also given power to amend Schedule 1 of the SCA.
(3) Schedule 1 makes no reference to claims for misuse of private information or breach of confidence. That is unsurprising because there are many types of claim that are not mentioned.
(4) Section 61(7) provides that rules of court may make provision for the distribution of the business of any Division of the High Court among the judges of that Division.
(5) Section 64 of the SCA is headed "Choice of Division by plaintiff". It provides that, without prejudice to the power of transfer under section 65, the plaintiff is required to allocate any "cause or matter … to whichever Division he thinks fit." Once this initial allocation has been made by the plaintiff, all subsequent steps are to be taken in the Division of the claimant's choice. Section 64 is important to because it recognises that, subject to the power of transfer, there is a degree of autonomy given to a claimant about the Division in which a claim is to be issued. This is significant where there is concurrent jurisdiction in two Divisions.
(6) Section 65 provides that any cause or matter may 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."
The Civil Procedure Rules ("CPR")
"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 or more 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."
"In the light of the recent formation of the Media and Communiciations List and the Business and Property Courts, the allocation of work within the High Court has changed. The way business was previously allocated is of no or extremely limited relevance to decisions as to allocation today."
For the reasons I have explained, this submission is not right. The creation of the B&PCs has changed nothing other than adding an umbrella title to a wider cadre of work than is found in a Division or Specialist List and the M&CL is merely internal to the workings of the Queen's Bench Division. There is no basis for asserting that the omission of a specific reference to privacy claims into the description of the Business List has had the effect that such claims should no longer be issued in the Chancery Division.
"23. It is probably unnecessary to enter into a debate as to precisely what the pre-CPR test was for the transfer of proceedings to another division. The test was undoubtedly appropriateness or inappropriateness. All things being equal, as in the Pantheon case, the action would stay where it was. If on balance it was more appropriate that another division or specialist court within another division should deal with the case, it would not be a wrongful exercise of discretion to transfer it. The wording of RSC Ord 4, r 3 undoubtedly gave the court a discretion and it would be difficult to say that that was a wrongful exercise of discretion.
24. When one comes to the CPR, one needs always to bear in mind the overriding objective. Indeed, the court must give effect to the overriding objective in interpreting any rule: CPR r 1.2. That objective is the just dealing with cases. That involves amongst other things dealing with cases in proportionate ways bearing in mind amongst other things the complexity of the issues and the importance of the case, expedition and fairness. One of the objectives of the drafters of the CPR was to give the courts a greater flexibility than they had previously had."
"33. In my view, the court is entitled to have regard to the relative appropriateness of the different divisions or specialist courts within them in considering whether the transfer should be made. 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 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 another, that would be a material factor to be taken into account; expedition is a factor recognised within the overriding objective.
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, at 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 were to establish that factor, that would be a very strong ground in favour of transfer."
"20. … the starting point is, as I have said, that the claimant can generally speaking choose in which Division to start the claim. Inroads have been made into a claimant's ability to choose by the allocation of particular subjects to particular Divisions, by the creation of specialist lists about the grant of a specific power to the judges of a specialist list to control the cases that are heard in it. The CPR restricts the definition of a specialist list to a list created by a rule or Practice Direction because that ensures that before a specialist list is created, the lengthy oversight procedures and broad consultations that precede the making of a new rule or the issue of a new Practice Direction will have been followed. The M&CL is in its early stages and is proceeding by incremental steps. As Warby J stated in the "Conclusions and next steps" section of the report on the consultation, it was too early in the process to formulate any firm proposals for submission to the Civil Procedure Rules Committee. That committee would need to consider whether and, if so, how any changes to the CPR or any new Practice Direction should be taken forward. In my judgement, the creation of the M&CL in its current form does not mean that media cases wherever commenced should now be transferred into that list, against the wishes of the claimant."
(1) that there have been many leading cases in the field of media law which have been decided by judges in the Chancery Division; 
(2) the issue of understanding journalistic practises and considering what the defendants did was 'responsible journalism' (relevant to a public interest defence in that case) would be the subject of evidence to be placed before the court and would be assessed by a judge using general judicial skills; 
(3) leaving the claim in the B&PCs would not lead to more expense or risk hindering the expeditious and fair determination of the case in a way that would be contrary to the overriding objective. 
"2. It seems to me to be strongly in the interests of justice that this matter be heard by a specialist judge, and that with the advent of the media and communications list (which was only announced after Master Price's order was made), such a specialist list has now become available, and it seems to me to be the most appropriate forum.
3. Furthermore, the Chancery Division does not seem to be the appropriate tribunal given the matters raised by the claim and the defendants forthcoming application for summary judgement."
Is the Queen's Bench Division the more appropriate venue?
(1) The specialist judges sitting in the M&CL are familiar with all the relevant case law which includes both English and European jurisprudence. She submitted that all substantive hearings, including the trial, are likely to be dealt with more quickly and efficiently, and therefore more cheaply, than similar hearings before a non-specialist court. However, there was no evidence to support this submission and, as Mr Sherborne pointed out, the trial time estimate remains the same whether this claim proceeds in the Business List (ChD) or in the Queen's Bench Division.
(2) The protection of personal rights derived from article 8 of the ECHR, whether privacy rights or reputational rights, is traditionally the domain of the Queen's Bench Division. She submits that the methodology to be applied to a claim for misuse of private information was developed in the Queen's Bench Division largely by Eady J and Tugendhat J.
(3) Only a handful of privacy claims have been brought in the Chancery Division. No pure privacy claims have been issued in the Business List (ChD) since the formation of the MCL.
(4) Unlike many other areas of civil law, where rights are hard edged, privacy rights often have to yield to the rights of others, particularly the right to freedom of expression. The balancing of respective rights is a subjective evaluative exercise in which the court weighs the benefits of protecting personal privacy and family rights against the benefit of a free and vibrant media. Having privacy claims dealt with by one group of specialist judges is the best way to try to ensure a coherent body of law and consistency and predictability in decision-making including in relation to quantum of loss. This is good for the parties, who may know so far as is ever possible what the likely outcome will be. Removing, so far as possible, the element of unpredictability is also more likely to lead to settlement.
(1) The factors which should be taken into account when assessing a reasonable expectation of privacy was considered in the leading case of Murray v Express Newspapers  3 WLR 1360;
(2) The relevance, if any, of the law of the state of New York and the fact that it is said to have been lawful to have taken and published photographs there was considered in Douglas v Hello Ltd  3 WLR 881;
(3) The extent to which the images or similar images of the claimants have appeared already in the public domain was considered in RocknRoll v News Group Newspapers  All ER 98;
(4) The appropriate sum by way of compensation for misuse of private information was considered in Gulati v MGN  EWHC 1482 (Ch), .
(1) As a self-administered warning, the court hearing an application for transfer must be careful to avoid parochialism. The interests of justice and the provisions of the overriding objective require the court to transfer a claim if that is likely to be of benefit to the parties.
(2) An excess of enthusiasm for one venue over another venue risks becoming doctrinaire. Mr Mathieson appears to have fallen into this trap and it led him into error.
(3) It is not the function of the court on an application such as this one, when dealing with the discrete facts of an individual case, to sidestep the proper operation of the powers under section 61 of the SCA, which will always involve consultation and a full review of the allocation of work as a matter of policy. I respectfully adopt the observations made by Rose J at paragraph  of her judgment.
(1) It cannot be said that the choice to issue the claim in the B&PCs was obviously wrong. It is therefore incumbent of the defendant to satisfy the court that an order for transfer should be made.
(2) The defendant has not provided any, or any convincing, evidence to show that there is greater, or a greater depth of, judicial expertise in one Division or the other. The evidence was focussed on other issues that have not proved to be helpful. The defendant glossed over, for example, the very large number of claims that are under management in three waves in the phone hacking litigation. As I have said, I am satisfied there is a pool of judicial expertise in both venues.
(3) Even if it could be said that there is more expertise amongst the judges who sit regularly in the M&CL, as long as there is an adequate pool of expertise amongst judges who sit in the Business List (ChD) (which there is), it does not follow that the Queen's Bench Division is necessarily more appropriate than the Business List (ChD).
(4) This is not a case in which the approach to dealing with the case would be different if the claim had been transferred. The directions would have been the same.
(5) There are no other issues that make one venue or the other more appropriate. A difference of a few months concerning the trial date is marginal. In any event, although a minor consideration, it favours retention of the claim.
(6) This application is unlike, for example, Natl where Akenhead J concluded that bulk of the factual issues in the claim related to building and engineering and the practices of parties involved in design, construction and development: . The existence of those factors made the claim obviously suitable for transfer to the TCC. Here, it cannot be said that the issues in the claim are obviously more suitable for determination in the Queen's Bench Division given the conclusions I have reached about relative judicial expertise.
(7) It is wrong in my view for the court to give weight to 'structural' issues of the type instanced by Ms Marzec. Such issues are for the Civil Procedure Rules Committee and/or the Lord Chief Justice in conjunction with the Heads of Division. In any event, the creation of a pool of predictable decision making need not necessarily be premised upon all the judges making decisions in privacy cases sitting in the same Division.