Media Litigation: a new approach
Earlier this year Mr Justice Warby was appointed to the newly created role of Judge in Charge of the Media and Communications List. We look at what this means in practice and how it will affect the future management of High Court media claims. The new list Speaking at the Annual Conference of the Media… Continue reading
Earlier this year Mr Justice Warby was appointed to the newly created role of Judge in Charge of the Media and Communications List. We look at what this means in practice and how it will affect the future management of High Court media claims.
The new list
Speaking at the Annual Conference of the Media Law Resource Centre in September, Warby J explained why he was “the obvious candidate” for the new role of Judge in Charge of the Media and Communications List, having spent his career as a barrister, latterly a QC, in chambers in Gray’s Inn (5RB) specialising in media law. He was at the time the only High Court judge who had specialised in media law at the Bar. (See Media Litigation in the High Court )
The new list had been developed in response to the decline of pure defamation litigation and the expansion of media law as a result of legislation such as the Protection from Harassment Act 1997, the Data Protection Act 1998 and the Human Rights Act 1998. The HRA in particular, had led to development of privacy rights with wide-ranging implications for domestic law, including the development of a new (and much-litigated) tort, misuse of private information.
“As privacy has grown in importance, and defamation litigation has tended to decline, many of the old certainties of our domestic law of defamation have had to be re-examined in the light of human rights law.”
While media law had diversified, the demand for jury trials had atrophied. The presumption in favour of jury trial in defamation cases was revoked under s 11 of the Defamation Act 2013, and while there remained a July List, it had hardly any business, little or none of which was media-related.
“The new world is mainly one is which judges decide more complex issues of law, or mixed fact and law, usually with reference to human rights laws.” Moreover, “media law is a significant speciality area, which deserves … the attention of judges who themselves have relevant experience.”
The virtual abolition of jury trial in libel cases had the advantage of avoiding the delay and expense incurred by arguing the same point at least twice. As Tugendhat J had noted in Cook v Telegraph Group  EWHC 763 (QB):
 … Trials by jury in libel cases now commonly involve the arguing of the same point at least twice and sometimes several times over. It is often not one trial by a judge with a jury, but one trial by a judge followed by another trial by a jury. Each party commonly seeks a ruling from the judge on as many issues as possible to the effect that the opponent’s case on that issue should be withdrawn from the jury. […]
 This multiplicity of opportunities to argue the same point is one of the major reasons why the costs of libel actions have become so disproportionate as to risk condemnation as an interference with freedom of expression and the right of access to the court (see MGN v UK  ECHR 1255).
Without a jury, it was now possible for many more cases to reach a final resolution more economically by early judicial decisions on key issues of fact, or mixed issues of law and fact.
The purpose of the new list, created in March 2017, was to enable cases within it to be managed and assigned to judges. Although parties who considered their cases met the parameters for inclusion in the list should label them as such, the court would also be able to move cases in or out of the list on application or its own motion. The overall aims of managing the list were “to resolve disputes fairly, promptly, and at reasonable cost.”
The next step had been to consult with those who litigated in this area and the judiciary with relevant experience, to consider three main aspects of the list’s management:
- The adequacy of the relevant Civil Procedure Rules and Practice Directions
- The adequacy of the regime for collecting statistics on media injunctions
- Whether to hold a meeting for users of the list, or form a user’s committee
That consultation was conducted in May 2017 and the resulting consultation report was published in July. The response was high and included some clear messages. 90% of the respondents considered that the relevant Civil Procedure Rules fell short of what they should be. The vast majority considered costs to be the more important case management issue to be considered, with delay coming second. Just about everyone thought a User Group meeting was a good idea.
The consultation report also showed that nearly 90% were dissatisfied with the adequacy of the regime for collecting statistics on media injunctions, and indeed statistics generally. Respondents were divided on the issue of whether the legal profession should be responsible for completing and submitting the data collection form, or whether the task should fall to the judge, with prompting from the legal profession.
The consultation report noted that “There may of course be other means of improving the system which would merit consideration. The Transparency Project submitted a detailed discussion of this topic.”
That proposal was not included in the report, but was published by the Transparency Project at the time of the consultation, as follows:
We welcomed the Master of the Rolls’ recommendation in 2011 for HMCTS to examine the feasibility of introducing a data collection system for all interim non-disclosure orders, including super-injunctions and anonymised injunctions.
Prior to this, there had been much confusion in the media and on social media about the number and type of injunctions that had been granted. There was some criticism of media exaggeration and distortion but at the same time, no reliable source of information existed with which to check the claims that were being made.
At a press conference marking the launch of the release of the Master of the Rolls’ report, Lord Neuberger said he ‘would not like to say precisely how many’ super injunctions or anonymous injunctions had been granted since 2000. The number could not be ascertained because no reliable records had been kept.
It is our view that it is wholly unacceptable that no reliable information exists for how many injunctions were granted historically. We were pleased therefore when the Ministry of Justice began publishing results twice a year. However, we do not think the system is reliable or complete, as has recently been observed on the Inforrm media law blog. It is worrying that HMCTS and the MOJ did not appear to notice the incompleteness of the data.
We recommend that judges should record all interim and final non-disclosure orders, including super injunctions and anonymised injunctions and relating to publication of private and confidential information (by mainstream media organisations or other publishers including individuals) – as defined in Practice Direction 40F.
We have two concerns about the process to date despite the PD being in force:
First, that not all such orders have been recorded. We do not know the reason for this. It is important that PD 40F is followed and enforced. Although we ticked option 5b, we do not think the judge’s completion of the form should rely solely on legal representatives prompting the judge to complete the form as they may have no incentive to do so. HMCTS should also ensure that the data has been correctly completed by the judge. Therefore, as part of the data collection exercise, HMCTS should have an audit procedure for ensuring data is being correctly and systematically collected.
Second, we do not think that the format of the data is accessible or as useful as it could be. We think that the anonymised case names should be published alongside the statistics to allow for verification of the data and cross-referencing with any published judgments (there would be rare exception where a ‘true’ super injunction was in force). We think the MOJ and HMCTS should also collect information relating to the eventual outcome: when an order is discontinued or expires, for example.
Given the narrow remit of this consultation, we will keep these comments brief. However, we have other ideas for how transparency and access to information in media proceedings could be improved with view to improving public understanding and education in these types of proceedings. We would welcome the opportunity to discuss these with you and would like to join any future meeting and discussions of users of the Media and Communications List.
The User Group
The first meeting of the Media and Communications List User Group took place on 7 November, chaired by Warby J. Those present included serving QB judges Dingemans, Jay, Julian Knowles and Nicklin JJ as well as Senior Master Fontaine and other masters, retired Jury List judges Sir David Eady and Sir Michael Tugendhat, and representatives of QB Listing and the MoJ.
Among the court users represented were a number of solicitors and barristers specialising in media law, in-house lawyers from newspapers, clerks from chambers and, so far as we can ascertain, one litigant in person.
There were two representatives from the regulator IPSO and one from IMPRESS. The Transparency Project was represented by Paul Magrath of ICLR and Dr Judith Townend, journalist and lecturer in media and information law, University of Sussex. One of the barristers present, Hugh Tomlinson QC of Matrix chambers, is also the editor of the Inforrm media blog. Another, Greg Callus of 5RB chambers, is also Complaints Commissioner at the (self-regulating) Financial Times.
The meeting discussed a number of substantive proposals for procedural change, including uncontroversial matters such as pre-action protocols, and more challenging issues such as the assignment of cases to particular judges, costs capping, the routine transfer of defamation claims from the county court to the High Court, and improvements in the system of early triaging of claims (particularly hopeless ones by litigants in person and/or by serial and potentially vexatious litigants) to weed them out before wasting too much judicial time on them.
In relation to statistics, Master Fontaine confirmed that statistics are collected on the number of defamation claims issued, but no separate statistics are available for the number issued by litigants in person. A representative of the MOJ explained that statistics on injunctions were based on reports from judges, which were not always filed. Warby J said this had now improved. He accepted that increased transparency was desirable, though it might pose resource challenges, and he undertook to explore whether the use of simple forms to be completed at the time of issue might enable improved statistics to be prepared.
Warby J’s proposal for the formation of a User Group Committee was welcomed. The committee should comprise about 15 practitioners representing various interests, such as private practice (claimant), private practice (defendant), clerks, in house lawyers, costs practitioners, and an additional category of “public interest/NGO/research” which would cover the Transparency Project and ICLR.
Although not raised in this initial meeting, one topic for future discussion might be the potential effect of the HMCTS Reform programme on the operation of the media and comms list, with not only the possibilities of digital case management but also that of virtual hearings and, eventually, online dispute resolution (ODR) as it develops to deal with more complex factual and legal issues.