Offshore law firm Appleby has won the first skirmish in its case against the BBC and The Guardian newspaper over the ‘Paradise Papers’ leak, after the High Court refused the defendants’ bid to move the case from the Chancery Division to the media and communications list.
Appleby is claiming damages and a permanent injunction for breach of confidence against the pair. It has not been able to work out how many or what documents were taken, but alleges that they amount to several million covering the period from the 1950s to 2016.
The claim form was issued in the Business and Property Courts and allocated to the business list in the Chancery Division – generally, claimants can choose in which division to start the claim.
On the same day Appleby issued an application for an order that, amongst other things, the defendants deliver up copies of all documents they have “which emanate from or purport to emanate from the Appleby Group”.
The BBC, supported by The Guardian, sought an order to transfer the claim to the media and communications list (M&CL) which was set up in the Queen’s Bench Division last year.
Mrs Justice Rose rejected Appleby’s contention the M&CL was just simply an administrative measure to deal with the listing of cases in the QBD and not intended to make any changes to any other aspect of practice and procedure.
“I do not accept that the creation of the M&CL is so limited that it should have no influence on this court’s consideration of a transfer application.”
At the same time, it was not a specialist list such that the judge in charge, Mr Justice Warby, could control the cases that were heard in it, she said.
The CPR restricts the definition of a specialist list to a list created by a rule or practice direction, and the M&CL has not reached that stage yet.
Warby J himself has said that 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”.
Rose J recounted recent High Court rulings that indicated the court should take “a pragmatic approach” to determine the most appropriate venue of cases where defendants wanted it changed, and that the expertise of a court judges to deal with the subject matter of a particular claim was the single most important consideration.
She said the primary issue in the case was likely to be whether the defendants could rely on the public interest defence.
“However, I do not regard the factors relied on by the defendants in support of the application to transfer as sufficiently strong to override Appleby’s choice of a different division.
“There have been many leading cases in the field of media law which have been decided by judges in the Chancery Division [such as the phone-hacking cases]…
“I accept that the court hearing this dispute will need to understand journalistic practices and consider whether what the defendants did in this case can be described as ‘responsible journalism’, to the extent that that is relevant to the public interest defence.
“But wherever the case is heard, that issue will need to be the subject of evidence which will be placed before the court by the parties…
“The assessment of the nature and quality of the BBC’s pre-publication investigation into the documents and a consideration of the ethics of tax avoidance are matters that can be assessed by a judge using general judicial skills.”
Another question likely to face the court was whether and precisely how disclosure of documents in response to Appleby’s specific disclosure application may risk revealing the source of the information – although it was accepted that neither defendant knew the identity of the hacker.
Rose J ruled that this too would not require significant education “before a judge could reach the same state of knowledge and understanding that a judge for whom those matters are daily fare has already achieved”.
She continued: “The balancing of interests under article 10 is certainly a delicate and important task. But there is guidance set out in the earlier case law which is available to a judge in this division.
“I do not see that proceeding with the case in this division will lead to more expense or would risk hindering the expeditious and fair determination of the case in a way that would be contrary to the overriding objective.”
Rose J concluded: “In my judgment, this is a case where there is no significant difference between the two venues and both the Business List (ChD) and the M&CL are sufficiently experienced and able to address the issues that this case is likely to raise. I therefore decline to order the transfer.”