Changes to the CPR for media and communications claims

From 1 October 2019, significant changes to CPR 53 will come into force, establishing the Queen’s Bench Division’s (QBD) Media and Communications List (M&C list), a specialist list of the High Court to deal with claims arising in the area of media and communications. The M&C list was created in May 2017 but had not been reflected in the CPR prior to these changes. The existing CPR 53 solely related to defamation claims, and was seen by many to be significantly out of step with current practice in media and communications litigation.

The new CPR 53 provides that any High Court claim in relation to the following must be brought within the M&C list:

• Defamation.
• Misuse of private information.
• Data protection.
• Harassment by publication.

M&C list

CPR 53.1(3) states that a High Court claim must be issued in the M&C list if it is or includes a claim for defamation, misuse of private information, data protection law or harassment by publication. This amendment means that any such claim must be issued at the Royal Courts of Justice, and it is anticipated that judges of the Chancery Division will become M&C list specialists.

Practice direction

The new practice direction to CPR 53 contains specific requirements for statements of case in claims for privacy, data protection and harassment by publication.

Interestingly, the new practice direction provides that in claims for harassment “arising from publication or threatened publication via the media, online or in speech”, CPR 65.28(1)(a) shall not apply and the claim should proceed under the Part 7 procedure in the M&C list. CPR 65.28(1)(a) currently provides that a claim under section 3 of the Protection from Harassment Act 1997 is subject to the Part 8 procedure. Such claims may involve a substantial dispute of facts, so this change to the practice direction arguably better reflects the nature of a claim for harassment arising from publication or threatened publication, rather than applying the procedure for traditional claims for harassment.

Pre-action protocol

The new protocol sets out specific requirements for letters before action in media and communications claims. The protocol sets out clearly, in bullet point form, the information that should be considered in such claims.

The new protocol also sets out the information that a defendant should include in its response to any letter before action, closely mirroring the old defamation protocol which it replaces. The defendant must indicate whether it accepts an order for the claimant to bring a claim anonymously.

Guidelines on settlement and alternative dispute resolution (ADR) are provided; specifically that the court will expect parties to have considered ADR (with the reference to the now defunct Press Complaints Commission being replaced with “a press regulator established to deal with complaints from members of the public about the editorial content of newspapers and magazines or an arbitrator scheme operated by such regulator”).

The provision of details such as these, particularly in relation to letters of claim for data protection claims, will come as welcome clarity for both practitioners and litigants in person, because the information required for data protection claims had not previously been set out in such a clear fashion.

Practical implications

Whilst the amendments to the CPR are, broadly speaking, a matter of procedure, they do serve to remind practitioners how this type of litigation has changed in recent years; particularly with a focus on data protection claims.

An increased awareness of a claimant’s ability to bring a claim under data protection legislation, particularly following the implementation of the GDPR, highlights one significant change to the CPR and demonstrates the impact that today’s digital age has had on litigation. This can be seen more specifically in the number of claims arising from an increase in content published online (not limited to publishing solely by traditional publishers).

There is often the temptation, in the digital age, to “throw in” additional causes of action, including data protection claims or a claim for misuse of private information. Practitioners should be aware that, in doing so, the claim may be transferred into the M&C List and out of the Business and Property Courts.

Arguably, an issue that arises with this change to the CPR is that these causes of action are not necessarily linked or connected in any way, yet are banded together under the umbrella of “media and communications” for the sake of convenience. The temptation may arise simply to band claims of this type together when contemplating potential causes of action for clients. However, practitioners should remember that each type of claim (defamation, misuse of private information, data protection and harassment by publication) has its own particular quirks or nuances that must be observed, despite being dealt with by the same list as other media and communications claims.

The biggest impact for practitioners will be the requirement to issue claims in the QBD, in the M&C list, whereas claims have previously been brought in both the Chancery Division and the QBD.

Practically speaking, it means that media and communications claims will now be heard in a specialist court by specialist judges. However the codifying of the mandatory use of such a list does raise questions about the potential for backlog, given that relatively few judges specialise in such claims. The change may be particularly problematic given the recent surge in media and communications claims. It remains to be seen how a relatively new list will cope with such a huge increase in demand from 1 October 2019, particularly given the QBD’s recent move to e-filing.

On a positive note, the new regime of the M&C list highlights that the courts are placing greater value on media and communications claims and realising that, often, such claims require specialist judges who are well-versed in the areas of defamation, misuse of private information, data protection and harassment by publication. The lasting effects of this will likely be seen in case law moving forward and, despite the potential practical difficulties, may prove to be of benefit to this increasingly important area of the law.

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This blog was first published on the Practical Law Dispute Resolution blog.