7 June 2018Print This Post

High Court: Clinton privacy claim can be heard in business or media lists

Clinton: Claim over children’s privacy

The media and communications list (M&CL) in the Queen’s Bench Division, and the Chancery Division’s business list are not specialist lists and a privacy claim can be heard equally well in either, the High Court has ruled.

Chief Master Marsh said the notion of a specialist list was “not an easy one to grapple with” but the “short point” was that unless the CPR expressly provided for it, “the notion has no application”.

The master was ruling on application by Associated Newspapers that a privacy claim involving the children of Chelsea Clinton and her husband Marc Mezvinsky should be transferred from the business list to the M&CL.

The claim followed a series of articles on Mail Online in which the children’s faces were “plainly visible” and not pixelated.

Chief Master Marsh said the defendants had argued that the claim would be heard several months earlier in the Queen’s Bench Division, but it was now “common ground” that a listing in the Chancery Division was “likely to be slightly sooner”.

Counsel for the defendants further argued that the M&CL judges were familiar with “all the relevant” English and European case law on privacy and the protection of personal rights derived from the European Convention on Human Rights was “traditionally the domain of the Queen’s Bench Division”.

He argued that “only a handful of privacy claims” had been brought in the Chancery Division and none since the formation of the M&CL.

Chief Master Marsh said the M&CL, launched by Mr Justice Warby in February last year, was “not a specialist list”.

He went on: “It was not created by a provision in the CPR, or in statute, and without underplaying its significance, it is a means by which work that is already within the Queen’s Bench Division is allocated for its proper performance. The creation of the M&CL has no direct extra-divisional effect.”

He said the business list, part of the Business and Property Courts launched last summer, was also not a specialist list, though this was “less obvious than in the case of the M&CL” because it was created by a practice direction.

The master said the business of the Chancery Division was “entirely unaffected” by the creation of the Business and Property Courts, “which has been described as a rebranding as opposed to a restructuring”.

“The Chancery Division lives; but its identity has had a makeover.”

Unlike the M&CL, for which Warby J was the allocated judge, there was “no allocation of individual judges” to the business list.

“Any judge who is qualified to sit in the Chancery Division may hear any claim in that list. In practice, however, the judges’ listing function goes to great lengths to ensure that judges with appropriate experience hear particular cases.

“The work of the Chancery Division is allocated to the business list, the competition list, the financial list (with the Commercial Court), the insolvency and companies list, the property trusts and probate list and the revenue list.

“Any claim that does not obviously belong in the second to sixth of these lists will be issued into the business list, even though the subject matter of the claim cannot properly be characterised as a ‘business claim’. The list is a catch-all.

“And so a breach of confidence claim and/or a privacy claim are properly issued into the business list even though, in the case of the latter, the drop down menu to be used by the claimant at the point of issue does not include privacy claims as a category.

“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.”

Chief Master Marsh warned that courts hearing applications for transfers must “avoid parochialism” and “an excess of enthusiasm for one venue over another venue risks becoming doctrinaire”.

He said the “real issue” was whether the M&CL was the “more appropriate venue”, and that the defendant had not provided any convincing evidence to show there was a “greater depth of expertise” in one division than the other.

Dismissing the application, the master concluded that both venues were appropriate.

“There are no good reasons to transfer the claim and disturb the legitimate choice made by the claimants at the point the claim was issued.”

By Nick Hilborne


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