In 2017 a new list was created in the Queen’s Bench Division, to be known as the Media and Communications List, and Mr Justice Warby, a media law specialist, was put in charge of it. The list was designed to deal with the broader range of media-related claims than was dealt with under the old defamation jury list, including misuse of private information, data protection, malicious falsehood and certain types of verbal harassment. We wrote about the development here, in Media Litigation: a new approach .
Soon after his appointment Warby J set up the Media and Communications List User Group committee (MACLUG), including lawyers, representatives from the media and public interest groups, in order to consult over the management of the new list. The MACLUG user group committee meets regularly and subcommittees have been formed to deal with specific issues. The Transparency Project is represented by Judith Townend (University of Sussex) and Paul Magrath (ICLR), and one of the things we have been concerned with is to improve the quality and consistency of data concerning the making of interim privacy injunctions which judges are obliged to record under a practice direction (PD40F ) added to the Civil Procedure Rules in response to the furore over so-called “super-injunctions” in 2011. In his consultation, Warby J asked users whether (a) continued collection of such statistics was worthwhile, and (b) the current system was adequate. The response of The Transparency Project (yes, worthwhile; no, not adequate) can be downloaded here (PDF).
Following the consultation, a MACLUG sub-committee, which included Judith Townend, made proposals for redrafting and refining the practice direction and the accompanying form. The changes were designed to capture more information about the parties and the nature of the proceedings in which such orders have been made and to ensure that all relevant data is captured by the process. Although the amendments were uncontroversial and easily agreed within the committee and by the judge, it took almost a year since that point to achieve the consequential change to the practice direction, and we are still not even sure if the relevant form has been updated.
Part of the reason for the delay was the need to await the enactment and parliamentary approval of secondary legislation in the form of a statutory instrument, which was needed to amend the Civil Procedure Rules (itself a statutory instrument). The Civil Procedure (Amendment No 3) Rules 2019 (SI 2019/1118 (L. 8)) were eventually laid before Parliament on 18 July and came into effect on 1 October 2019.
The effect of rule 4 of the new statutory instrument is to replace the current CPR Part 53 (Defamation Claims) with a new Part 53 to provide for the additional claims to be dealt with under the Media and Communications List, such as misuse of private information and breach of duty under the Data Protection Act. The changes to PD40F are not set out in the SI itself, but in an update (the 109th Update) to the Practice Directions under the CPR, “made by the Master of the Rolls under the powers delegated to him by the Lord Chief Justice under Schedule 2, Part 1, paragraph 2(2) of the Constitutional Reform Act 2005, and are approved by Paul Maynard MP, Parliamentary Under Secretary of State for Justice, by the authority of the Lord Chancellor”.
The changes are not reflected in the current edition of the CPR published on the Justice.gov.uk site, so you need to check the various updates listed on the home page before or after consulting the rules themselves, and download the relevant update. It is unclear when or by what process those rules are updated on that website. The page containing PD40F was last updated on 30 January 2017. And the form annexed to it will also need to be updated to the amended version — for which there is currently no provision even in the 109th Update: instead, it says, dismayingly, “The following forms have been either created or modified as part of this update: None associated with this update.”
Having secured the changes to the practice direction on the collection of privacy injunction data, we will need to monitor the data collected and ensure that it is both accurate and comprehensive. This remains a matter of doubt, given the apparent paucity of data in the last published figures and a question mark over their completeness, as noted by the Inforrm blog here and here.
Alongside the change to CPR Part 53 and PD40F, there is a new pre-action protocol (PAP) for media claims, which was one of the other achievable tasks flagged up by Warby J in his initial consultation. Meanwhile, the MACLUG committee and wider user group continues to scrutinise and develop improvements to media litigation in the High Court. As representatives of public interest groups, we will query the practical implementation of PD40F and urge for the relevant online materials to be updated to reflect the changes and the new form.
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Featured image: Privacy, by ESB Professional, via Shutterstock.