No Court Transfer For ‘Paradise Papers’ Case

February 5, 2018

Following an application made by the BBC and supported by the Guardian, the British Court has declined to order a transfer of the Appleby “Paradise Papers” matter to another Court, stating both Courts are “sufficiently experienced and able to address the issues.”

Mrs Justice Rose dismissed the application to remove the case from the Chancery Division and to have it heard in the Media and Communications List of the Queen’s Bench Division.

Late last year it was confirmed that law firm Appleby is “taking legal action” against the BBC and the Guardian following their reporting of documents in the “Paradise Papers” matter.

The ruling was made by the High Court of Justice Business and Property Courts of England and Wales, where the BBC and Guardian News are defendants in a case brought by Appleby.

In the ruling, Mrs Justice Rose said, “The Claimant ['Appleby'] issued a claim form in the High Court on 4 December 2017 against the Defendants ['the BBC' and 'the Guardian'] claiming damages and a permanent injunction for breach of confidence.

“The claim arises out of the use and publication by the Defendants of confidential information contained in documents which Appleby alleges were illegally obtained from Appleby and which were and remain confidential to Appleby. The claim form was issued in the Business and Property Courts of England and Wales, allocated to the Business List [ChD].

“The hearing before me was the hearing of an application by the BBC issued on 6 December 2017 for an order that the claim be transferred from the Business List [ChD] to the Media and Communications List in the Queen’s Bench Division of the High Court. That application is supported by the Guardian.

“I accept that it is likely that the primary issue in this case will be whether the Defendants can rely on the public interest defence, though it may well be that other significant issues will also need to be determined.

“I consider it much less likely that the court will have to examine in any detail the trusts, tax structures and other banking arrangements disclosed by the documents, still less to adjudicate on whether they cross the line between avoidance and evasion.

“I do not therefore place any weight on the argument put forward by Mr Tomlinson QC on behalf of Appleby that that aspect of the subject matter of the litigation makes it more suited to be heard in the Business List [ChD].

“However, I do not regard the factors relied on by the Defendants in support of the application to transfer as sufficiently strong to override Appleby’s choice of a different Division. There have been many leading cases in the field of media law which have been decided by judges in the Chancery Division.

“For example, HRH Prince of Wales v Associated Newspapers Ltd [2006] EWHC 522 [Ch] involved a careful balance between the Article 8 rights of the claimant and the right to freedom of expression of the newspapers seeking to publish the Prince of Wales’ private travel journals, albeit in a very different context from the present case.

“Other Chancery cases have established new principles in the field of media law, for example the mobile telephone voicemail interception litigation has been managed and determined by judges of this Division, and led to the first judgment to analyse how damages for such breaches of privacy should be compensated.

“I accept that the court hearing this dispute will need to understand journalistic practices and consider whether what the Defendants did in this case can be described as ‘responsible journalism’, to the extent that that is relevant to the public interest defence. But wherever the case is heard, that issue will need to be the subject of evidence which will be placed before the court by the parties.

“In my judgment, this is a case where there is no significant difference between the two venues and both the Business List [ChD] and the M&CL are sufficiently experienced and able to address the issues that this case is likely to raise. I therefore decline to order the transfer.”

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