Update: The Media and Communications List

United Kingdom

From 1 October 2019, High Court claims for defamation, misuse of private information, harassment by publication and claims in data protection must be issued in the Media and Communications List of the Queen’s Bench Division (the “QBD”) (the “M&C List”).

The M&C List was established in 2017 in recognition of the decline in pure defamation cases and expansion of media law especially in the fields of privacy, harassment and data protection. Despite offering a specialist forum for resolving these disputes, adoption has been limited and there have been a number of contested applications by defendants trying to force their way into or out of the M&C List. Going forward, however the M&C List is now going to be imposed, through the Civil Procedure Rules (the “CPR”), as the compulsory forum for media and communications claims.

In terms of key technical changes:

  • Part 53 of the CPR (which currently relates to defamation claims only) will be updated to cover all claims for defamation, misuse of private information, harassment by publication and data protection. This provision establishes the M&C List as a specialist list of the QBD and provides that all claims relating to media and communications must be issued in the M&C List. A copy of the text of the new Part 53 is available here.
  • Practice Directions 53A and 53B will replace current Practice Direction 53. Copies of both new Practice Directions are available here. PD 53A will govern the transfer of claims into and out of the M&C List, providing both for parties to apply for transfer of a claim and the court to make a transfer out of its own motion. It is not clear whether any ongoing media claims outside of the M&C List will be transferred to it, but PD 53A permits the making of such an order.
  • PD 53B sets out in detail the required contents of statements of case for defamation claims (plus provisions on offers of amends and determination of meaning in a defamation context) and, more briefly, the contents of statements of case for misuse of private or confidential information, data protection and harassment claims.

  • The current Pre-Action Protocol for defamation claims will be replaced by new Pre-Action Protocol for Media and Communications Claims. A copy of the new Protocol text can be accessed here.
  • The new Protocol sets out, in a series of detailed bullet points, the information that a claimant should include in a letter of claim for each of the types of claim brought under the M&C List. This information may helpfully serve as a checklist for claimants seeking to bring claims, given that it reflects what must be demonstrated in order to bring a successful claim.

    Similarly, the new Protocol sets out the information that a defendant should include in its response to a letter of claim, which mirrors closely the equivalent provisions in the old defamation Protocol. It adds a provision that the defendant must indicate whether it accepts that an order for the claimant to bring the claim anonymously would be appropriate (if the claimant has indicated such intention in its letter of claim).

    In addition, the new Protocol provides brief guidelines on settlement and ADR. It emphasises that court proceedings should be a last resort and that the court will expect the parties to have considered ADR. Like the old defamation Protocol, it provides examples of ADR routes that parties may follow, including reference to an appropriate press regulator.

  • Practice Direction 40F will be amended. This practice direction deals with the monitoring of injunctions prohibiting publication of private or confidential information, in particular the Privacy Injunctions Statistics Form (the “Form”) which must be completed to record details of injunctions granted (or refused) by the court. The key change in new Practice Direction 40F is that the Form must be completed and agreed by the parties before being submitted and reviewed by the judge (it was previously the judge’s duty to complete the Form). A copy of the Form to be completed is annexed to the Practice Direction (which can be accessed here).

Practically-speaking, the changes mean that claims within the media and communications sphere will now be heard in a specialist court by specialist judges who are experienced in both management of, and the specific issues common to, media-related disputes. The idea is that judges in the M&C List will be better equipped to deal with the ever-increasing complexity of media law and that claimants and defendants will therefore receive a higher quality of justice.