Appleby Global Group LLC v (1) British Broadcasting Corporation and (2) Guardian News and Media Limited

C was the parent company of an international group of law firms based in offshore territories including Bermuda, the Isle of Man, the Channel Islands and the British Virgin Islands. The group provides legal advice to corporate and private clients. In 2016, C alleged that their servers had been accessed without authorisation by a hacker. Millions of documents from C’s servers were given to the German newspaper Süddeutsche Zeitung. The documents were made available to a number of media organisations, including the Ds, through the International Consortium of Investigative Journalists. The documents became known as the ‘Paradise Papers’.

C claimed that the Ds owed a duty of confidence to them and in breach of this duty they misused C’s confidential information by using and publishing confidential information in the documents.

C issued a claim in the Business and Property Courts (ChD) against the Ds, claiming damages and asking for a permanent injunction. The Ds applied for the matter to be transferred to the Media and Communications List of the Queen’s Bench Division.

Should the claim be transferred from the Business List (ChD) in the Business and Property Courts to the Media and Communications List in the Queen’s Bench Division?

The claim should not be transferred.

The Media and Communications List had not been designated as a ‘specialist list’ by a rule or practice direction and was therefore not a ‘specialist list’ for the purposes of CPR r.2.3(2). The governing provision was therefore CPR r.30.5(1) and not that rule’s sub-provisions (2), (3) or (4). However, the court does have the discretion to order a transfer to a different division under s.65 Senior Courts Act 1981 and CPR r.30.5(1).  This power should be exercised with the overriding objective in mind.

A claimant is generally entitled to choose the Division in which to start the claim, unless required to do otherwise. The subject matter meant that either division was appropriate, as proceedings were likely to concern whether the Ds could rely on a public interest defence rather than anything more technical. There were many judges in the Chancery Division who had decided media cases, and judges of both the Business List (ChD) and Media and Communications List were sufficiently experienced and able to address the issues that the case was likely to raise. Proceeding with the case without transfer would not lead to more expense or hinder the fair determination of the case contrary to the overriding objective. On balance, arguments raised by the Ds were not sufficient to override C’s choice of Division.

This judgment cements claimants’ choice of division when issuing a claim as the dominant factor in determining allocation. The Media and Communications List was first created in March 2017, and it is still relatively early in its development. However, the judge did note that the existence of the Media and Communications List has influence on whether to transfer an application, and the overriding objective may, in some cases, be best achieved by allocating cases to judges in that List.