Practice Note: Changes to Media and Communications list, CPR 53, Practice Directions and Pre-Action
1.The following practice note applies to CPR changes regarding media and communications claims that will be enforced from 1st October 2019.
2. Changes have been made to CPR part 53.1 which has expanded to incorporate misuse of private information, data protection, harassment by publication and the publication or threatened publication of information via the media, online or in speech or other activities of the media, as well as defamation.
3. Part 53.4 states that claims included in the list must now be issued in the Queen’s Bench Division, Royal Courts of Justice and be marked in the top left corner ‘Media and Communications List’. A media and communications claim issued in the District Registry of the High Court must be transferred to either County Court or Royal Courts of Justice.
4. Practice Directions 53A and 53B have been introduced. PD53A deals with transferring cases in and out of the Media and Communications list. A judge may order a transfer, or a party may request a transfer by giving notice and receiving appropriate consent.
5. PD53A is subject to CPR part 30.5 which gives any Division of the High Court, and any High Court judge jurisdiction to order proceedings be transferred to that Division from another. They will consider expertise and experience as well as cost and time when making this decision and parties do have the opportunity to make submissions on the decision.
6. PD53B 4.1-7.3 specifies requirements for statements of case in defamation, determination of meaning and summary disposal. PD53B 8.1-10.4 details requirements for a statement of case for misuse of private information, data protection and harassment actions.
7. New Pre-Action Protocol will be introduced that apply to all cases within the scope of CPR part 53.1.
8. The purpose of the Protocol is to encourage the exchange of information at an early stage and to provide a clear framework for parties to explore early resolution while avoiding unnecessary expense.
9. What needs to be included in each Letter of Claim is listed according to the claim:
Defamation, Slander, Malicious Falsehood claims (3.2) should include:
10. The identity of the publication that made the statement and, if known, the date of the publication. A copy or transcript should be enclosed if possible and, in cases of slander, where and in what circumstances the statement was spoken;
11. The imputation the Claimant contends was conveyed by the statement and details of factual inaccuracies or unsupportable comments. The Claimant should give enough explanation to allow the Defendant to ‘appreciate why the statement is inaccurate’;
12. For defamation, the Claimant should give details of the serious harm suffered, as specified in section 1 Defamation Act. If the Claimant is a body trading for profit, the nature and value of the serious financial loss caused or likely to be caused by the publication of the statement should be detailed;
13. For slander or malicious falsehood, how or why the Claimant says the publication of the statement has or is likely to cause special damage or pecuniary loss or why the publication of the statement is actionable without this loss and
14. For malicious falsehood, an outline of the Claimant’s case with regard to malice.
15. Additionally, the Letter of Claim should include any facts or matters that make the Claimant identifiable from the statement and details of any special facts relevant to interpretation of the statement and/or any particular damage caused by the statement.
Privacy, Breach of Confidence claims (3.3) should include:
16. The information or categories of information the Claimant contends is confidential or to which the Claimant says they have a reasonable expectation of privacy with details of the circumstances giving rise to confidentiality or reasonable expectation of privacy.
17.The identity of the publication and why the Claimant says the information constitutes information to which they have a reasonable expectation of privacy or why it is confidential and should not be published. This should also include details of any damage or distress caused or likely to be caused by publication if an interim non-disclosure or final non-disclosure order to restrain publication is sought;
18.For misuse of private information, why the right to private and family life outweighs the right to freedom of expression and any details of the extent to which the information is already in the public domain and any damage caused or likely to be caused by publication and
19.If the Claimant wants to bring their claim anonymously under CPR PD16 they should indicate this with a reason as to why.
Data Protection claims (3.4) should include:
20.Any further information needed to identify the data subject, the information or categories of information the Claimant says constitutes personal data and if any information is sensitive personal data or falls into a special category of personal data;
21.The data controller addressed in the claim, details of the relevant processing and why it ought not be processed or further processed;
22. Details of the duty or duties that are said to have been breached and how, including any positive case on behalf of the Claimant and any damage caused/likely to be caused by the breach of duty and/or processing;
23.Where a representative data claim is brought on behalf of data subject, the party must show how they fulfil the relevant suitability criteria in Article 80(GDPR). As well as giving details of the data subjects on whose behalf the claim would be brought and confirmation that they have given the representative authority to represent them.
Harassment where the course of conduct includes publication claims (3.5) should include:
24.Details of the conduct that constitutes harassment and why the conduct amounts to harassment along with the identity of the publication and
25.If relevant, give details of any alarm, distress or financial loss it has or is likely to cause.
PRE-ACTION PROTOCOL DEFENDANT’S RESPONSE AND ADR
26.The requirements for the Defendant’s response remain mostly unchanged but for a malicious falsehood or defamation claim the Defendant should now state the defamatory or false imputation(s) they contend were made, if any, and
27.If the Claimant has indicated that they would like to make the application anonymously the Defendant should state if they agree this is appropriate and give reasons for this opinion.
Settlement and ADR
28.The ADR section (3.9) has been updated and there is more encouragement to utilise ADR – for example 3.9 of the current defamation Protocol (It is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR) has been removed;
29.The reference to the Press Complaints Commission has been removed and replaced with referring to a ‘press regulator established to deal with complaints from members of the public’.
30.A section has been added which asks parties to consider making an offer to settle under CPR part 36 before commencing proceedings. This section also reminds parties that they can settle a defamation claim through an offer to make amends under sections 2-4 Defamation Act 1996.
31.More emphasis has been placed on court proceedings being a ‘last resort’ and the cost implications of commencing proceedings without having properly carried out or considered the procedures listed in the Protocol are also emphasised.
32.The new Protocol also asks that if the procedure in the Protocol is followed but no resolution found, they parties review their respective positions. It also urges the parties to try and avoid proceedings or, at least, narrow the issues so the case is as efficient as possible. This is a further example of ADR and settlement being encouraged and court proceedings being described as a ‘last resort’.