This autumn we see changes to the way media law claims are dealt with in the courts in England and Wales.
Carter-Ruck media law partner Alasdair Pepper is a member of the Media and Communications List Uses Group formed by Mr Justice Warby, who is in charge of the List, in 2017 (https://www.judiciary.uk/announcements/the-media-and-communications-list/). Alasdair has been involved, with other members of the Group, in formulating changes in practice requirements before a media case is commenced and where it is commenced.
NEW REQUIREMENTS FOR BEFORE YOU SUE
Until this autumn there was a set of rules – a Pre-Action Protocol – covering defamation only. Now this is replaced by a new Protocol that covers every type of media law or communications claim, including privacy, misuse of private information, harassment and defamation cases.
Anyone bringing a claim – whether or not they are using a lawyer – will need to write a letter to potential defendants explaining among other things why England and Wales is the right place for their claim and setting out the basis of their case. The new protocol includes guidance on what to put in the letter. With regard to defamation cases, the guidance has been updated, for example, pointing claimants to the requirement to show that the statement they are complaining about has caused them serious harm or is likely to do so. When it comes to privacy cases, the guidance states that claimants should set out why their claimed right to private and family life should be seen to outweigh the right of the defendant to freedom of expression.
The new rule creates a new specific type of judge called a Media and Communications List Judge. Before this autumn judges hearing media cases in the High Court could be specialists or non-specialists and be in the Queen’s Bench Division (QBD) or Chancery Division of the High Court. Increasingly the court has tried to list cases before specialists and the new arrangement formalises that.
The rule makes the Media and Communications List a more formal subdivision of the QBD. Now all claims to the High Court on media issues like defamation, privacy/misuse of private information, harassment in the media or data protection should be issued in the Media and Communications List. Other claims that may be issued in the List include anything that involves publishing or threatening to publish information online or in print, which would therefore cover malicious falsehood, breach of confidence, deceit and other claims including ones for breach of contract.
There are other changes in the new rules, including on when a claim should be made in the High Court or the County Court, and to the available procedures for commencing harassment claims. The full rule and pre-action protocol can be read online.
Overall, this is a welcome set of changes that are good for the administration of justice. The days in which defamation made up the majority of media cases are long gone, and a formal subdivision of the court dealing with all types of media case is likely to make the administration of such cases and their determination more efficient.