Data, whether it's confidential business material or the personal data of individuals, is at the heart of more and more disputes. Part of this is driven by the changes brought in by the GDPR but ultimately it reflects the fact that data is what drives today's economy. It's an area of law where for many years we're proud to have been guiding clients at the cutting edge. Today, 1 October 2019, is the start of a new regime for many of these claims. Significant changes to Part 53 of the Civil Procedure Rules ("CPR") have come into force, setting out new rules for media, communications, privacy and data protection claims. While Part 53 originally covered defamation claims only, it is now extended to claims for breaches of data protection law, claims in the related tort of misuse of private information, and some claims concerning confidential information. The changes include:
- The designation of the Media and Communications List as a specialist list of the High Court (the "M&C List"), where claims are heard by a new category of specialist judges known as Media and Communications List judges.
- All High Court claims that include a claim for defamation, misuse of private information, data protection and/or harassment by publication must now be issued in the M&C List.
- Practice Direction 53 is replaced by two new Practice Directions (53A (Transferring proceedings to and from the Media and Communications List) and 53B (Media and Communications Claims).
- A new Pre-Action Protocol for Media and Communications Claims is introduced. The new pre-action protocol specifies the information which claimants must now include in pre-action letters. For example, pre-action letters relating to data protection claims must now include: (i) such information as is necessary to identify the data subject; (ii) information or categories of information which is claimed to constitute personal data and sensitive personal data; (iii) sufficient details to identify the relevant processing; (iv) details of the duty(ies) breached and details of the manner in which they have been breached; (v) why the data ought not to be processed; (vi) nature and details of the damage caused by the processing/ breach of duty and (vii) the basis of any group claim (if relevant).
What will the changes mean in practice?
Part 53 of the CPR has been expanded to include all media and communications claims: no longer is it the sole province of defamation. This reflects an increased focus on these types of claims, in particular following the uptick in personal data disputes in the wake of the GDPR and the Data Protection Act 2018.
It is positive that the courts are recognising that increasingly complex privacy and data protection claims ought to be heard by specialist judges that are experienced in dealing with such issues. However, the practical impact of the designated M&C List remains to be seen. It's possible that this change could create further delays and a backlog of cases, if there are not enough Media and Communications List judges. We may also see satellite disputes as to whether claims should be transferred in to or out of the M&C List.
The new pre-action protocol requires claimants to include significantly more information in pre-action correspondence than was previously required. On balance most will welcome this, and indeed setting minimum standards should lead to more efficient disputes and help to save costs in the longer run. The new regime also includes a specific obligation for parties to act reasonably to keep costs proportionate to the nature of the case. Nonetheless, it's possible that the new rules could add costs to smaller cases and potentially deter claimants from issuing claims.
It will be interesting to see how these changes play out in practice.