“AVOIDING PAROCHIALISM”: TRANSFER BETWEEN DIVISIONS – NO EVIDENCE ONE DIVISION IS BETTER THAN ANOTHER

In Mezvinsky & Anor v Associated Newspapers Ltd [2018] EWHC 1261 (Ch) Chief Master Marsh refused an application to transfer from the Business and Property Courts to the Media and Communications List.

“the court hearing an application for transfer must be careful to avoid parochialism. The interests of justice and the provisions of the overriding objective require the court to transfer a claim if that is likely to be of benefit to the parties.”

THE CASE

The claimants are the children of Chelsea Clinton and Marc Mezvinsky. They brought an action for breach of confidence and unjustified use of private information. Proceedings were issued in the Business List of the Chancery Division. The Defendant made an application to transfer the action to the Queen’s Bench Division for allocation to the Media and Communications List.

THE MASTER’S DECISION

The Master considered the arguments and case law in relation to transfer.

(1) As a self-administered warning, the court hearing an application for transfer must be careful to avoid parochialism. The interests of justice and the provisions of the overriding objective require the court to transfer a claim if that is likely to be of benefit to the parties.
(2) An excess of enthusiasm for one venue over another venue risks becoming doctrinaire. Mr Mathieson appears to have fallen into this trap and it led him into error.
(3) It is not the function of the court on an application such as this one, when dealing with the discrete facts of an individual case, to sidestep the proper operation of the powers under section 61 of the SCA, which will always involve consultation and a full review of the allocation of work as a matter of policy. I respectfully adopt the observations made by Rose J at paragraph [20] of her judgment.
    1. The premises on which the application was made have been shown to be incorrect. It is not right either that the claim would be tried earlier, or in a shorter period, in the M&CL or that the claim should not have been issued in the B&PCs Business List (ChD). The real issue is whether the M&CL in the Queen’s Bench Division is the appropriate, or the more appropriate, venue.
    2. Ms Marzec urged on me that the natural home for privacy claims is the M&CL. Her submissions about the need for a pool of predictable decision making have some attraction. I was not provided, however, with any evidence about the numbers of privacy claims that have been issued in the respective jurisdictions and numbers of such claims that have been tried. Such evidence as was put forward was incomplete. It is clear, however, that there is a substantial body of judicial expertise in privacy claims in the B&PCs.
    3. I approach the decision in the following way:
(1) It cannot be said that the choice to issue the claim in the B&PCs was obviously wrong. It is therefore incumbent of the defendant to satisfy the court that an order for transfer should be made.
(2) The defendant has not provided any, or any convincing, evidence to show that there is greater, or a greater depth of, judicial expertise in one Division or the other. The evidence was focussed on other issues that have not proved to be helpful. The defendant glossed over, for example, the very large number of claims that are under management in three waves in the phone hacking litigation. As I have said, I am satisfied there is a pool of judicial expertise in both venues.
(3) Even if it could be said that there is more expertise amongst the judges who sit regularly in the M&CL, as long as there is an adequate pool of expertise amongst judges who sit in the Business List (ChD) (which there is), it does not follow that the Queen’s Bench Division is necessarily more appropriate than the Business List (ChD).
(4) This is not a case in which the approach to dealing with the case would be different if the claim had been transferred. The directions would have been the same.
(5) There are no other issues that make one venue or the other more appropriate. A difference of a few months concerning the trial date is marginal. In any event, although a minor consideration, it favours retention of the claim.
(6) This application is unlike, for example, Natl where Akenhead J concluded that bulk of the factual issues in the claim related to building and engineering and the practices of parties involved in design, construction and development: [37]. The existence of those factors made the claim obviously suitable for transfer to the TCC. Here, it cannot be said that the issues in the claim are obviously more suitable for determination in the Queen’s Bench Division given the conclusions I have reached about relative judicial expertise.
(7) It is wrong in my view for the court to give weight to ‘structural’ issues of the type instanced by Ms Marzec. Such issues are for the Civil Procedure Rules Committee and/or the Lord Chief Justice in conjunction with the Heads of Division. In any event, the creation of a pool of predictable decision making need not necessarily be premised upon all the judges making decisions in privacy cases sitting in the same Division.
  1. There is no basis for concluding that the Queen’s Bench Division M&CL is the appropriate, or the more appropriate, venue for this claim. Both the Business List (ChD) and the Queen’s Bench M&CL are appropriate. There are no good reasons to transfer the claim and disturb the legitimate choice made by the claimants at the point the claim was issued.