High Court publishes Media and Communications List Consultation Report

The Judge heading the new Media and Communications List (the List) – Mr Justice Warby – published the List's first Consultation Report on Wednesday of this week.

Why is the List being introduced?

In the Consultation Report's introduction, The Right Honourable Sir Brian Leveson notes that the List, created in March 2017, was born with two principle purposes in mind: to bring focus to the specialism of media and communications within the QBD; and, the modernisation of listing arrangements.

Legal developments over the last 3 decades including the Civil procedure reforms, Data Protection Act 1998, Human Rights Act 1998 and Defamation Act 2013, have had a significant impact upon media law. The evolution of media law as a result has driven the need for procedural change. Whereas historically media cases were almost synonymous with defamation claims, misuse of private information has become equally as important as a cause of action and data protection-based complaints continue to rise.

The Consultation Process

The consultation process was a speedy one, lasting only 28 days. It was the first step in Justice Warby's plans to roll out the List in collaboration with those professionals working in the industry, predominantly from a legal background. The 3 principle topics proposed in the Consultation Response Form were as follows:

1. the CPR and Practice Directions;
2. the collection of statistics on media injunctions; and
3. the possibility of meetings for users of the List and/or a User Committee.

The Responses

22 response forms were received from a variety of sources, including 6 firms of solicitors and 2 chambers. Taking each of the main topics as listed above in turn:

1. 18 respondents considered that the CPR and PDs do not adequately cater for those litigating in the field of media and communications. 13 respondents identified 'costs budgeting' as the most significant case management issue to be addressed, whilst 5 perceived this to be 'delay', and 1 as 'other'. Specific topics for change or attention are noted on page 7 of the Consultation Report, and include the proposal for a pre-action protocol for misuse and data protection claims.
2. The collection of statistics on injunctions received unanimous approval from those that expressed a view, however, 17 considered the current system to be inadequate. Only 8 respondents entertained the idea of legal representatives submitting data forms for the collection of statistics, with 11 favouring the idea that such a responsibility fall on Judges.
3. 20 respondents approved of the idea of interaction between users of the List, either via a committee or more ad hoc meetings.

Next Steps

Mr Justice Warby has confirmed that it is too early in the process to make any proposals to the Civil Procedure Rules Committee, but that this is a work in progress. The next step will be to convene a meeting of users, the date of which will be announced later in the year. Input from those in the profession is highly encouraged, and those interested should write to Mr Justice Warby's clerk at [email protected], with a particular focus on the following:

1. any proposed Agenda items for future meeting beyond those identified in the Report; and
2. how to ensure a fair spread of representation on any Users Group Committee.

What does this mean for our clients?

The very existence of a separate List for media-related actions in the High Court should in itself play a part in reducing procedural delays in such actions, as a result of dedicated Listing staff and a better focus on advance-planning. This is of course particularly useful where urgent remedies such as interim injunctions are being sought. The creation of the List, and the ongoing Consultation, can also be viewed as the Court's recognition of the developing complexities of this area of law: as noted above, media litigation is no longer restricted to defamation actions, but increasingly encompasses a wide range of other actions. Clients can now rest assured that, given time, Mr Justice Warby and his colleagues will strive to ensure that judges with the right expertise are allocated to decide these novel, complicated and often overlapping claims.  

To access the Consultation Report, please follow this link.