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Appleby Global Group LLC v (1) British Broadcasting Corporation and (2) Guardian News and Media Limited [2018] EWHC 104 (Ch)

Case date: 26/01/2018
Court: High Court | Business and Property Courts
Area/s of law: Breach of Confidence| Specialist lists | Transfer
Barrister/s: Catrin Evans QC | Jonathan Scherbel-Ball | David Glen

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Background

1. The Claimant issued a claim in the Business List (ChD) of the Business and Property Courts against the First and Second Defendants for breach of confidence. The Claimant’s claim arises out of the so-called ‘Paradise Papers’, and centres upon the Defendants’ use and subsequent publication of information which the Claimant asserts was and remains confidential to the Claimant.

2. Shortly after the issue of the claim form, the First Defendant issued an application for an order that the claim be transferred to the Media and Communications List of the Queen’s Bench Division of the High Court (MCL). The Second Defendant supported the application.

Issues before the Court

3. Should the Court exercise its discretion and order the claim to be transferred to the MCL?

Decision

4. The starting point in any transfer application is that a claimant is generally able to choose in which Division of the High Court it wishes to issue proceedings, (s.64; Senior Courts Act 1981) (at [11], [20]). However, the Court retains an inherent jurisdiction to transfer the claim to another Division of the High Court under section 65 of the Senior Courts Act 1981, and under CPR r.30.5 (at [12]-[13]).

5. Notwithstanding the aims and objectives of the new MCL, the Judge noted that the MCL was not a “specialist list” as defined by CPR r2.3(2). Therefore the applicable CPR rule was CPR r.30.5(1), and sub-rules (2),(3) and (4) did not apply. She went on to consider that the “lengthy oversight procedures” and “broad consultation” required prior to the implementation of a new rule and/or practice direction meant that “the creation of the MCL in its current form does not mean that media cases wherever commenced should now be transferred to that List, against the wishes of the claimant” (at [20]).

6. In considering whether the Claimant’s claim should be transferred, the Judge had regard to Natl Amusements (UK) Ltd and others v White City (Shepherds Bush) Ltd Partnership and another [2009] EWHC 2524 (TCC), where Akenhead J considered that:

“[30]…the Court needs to ascertain where and within what areas of judicial expertise and experience the bulk or preponderance of the issues lies. If there is little or only an insignificant difference between the two venues, the discretion will usually be exercised in favour of the status quo”.

7. The approach of Akenhead J was endorsed by Edwards-Stuart J in CFH Total Document Management Ltd v OCE (UK) Ltd and other [2010] EWHC 541 (TCC) where he emphasised that the expertise of the judges in a particular court to deal with the subject of matter of a claim was “the single most important consideration.”

8. It was argued on behalf of the Defendants that the “preponderance of issues” in this case lay firmly within the fields of media law, including a consideration of the Defendants’ Article 10 rights under the ECHR, and whether the Defendants’ journalism was sufficiently in the public interest (at [28], [30]). These are all issues that are particularly within the experience and expertise of the specialist judges of the MCL (at [31]).

9. The Judge accepted that the primary issue in the case was likely to be whether the Defendants could rely on the public interest defence (at [32]). However, she did not regard the Defendants submissions in support of their application to be sufficiently strong enough to outweigh the Claimant’s choice to bring its claim in the Chancery Division. The examples of the recent phone hacking litigation and HRH Prince of Wales v Associated Newspapers Ltd [2006] EWHC 522 (Ch) were both cited as examples of the Chancery Division’s competency in dealing with cases concerning the media (at [33]).

10. It was further accepted by the Judge that the Court would be required to understand journalistic practices and the concept and requirements of ‘responsible journalism’. However, this is something that would be the subject of evidence placed before the court, which can be assessed by a judge using general judicial skills (at [34]).

11. Similarly, the Judge noted that the issue of source protection had been the subject of extensive case law and was “not an area like technical construction design and specification or the law of insurance or patents where many of the words are unknown to those outside the field”. While the balancing of interests under Article 10 was “certainly a delicate and important task”, the guidance set out in the case law would be available to a judge in the Chancery Division, and that would not lead to more expense or be contrary to the overriding objective (at [35]).

Disposal

12. In light of the above, the Judge concluded that there was “no significant difference” between the two venues, which were both sufficiently experienced to address the issues in the case that were likely to arise. The First Defendant’s transfer application was dismissed.

Catrin Evans QC and Jonathan Scherbel-Ball appeared for the BBC, instructed by Pinsent Masons. David Glen appeared for Guardian News & Media Ltd instructed by its Editorial Legal Service department.

The judgment is available here.

2018-10-01T12:15:39+00:00January 26th, 2018|