Those looking to serve a privacy claim out of the jurisdiction on a non-EU defendant will be interested in the news that a new jurisdictional gateway will soon be inserted into the CPR specifically for claims in breach of confidence and misuse of private information, where the relevant acts are committed and/or detriment is suffered within the jurisdiction. The new rule will have effect from 1 October 2015.
Paragraph 3.1 of Practice Direction 6B lists the grounds or "gateways" under which a defendant can be served out of the jurisdiction with the permission of the court. The new gateway will provide that a claimant may serve a claim out of the jurisdiction with the permission of the court where:
“(21) A claim is made for breach of confidence or misuse of private information where –
- detriment was suffered, or will be suffered, within the jurisdiction; or
- detriment which has been, or will be, suffered results from an act committed, or likely to be committed, within the jurisdiction.”.
Privacy practitioners may wonder why such a rule is necessary, particularly in relation to misuse of private information, which the Court of Appeal recently ruled in Vidal-Hall was a tort for the purposes of service out of the jurisdiction. As a result, the claimants in that case were permitted to serve their misuse of private information claims on Google out of the jurisdiction, in California, by relying on the existing tort gateway in CPR PD 6B. The claims for breach of confidence in Vidal-Hall did not however fall within the tort gateway, breach of confidence being an equitable wrong.
The origins of the new privacy gateway suggest that the answer to that question appears to be that it was considered prudent to make allowance for the possibility that the Supreme Court might overturn the Court of Appeal decision in Vidal-Hall. The Chancery Working Group (established earlier this year to consider proposals made by the Lord Chancellor’s Advisory Committee on Private International Law, chaired by Lord Mance) found in its recent report that it was possible that "the Supreme Court might disagree with the Court of Appeal" in relation to the Vidal-Hall issue. They also believed it made sense to deal with misuse of private information and breach of confidence explicitly in a new gateway for reasons of clarity. The new gateway will ensure, therefore, that privacy claimants can avail themselves of a jurisdictional gateway (although the Supreme Court has now refused permission to appeal in Vidal-Hall on the tort issue). Interestingly, the new gateway appears to be formulated on a proposal originally put forward and drafted by Tugendhat and Arnold JJ in January 2014.
It's worth noting that the circumstances in which English proceedings can be served on non-EU domiciled defendants who have no presence in England and Wales have been expanded significantly in other ways as well. In addition to the new privacy gateway, the other important change is a new general gateway which will enable claims against defendants to be tried together in this jurisdiction where the claims against them arise out of the same or closely connected facts, even if the further claim would not by itself fall within any gateway.
It remains the case, however, that even where a claim falls within a relevant gateway the court will not grant permission to serve out unless satisfied that in all the circumstances England is clearly or distinctly the appropriate forum for resolution of the claim, and it is appropriate to exercise the court’s discretion to permit service out.