Charlotte Mezvinsky v Associated Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Chief Master Marsh |
| Judgment Date | 25 May 2018 |
| Neutral Citation | [2018] EWHC 1261 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: BL-2017-000202 |
| Date | 25 May 2018 |
[2018] EWHC 1261 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Rolls Building,
Fetter Lane,
London, EC4A 1NL
Chief Master Marsh
Case No: BL-2017-000202
David Sherborne (instructed by Atkins Thomson Limited) for the Claimants
Alexandra Marzec (instructed by RPC LLP) for the Defendant
Hearing dates: 16 May 2018
Judgment Approved
On 16 May 2018 I heard an application made by the defendant for an order that the claim be transferred to the Queen's Bench Division for allocation to the Media and Communications List (“the M&CL”). I dismissed the application and said I would hand down a written judgement giving my reasons. Having dismissed the application, I gave directions for this claim to be listed for trial in the Business and Property Courts, Business List (ChD).
The claimants are the children of Chelsea Clinton and Marc Mezvinsky who act as their litigation friends. The claimants were aged 3 and 1 respectively when the particulars of claim were served in November 2017. The defendant is the publisher of Mail Online. The claim concerns a series of articles published on the website between 12 April and 1 November 2017. The articles included photographs of the claimants in which their face or features were plainly visible (they had not been pixelated).
The claimants say that the publication of the photographs was wrongful and constituted a breach of confidence, an unjustified infringement of their right to privacy and a misuse of their private information (paragraph 5 of the particulars of claim). However, as Ms Marzec, who appeared for the defendant pointed out, a claim for breach of confidence is not pursued. This is clear from the first prayer for relief which seeks damages, or an account of profits obtained by the defendant, “for invasion of privacy and/or misuse of private information.” The claim therefore comprises two causes of action; (1) the misuse of private information which will involve the court balancing the competing considerations contained in articles 8 and 10 of the European Convention on Human Rights and; (2) a breach of duty by the defendant in failing to comply with the data protection principles, with compensation pursuant to section 13 of the Data Protection Act 1998. In reality, however, the focus of the claim is on the privacy claim.
Mr Sherborne, who appeared for the claimants, summarised the principal issues in the claim as being the following:
(1) The defendant's assertion that the claimants did not have a reasonable expectation of privacy in relation to any of the photographs and that none of the photographs contain any private information about the claimants.
(2) To the extent that the claimants can establish a reasonable expectation of privacy, the balancing of the competing considerations under Articles 8 and 10.
(3) The relevance of the law of the state of New York, if any.
(4) The relevance of the publication of similar photographs by the claimant's parents and grandparents.
(5) If appropriate, the assessment of damages.
The application is supported by a witness statement made by Keith Mathieson of the defendant's solicitors. He says there are two grounds upon which an order for transfer should be made. First, at paragraph 14 of his witness statement, he made the assertion, now accepted as incorrect, that a trial listing for a week-long trial in the Queen's Bench Division would be likely to be listed in the early autumn of 2018, whereas, by contrast, a trial of similar length in the Chancery Division is more likely to go into the lists for 2019. In fact, it is now common ground that a trial listing in the Chancery Division is likely to be slightly sooner than one in the Queen's Bench Division. And it is not suggested that the trial time estimate will be shorter if the claim is transferred. I would add that the idea of a trial taking place in October 2018 overlooked the period that will be taken up by the pre-trial steps (disclosure, witness statements and expert evidence). The timetable set at the CMC runs until November 2018 making it unlikely that a trial could take place until 2019, regardless of the exigencies of listing.
The second ground is based upon a misconception about the effect of the creation of the Business and Property Courts and the status of the M&CL. Mr Mathieson says:
“24. … I challenge the suggestion that a privacy claim for damages for alleged distress against a media publisher may be issued in the Business List. Such a claim does not fall within the scope of that list's business.
25. … it is true that some lawyers have issued privacy claims in the Chancery Division, but those claims were, I believe, all issued before the Media and Communications List was established and indeed before the Business List was established. Now that those lists are in operation, it is surely desirable that privacy claims against the media ought to be dealt with in the list established for that very purpose.
26. … to the best of my current knowledge, I am not aware of any privacy case in which liability has been tried, on its merits, in the Chancery Division. The only trial in the phone-hacking cases so far concerned quantum, since liability was admitted.
27. I do not suggest that a Chancery Judge would not be capable of carrying out the evaluative exercise referred to in paragraph 13 above. All the judges of the High Court are of course competent to deal with any issued claim, particularly when properly and responsibly assisted by by the parties. [sic] However, the judges of the Media and Communications List are deeply familiar with all relevant case law and the principles involved; citation of authority will be much less extensive, if necessary at all. Given this long-standing familiarity with the cases, principles and issues, any hearing in this claim concerning a substantive matter before a Media and Communications judge is likely to be shorter than the same hearing before a non-specialist. Over the course of the case, having the matter dealt with in the specialist list is likely to save significant time and costs and is therefore in accordance with the overriding objective. The claim is likely to move more speedily, as I stated in paragraph 14 above.”
It is common ground now that a claimant is not precluded from issuing a privacy claim in the Business List (ChD) of the Business and Property Courts. For the reasons I will explain, there is concurrent jurisdiction to deal with this claim in the Business and Property Courts and in the Queen's Bench Division. To make that point good, and before dealing with the way in which Ms Marzec put the defendant's case at the hearing, it is necessary to set out the statutory framework for the allocation of work in the High Court and the relevant provisions of the CPR.
The statutory framework
Nothing turns on the precise terms of the relevant sections of the Senior Courts Act 1981 (“SCA”) and it suffices to summarise their effect:
(1) The three divisions of the High Court are provided for pursuant to section 5(1) of the SCA. Pursuant to section 5(5), without prejudice to other provisions of the SCA relating to the distribution of business in the High Court, all jurisdiction vested in the High Court under the SCA belongs to all the divisions alike.
(2) Chapter 6 of the SCA contains the provisions that are of principal relevance and section 61 is headed “Distribution of business among Divisions”. Section 61(1) distributes business between the divisions in accordance with Schedule 1 of the SCA. However, that general principle is subject to two important qualifications. First under section 61(2), rules of court may provide for the distribution of business in the High Court among the divisions. Secondly, the general rule is subject to section 61(3) which permits the Lord Chief Justice, with the concurrence of the Lord Chancellor, to direct any business in the High Court which is not assigned by the Act, or any other Act, to be assigned to such division as may be specified in the order. The Lord Chief Justice is also given power to amend Schedule 1 of the SCA.
(3) Schedule 1 makes no reference to claims for misuse of private information or breach of confidence. That is unsurprising because there are many types of claim that are not mentioned.
(4) Section 61(7) provides that rules of court may make provision for the distribution of the business of any Division of the High Court among the judges of that Division.
(5) Section 64 of the SCA is headed “Choice of Division by plaintiff”. It provides that, without prejudice to the power of transfer under section 65, the plaintiff is required to allocate any “cause or matter … to whichever Division he thinks fit.” Once this initial allocation has been made by the plaintiff, all subsequent steps are to be taken in the Division of the claimant's choice. Section 64 is important to because it recognises that, subject to the power of transfer, there is a degree of autonomy given to a claimant about the Division in which a claim is to be issued. This is significant where there is concurrent jurisdiction in two Divisions.
(6) Section 65 provides that any cause or matter may be transferred “… by such authority and in such manner as rules of court may direct, from one Division or judge of the High Court to another Division or judge thereof.”
The Civil Procedure Rules (“CPR”)
CPR Part 30 deals with the transfer of claims. Rule 30(5)(1) contains a bare power permitting transfer from one Division to another, the power being derived from section 65 of the SCA. The rule does not provide any criteria by which the power is to be exercised, unlike...
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