Mostyn Neil Hamilton v Mohamed Al Fayed [2000] EWCA Civ 3012

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

[2000] EWCA Civ 3012

Case No Case No: A2/2000/5840 PTA

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Between

Mostyn Neil HamiltonAppellant/Claimant

Mohamed Al FayedRespondent/Defendant

Before

The Master of the Rolls

Lord Justice Sedley

Lady Justice Hale

Mr Anthony Boswood, QC, Mr Tom Lowe and Giles Wheeler (instructed by Crockers Oswald Hickson, London, EC4A 3NJ) for the Claimant

Th Hon Michael Beloff, QC, Mr James Price, QC, and Heather Rogers (instructed by D.J. Freeman London, EC4A 1JU) for the Respondent

Date 21 December 2000

LORD PHILLIPS MR: This is the Judgment of the Court.

[2]This application is about a load of rubbish. More particularly it is about working papers of counsel that were discarded in the dustbin behind their chambers at 5 Raymond Buildings in Grays Inn. The documents were those of counsel appearing for Mr Hamilton in his unsuccessful libel action against Mr Al Fayed, and related to that action. From that dustbin they were stolen by one Benjamin Pell.

[3]Mr Hamilton applies to adduce fresh evidence that, in his contention, demonstrates that the stolen documents were purchased by Mr Al Fayed and used by him to unfair advantage in the action. He submits that it is at least possible that the use of these documents enabled Mr Al Fayed to succeed in the action, when otherwise he would not have done so. He further submits that, had the jury been aware of Mr Al Fayed's behaviour, this would have had so adverse an effect on the credibility of Mr Al Fayed and his witnesses that the jury would, or at least might, have rejected their evidence.

[4]In these circumstances Mr Hamilton applies for permission to appeal. He contends that the appeal should procure for him the following relief:(1) The jury's verdict should be set aside and judgment should be entered for Mr Hamilton for damages to be assessed; alternatively:

(2) The jury's verdict should be set aside and a fresh trial ordered: and

(3) The order for costs made in favour of Mr Al Fayed should be reversed. The Issues

[5]Mr Hamilton sued Mr Al Fayed for libellously alleging in a 1997 television broadcast that Mr Hamilton had solicited and accepted from him cash payments in return for tabling Parliamentary questions in Mr Al Fayed's interests. Similar allegations had been published by the Guardian newspaper in 1994, but the libel action brought in respect of these by Mr Hamilton and the lobbyist Mr Ian Greer was abandoned on the eve of the trial. Mr Al Fayed's defence was that his allegations, relating to the period from early 1987 to the end of 1989, were true. Because the allegations amounted to an assertion that Mr Hamilton was guilty of corrupt practice as a Member of Parliament, Mr Al Fayed was given permission shortly before the hearing to add to his defence an assertion, based upon documents lately produced by the Cabinet Office, that Mr Hamilton had in 1989 solicited from Mobil Oil a fee for having moved on its behalf or in its interest an amendment to a Finance Bill. This, it was said, served both as corroboration by similar facts of the first defence and as independent justification of the sting of the libel.

[6]It is desirable at the outset to identify the precise nature of the attack that Mr Hamilton seeks to make on the verdict. He does not contend that evidence has come to light which bears directly upon the substantive issues which the jury had to resolve. He contends that the verdict should be set aside for two related but distinct reasons:(1) Mr Al Fayed was guilty of a gross misconduct which had the effect of perverting the trial procedure with the result that the trial was unfair;

(2) Mr Al Fayed's misconduct was a matter which, had the jury been aware of it, would have been damaging both to his credit and to the credit of a number of vital witnesses called on his behalf.

[7]Mr Hamilton further contends that Mr Al Fayed's misconduct is on any footing a matter that should lead to the reversal of the order for costs made in his favour. Mr Hamilton's proposed appeal is founded exclusively on the fresh evidence that he seeks to adduce.

[8]A party who seeks to set aside a judgment or verdict by adducing fresh evidence to show that the court was fraudulently deceived can adopt one of two alternative procedures. He can appeal to the Court of Appeal and seek, on appeal, to adduce the fresh evidence, or he can bring a fresh action in which the relief sought is the setting aside of the judgment fraudulently obtained. Where the fresh evidence, or its effect, is hotly contested, the latter procedure may prove to be more satisfactory – see the comments of Lord Buckmaster in Jonesco v. Beard

[1930] AC 298

at p.299. Mr Beloff suggested more than once that Mr Hamilton would have been better advised to adopt that procedure.

[9]Having reflected on the matter, we doubt whether on the facts of this case Mr Hamilton could have sought to set aside the verdict in a fresh action. This is because he has no evidence which tends to prove that false evidence was put before the jury. He is not setting out to prove that the judgment was obtained by deceit. He seeks to set aside the verdict on the grounds that the procedure was unfair and that facts have come to light reflecting on the credit of the defendant and his witnesses. We do not believe that he could have launched such an attack otherwise than by appeal. Equally we do not believe that he could have sought to impugn the order as to costs save by appealing against it. Procedure and precedent

[10]The application for permission to appeal in this case is dated 22 nd March 2000. Under the transitional provisions relating to CPR 52 this means that the old Rules of Court are applicable to this application. RSC Order 59 rule 10(2) provided that, in the case of an appeal from a judgment after trial :

"no such further evidence (other than evidence as to matters which have occurred after the date of the trial…) shall be admitted except on special grounds"

. This contrasts with CPR 52. 11(2) which provides:

"Unless it orders otherwise, the appeal court will not receive- (a) oral evidence; or (b) evidence which was not before the lower court."

[11]Mr Beloff, QC, on behalf of Mr Al Fayed, submitted that, in considering whether there were 'special grounds' for permitting the introduction of fresh evidence we were bound by the decisions governing the introduction of fresh evidence on appeal that predated the introduction of the CPR. Mr Boswood, QC, on behalf of Mr Hamilton, did not challenge this contention. We consider that under the new, as under the old, procedure special grounds must be shown to justify the introduction of fresh evidence on appeal. In a case such as this, which is governed by the transitional provisions, we do not consider that we are placed in the straightjacket of previous authority when considering whether such special grounds have been demonstrated. That question must be considered in the light of the overriding objective of the new CPR. The old cases will, nonetheless remain powerful persuasive authority, for they illustrate the attempts of the courts to strike a fair balance between the need for concluded litigation to be determinative of disputes and the desirability that the judicial process should achieve the right result. That task is one which accords with the overriding objective. In adopting this approach we are following the guidance to be found in the judgment of May L.J. in Hickey v. Marks (6 July 2000), of Morritt V-C in Banks v. Cox (17 July 2000) and of Hale L.J. in Hertfordshire Investments Ltd v Bubb

[2000] 1 WLR 2318

[12]In Ladd v.Marshall

[1954] 1 WLR 1489

at p. 1491 Denning L.J. summarised the test for introducing fresh evidence on appeal as follows:

"To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible."

[13]These principles have been followed by the Court of Appeal for nearly half a century and are in no way in conflict with the overriding objective. In particular it will not normally be in the interests of justice to reopen a concluded trial in order to introduce fresh evidence unless that evidence will probably influence the result.

[14]Often the fresh evidence relied upon demonstrates that perjured evidence was given at the trial. In such circumstances, provided that the requirements of Ladd v Marshall are satisfied, the practice of the Court of Appeal has been to order a new trial without resolving the issue of whether the alleged fraud in fact occurred. That issue is best resolved on the retrial.

[15]Sometimes an appellant relies upon fresh evidence that there was fraud in relation to the conduct of the trial when this evidence puts the result of the trial in doubt, but does not go so far as to demonstrate that the result was probably wrong. In such circumstances the second requirement of Ladd v Marshall is not satisfied. The authorities indicate, however, that provided fraud affecting the trial below is clearly established, a retrial may be ordered notwithstanding this. Thus in Hip Foong Hong v H. Neotia and Company

[1918] AC 888

at p.893, Lord Buckmaster in giving the opinion of the Privy Council, stated:

"If no charge of fraud or surprise is brought forward, it is not sufficient to show that there was further evidence that could have been adduced to support the claim of the losing parties; the applicant must go further and show that the evidence was of such a character that it would, so far as can be foreseen, have formed a determining factor in the result. Such considerations do not apply to questions of surprise, and still less to questions of fraud. A judgment that is tainted and affected by fraudulent conduct is tainted throughout, and the whole must fail;"

[16]He added that the fraud in question 'must be both alleged and proved' and that this was better done in a fresh action rather than before the Court of Appeal.

[17]Lord Buckmaster returned to this theme in Jonesco v Beard

[1930] AC 298

. In that case the Court of Appeal had reversed the trial Judge on the basis of fresh evidence adduced by affidavit that challenged the account of the material facts given by the successful defendant. The House of Lords concluded that the Court of Appeal had misunderstood the evidence, and restored the decision of the trial Judge. Lord Buckmaster commented at p.300:

"It has long been the settled practice of the Court that the proper method of impeaching a completed judgment on the ground of fraud is by action in which, as in any other action based on fraud, the particulars of the fraud must be exactly given and the allegation established by the strict proof such a charge requires."

[18]After accepting that the Court of Appeal had jurisdiction to set aside a judgment for fraud in special circumstances, he added:

"If, however, for any special reason departure from the established practice is permitted, the necessity for stating the particulars of the fraud and the burden of proof are no whit abated and all the strict rules of evidence apply."

[19]The distinction between the criteria justifying an order for a new trial on the grounds of fresh evidence and the criteria justifying an order for a new trial on the grounds of fraud was illuminated by judgments of a powerful High Court of Australia in McDonald v McDonald (1965) 113 C.L.R. 529. That was an appeal against the grant of an order for a new trial by the Supreme Court of Queensland. Barwick C.J. at p.532-3 summarised the law as follows:

"The discovery subsequent to verdict of admissible credible evidence, which could not have been sooner discovered by the exercise of reasonable diligence in the circumstances, and which is of such probative value and significance that, taken with the evidence already given at the trial, it will in all probability be decisive of the issues between the parties in a sense opposite to that of the verdict, is a ground for the granting of a new trial. If the Court is satisfied that the fresh evidence fulfils these requirements, it will generally conclude that, therefore, the interests of justice demand that the issues be tried afresh. In that event, the circumstances that the fresh evidence may end to support the conclusion that the verdict was obtained by fraud, or by surprise, or by subornation of witnesses will not prevent the grant of a new trial on the ground of the discovery of fresh evidence, or require the Court to satisfy itself of the fraud, surprise or subornation of witnesses as the case may be: McCann v Parsons . Nor, in my opinion, does that circumstance lessen in any respect the stringency of any of the rules which apply to the grant of a new trial upon the ground of the discovery of fresh evidence. The fresh evidence, though it suggests fraud, surprise or subornation of witnesses, must yet fully satisfy all the criteria laid down with respect to fresh evidence warranting a new trial although it may be that, in some cases, the tendency of the evidence to show fraud may make it more likely to be conclusive. In my opinion, it would be a misreading of Lord Buckmaster's speech in Hip Foong Hong v H. Neotia & Co. to conclude otherwise. But if the fresh evidence does not satisfy all these requirements so that a new trial could not be ordered on the basis of the discovery of fresh evidence, but does tend to establish that the verdict was obtained by fraud or by surprise or that there has been subornation of witnesses, the Court may grant a new trial upon a motion therefor, though a separate proceeding is clearly the preferable course, if the Court itself, on a trial of such issues, finds the fact of the fraud, the surprise or the subornation of witnesses, as the case may be, to be proved to its reasonable satisfaction: Hip Foong Hong v H. Neotia & Co.; Jonesco v Beard . It is not necessary in that event that the evidence of the fraud, the surprise or the subornation, though it should be "fresh", should be evidence which would be admissible on the issues between the parties in the action; or that it should be found to be probably conclusive of those issues. The Court's conclusion upon the fresh evidence before it that the verdict was obtained by fraud, by surprise or that witnesses were suborned, is sufficient to justify setting aside the verdict and ordering a new trial."

[20]Barwick C.J. held that the fresh evidence relied upon neither established fraud nor was such as to indicate that the verdict was wrong and allowed the appeal. The other members of the Court gave concurring judgments. The Court thus did not have to deal with the question of the extent to which, if at all, established fraud had to be shown to have had a causative effect on the verdict in order to justify a retrial. On this question Menzies J. expressed the following views at p.542:

"The foregoing authorities do, I think, justify the proposition that, if a new trial is sought upon the ground of the discovery of fresh evidence which, if believed, would show that a fraudulent case has been presented to the Court at the original trial, and if it is also shown that this evidence was not available at the original trial notwithstanding the exercise of reasonable diligence, then a new trial will be ordered if the case made out is such as to satisfy the Court that, in the interests of justice, the matter in question should be tried afresh. This proposition, which relates only to the granting of a new trial on the ground of the discovery of fresh evidence, leaves untouched the rule that, if by any means it be affirmatively proved that the earlier judgment was tainted by fraud, it will, without more, be set aside. Thus, for instance, to prove the bribery of a witness or a juryman at the earlier trial by a party would require a verdict given in his favour to be set aside without speculation upon the result of the bribery."

[21]Because the Court of Appeal alone has the power to order a new trial on the ground of fresh evidence, it has been the rule rather than the exception that parties seeking to overturn a judgment on the grounds that it was obtained by fraud have appealed to the Court of Appeal. Lord Buckmaster's strictures have been generally disregarded. We are inclined to think that because the Court of Appeal has much wider powers to do justice in such a situation, including the power to order issues of fact to be tried, the prevalent practice is one attuned to the overriding objective. Different considerations may, however, apply within the Family Division. Fraud and Causation

[22]The conduct that Mr Boswood contends falls to be classified as fraud does not fall within any usual meaning of that word. All the definitions of 'fraud' in the Shorter Oxford English Dictionary include an element of deception. The alleged misconduct upon which Mr Hamilton founds his claim to relief does not involve deception. It involves the receipt of stolen goods and the violation of legal professional privilege. It is not conduct which bears directly on the substantive issues in the case. It is not conduct which demonstrates that the verdict was probably wrong - indeed it does not bear directly on the verdict at all. Nonetheless we are prepared to accept Mr Boswood's contention that the same principles should be applied to the behaviour alleged against Mr Al Fayed as those which fall to be applied in the case of more conventional fraudulent behaviour.

[23]When fraud is established in relation to the conduct of a trial, to what extent must the Court be satisfied that it impacted upon, or may have impacted upon the result before being justified in ordering a retrial? Was Menzies J. correct to suggest in McDonald that once it is established that a judgment is tainted by fraud, a retrial will be ordered without more ; that where a witness is bribed there is no need to speculate on the result of that bribery?

[24]O.59, r.11 of the old RSC provided:

"(2) The Court of Appeal shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, or because the verdict of the jury was not taken upon a question which the Judge at the trial was not asked to leave to them unless, in the opinion of the Court of Appeal, some substantial wrong or miscarriage has been thereby obtained."

[25]Rule 52.11(3) of the new CPR provides:

"The appeal court will allow an appeal where the decision of the lower court was : (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower Court"

[26]We consider that O.59, r.11 reflected a principle of general application. We do not believe that this principle has changed with the new Rules. A new trial should be ordered when the interests of justice so demand. Where a party has behaved fraudulently, been guilty of procedural impropriety or some other irregularity has affected the fairness of the trial the vital question to be asked is whether there is a real danger that this has influenced the outcome. If there is, a retrial should normally be ordered. If there is not, the interests of justice require that the decision should stand.

[27]The provisions of O.59, r.11 were very similar to those of the Criminal Appeal Act 1968. Recent decisions of the Criminal Division of this Court indicate that in certain circumstances procedural unfairness can render a jury's verdict to be quashed as 'unsafe', even where the guilt of the accused is not open to doubt: R v. Francom (31 July 2000); R v. Togher and others (9 November 2000). Those decisions take account of the decision of the European Court of Human Rights in Condron v The United Kingdom (2 May 2000). The approach in these cases cannot be applied in civil trials. If the result of an action between two litigants is not in doubt, it can benefit neither of them to require them to re-litigate their dispute. Credit

[28]The test in Ladd v Marshall requires that, if fresh evidence is to justify a retrial it must be such as would probably have an important influence on the result of a case. This will seldom be satisfied when the fresh evidence goes solely to credit. In Braddock v Tillotson's Newspapers Ltd

[1950] 1 KB 47

the unsuccessful plaintiff in a libel action sought permission for the Court of Appeal to cross-examine a reporter who had been a key witness at the trial in order to elicit fresh evidence going to his credit in that it would show that he had a string of criminal convictions. The Court rejected this application. Tucker L.J. held at p.53:

"If, however, this court is to depart from its invariable practice of confining such evidence to the relevant issues and is to admit fresh evidence directed solely to credit, I am of opinion that such a course would, if ever, only be justified where the evidence is of such a nature and the circumstances of the case are such that no reasonable jury could be expected to act upon the evidence of the witness whose character had been called in question. It would, in my view, be wrong for this court to admit fresh evidence directed solely to credit, merely because there is a possibility, or merely a reasonable probability, that such evidence would result in a different verdict."

[29]In a concurring judgment, Singleton L.J. observed at pp.56-7:

"It is not often that the Court of Appeal grants an application that further evidence be heard. The principles on which the court acts are set out in the authorities, to three of which we have been referred. So far as one can find, there is no record of any application for the recalling of any witness so that he may be cross-examined as to his credit. The reason for this may well be that it cannot lead to any finality; it is not relevant to any issue; it does not establish any fact which is an issue between the parties to the litigation. It is impossible to say in a particular case how much importance the jury attach to the evidence of one witness when there are others, and it cannot be said, positively, or with any degree of certainty, that the verdict would have been a different one if the jury had found that a particular witness had been convicted of some offence or offences."

[30]Braddock was followed by the Court of Appeal in Tombling v Universal Bulb Company Limited [1951] 2 T.L.R. 289. In that case a witness for the plaintiff was brought from prison to give evidence. Some pains were taken to make sure that this fact did not become apparent, but these fell short of any positive express or implied misstatement. Denning L.J. commented at p.297:

"I do not doubt that, if a favourable decision has been obtained by any improper conduct of the successful party, this Court will always be ready to grant a new trial."

[31]He held, however, that no impropriety had occurred.

[32]Meek v Fleming [1961] 2 Q.B. 366 was almost a carbon copy of Tombling ; almost, but not quite. It involved a stark conflict of evidence between the plaintiff, a press photographer and the defendant, a policeman. The policeman had been reduced in rank from Chief Inspector to Station Sergeant for being party to an arrangement to deceive a court of law. This fact was concealed from the Judge and jury by stratagems which amounted to positive deception. The plaintiff discovered this after he had lost the action and, on appeal to the Court of Appeal, sought an order for a new trial in order to put those facts in evidence. The Court of Appeal referred to the test applied in Braddock , but held that there was no need to consider whether it was satisfied as another principle applied where the Court had been positively misled. Holroyd Pearce L.J. defined this as follows at p.379:

"Where a party deliberately misleads the court in a material matter, and that deception has probably tipped the scale in his favour (or even, as I think, where it may reasonably have done so), it would be wrong to allow him to retain the judgment thus unfairly procured. Finis litium is a desirable object, but it must not be sought by so great a sacrifice of justice which is and must remain the supreme object. Moreover, to allow the victor to keep the spoils so unworthily obtained would be an encouragement to such behaviour, and do even greater harm that the multiplication of trials."

[33]In concurring in allowing the appeal, Willmer L.J. observed at p.383:

"Where the court has been thus deceived in relation to what I conceive to be a matter of vital significance, I think it would be a miscarriage of justice to allow a verdict obtained in this way to stand."

[34]The effect of these authorities on fresh evidence going simply to credit can be summarised as follows:(1) Where no deception has been involved, fresh evidence as to credit will seldom if ever be admitted for such evidence will not normally satisfy the second requirement in Ladd v Marshall of leading to the conclusion that the decision appealed against was probably wrong.

(2) Where it is clearly established by fresh evidence that the Court was deliberately deceived in relation to the credibility of a witness, a fresh trial will be ordered where there is a real danger that this affected the outcome of the trial. Arrow

[35]Mr Boswood, QC, argued that not merely should the jury's verdict be set aside, but that his misconduct should disqualify Mr Al Fayed from further participation in a trial, so that judgment should be entered for Mr Hamilton for damages to be assessed. He submitted that the recent decision of this Court in Arrow Nominees Inc and another v Blackledge and others

[2000] All ER (D) 854

demonstrates that this can be the appropriate response of the Court to abuse of process or serious misconduct, even where this has not rendered a fair trial impossible.

[36]The facts of this case are helpfully summarised in the headnote to the report:

"Bodycare (Health & Beauty) Ltd (the company), was incorporated under the Companies Act 1985. The shareholders were a British Virgin Islands company, Arrow, as to 24%, LB as to 24%, and as to 52% another company, Blackledge plc, owned by GB and MB. LB was the niece of GB and MB. Arrow was controlled by T, the partner of LB. Arrow and LB presented a petition for relief under c459 of the 1985 Act. The primary relief sought was an order that Blackledge plc, GB and MB in relation to the company. Prior to the trial, GB, MB and Blackledge plc (the Blackledge respondents) applied to strike out the petition on the grounds that T had allegedly disclosed documents which he knew were false, thus rendering a fair trial of the petition impossible. The application was dismissed but with the reservation that if further material emerged at trial showing breaches of T's disclosure obligations, the application could be renewed. At trial the application was renewed by the Blackledge respondents following T's evidence. The Judge held that there was a serious risk that documents relating to an alleged agreement (the 1994 agreement) other than the admitted forgeries were also forged by T, and that other relevant documents had been destroyed. The Judge however refused to strike out the petition on the basis, inter alia, that there would be no substantial risk to a fair trial of a case which was not based on the forged evidence of the 1994 agreement. The Blackledge respondents appealed."

[37]The Court of Appeal allowed the appeal, holding that the petition should be struck out. It held that the Judge ought to have reached the conclusion that, once the allegations in respect of which there was a substantial risk that T's conduct had rendered a fair trial impossible were put on one side, there was no case for relief which remained to be tried. The Court went on, however, to hold that there was a second, additional, ground for striking out the petition. In the leading judgment Chadwick L.J. explained this as follows:

"…for my part, I would allow that appeal on a second, and additional, ground. I adopt, as a general principle, the observations of Mr Justice Millett in Logicrose Ltd v Southend United Football Club Limited (The Times, 5 March 1988) that the object of the rules as to discovery is to secure the fair trial of the action in accordance with the due process of the Court; and that, accordingly, a party is not to be deprived of his right to a proper trial as a penalty for disobedience of those rules - even if such disobedience amounts to contempt for or defiance of the court - if that object is ultimately secured, by (for example) the late production of a document which has been withheld. But where a litigant's conduct puts the fairness of the trial in jeopardy, where it is such that any judgment in favour of the litigant would have to be regarded as unsafe, or where it amounts to such an abuse of the process of the court as to render further proceedings unsatisfactory and to prevent the court from doing justice, the court is entitled - indeed, I would hold bound - to refuse to allow that litigant to take further part in the proceedings and (where appropriate) to determine the proceedings against him. The reason, as it seems to me, is that it is no part of the court's function to proceed to trial if to do so would give rise to a substantial risk of injustice. The function of the court is to do justice between the parties; not to allow its process to be used as a means of achieving injustice. A litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial has forfeited his right to take part in a trial. His object is inimical to the process which he purports to invoke. Further, in this context, a fair trial is a trial which is conducted without an undue expenditure of time and money; and with a proper regard to the demands of other litigants upon the finite resources of the court. The court does not do justice to the other parties to the proceedings in question if it allows its process to be abused so that the real point in issue becomes subordinated to an investigation into the effect which the admittedly fraudulent conduct of one party in connection with the process of litigation has had on the fairness of the trial itself. That, as it seems to me, is what happened in the present case. The trial was 'hijacked' by the need to investigate what documents were false and what documents had been destroyed. The need to do that arose from the facts (i) that the petitioners had sought to rely on documents which Nigel Tobias had forged with the object of frustrating a fair trial and (ii) that, as the Judge found, Nigel Tobias was unwilling to make a frank disclosure of the extent of his fraudulent conduct, but persisted in his attempts to deceive. The result was that the petitioners' case occupied far more of the court's time than was necessary for the purpose of deciding the real points in issue on the petition. That was unfair to the Blackledge respondents; and it was unfair to other litigants who needed to have their disputes tried by the court. In my view, having heard and disbelieved the evidence of Nigel Tobias as to the extent of his fraudulent conduct, and having reached the conclusion (as he did) that Nigel Tobias was persisting in his object of frustrating a fair trial, the Judge ought to have considered whether it was fair to the respondents - and in the interests of the administration of justice generally - to allow the trial to continue. If he had considered that question, then - as it seems to me - he should have come to the conclusion that it must be answered in the negative. A decision to stop the trial in those circumstances is not based on the court's desire (or any perceived need) to punish the party concerned; rather, it is a proper and necessary response where a party had shown that his object is not to have the fair trial which it is the court's function to conduct, but to have a trial the fairness of which he has attempted (and continues to attempt) to compromise."

[38]The other members of the Court concurred. Ward L.J. drew attention to the added complexity and consequent substantial increase in costs caused by Mr Tobias' misconduct. He commented at paragraph 75 that if the C.P.R. were to receive a correct start, the Court had to make a clear statement that deception of the scale and magnitude that had occurred would result in a party's forfeiting his right to continue to be heard.

[39]In Arrow it was the petitioners' case that was struck out. We accept, however, that the same principle can apply to a defendant, at least to the extent of striking out any positive case that he is seeking to advance. The issues on this appeal

[40]The principles established by pre CPR authorities, which we have considered above, do not have to be slavishly followed. They are to be applied insofar as they advance the overriding objective of the CPR. The critical question is what is required to deal justly with this case. To answer that question, in the light of the authorities, it is necessary to address the following issues:(i) Was Mr Al Fayed party to the purchase of documents protected by legal professional privilege which had been stolen from the dustbin of the chambers of Mr Hamilton's counsel? If so:

(ii) Is there a real danger that those documents gave Mr Al Fayed a procedural advantage at the trial to which his success in the action was attributable?

(iii) Had the jury been aware of Mr Al Fayed's conduct, might this have had such an effect on his credibility and that of his witnesses that the jury would have found against him rather than in his favour?

(iv) Has Mr Al Fayed's approach to this litigation had so serious an effect on the trial process that he should be disqualified from advancing a positive case? The decision below

[41]The jury were required to address two basic issues of fact:(i) did Mr Al Fayed pay Mr Hamilton for asking parliamentary questions?

(ii) Did Mr Hamilton seek payment from Mobil for moving a parliamentary amendment?

[42]These issues were crystallised in the single question put by Morland J. to the jury:

"Are you satisfied on the balance of probabilities that Mr Al Fayed has established on highly convincing evidence that Mr Hamilton was corrupt in his capacity as a member of Parliament?"

[43]The jury answered "Yes" and found accordingly for Mr Al Fayed. For intelligible reasons neither party had sought special verdicts in relation to the allegations relating respectively to cash for questions and to the Mobil amendment. The single question put to the jury represented the single issue in the case.

[44]This is not to say, however, that the jury necessarily found every element against Mr Hamilton. Mr Beloff has contended, with perhaps an excess of self-deprecation on his client's behalf, that the overwhelming likelihood is that it was the Mobil allegations alone which sank Mr Hamilton. We do not agree, although – as will appear – we recognise the peculiar force of the Mobil issue. On the material before the court and in the light of Morland J's summing up, the jury may have found against Mr Hamilton on the cash-for-questions issue, the Mobil issue or both. Cash for questions

[45]If it was the first of these, however, it cannot have been because the jury believed Mr Fayed. For reasons now fully apparent to this court from the way in which he gave his evidence before us,

the Judge said to the jury:

"You may have come to the conclusion that Mr Al Fayed's evidence in detail is inconsistent and unreliable, that he has made many wild and unsubstantiated allegations about all manner of people, and that at times he has been vindictive towards those who he thinks have let him down or double-crossed him. You may have come to the conclusion that Mr Al Fayed's obsessional attitudes and beliefs have distorted his perception of truth … By his own admission, his recollection for detail and his memory of events is defective. His versions of events and occasions when he alleges payments were received from him by Mr Hamilton have varied and been markedly inconsistent one with another. All those matters mean, you may think, that Mr Al Fayed's appreciation of what is fact and what is fiction and what is truth and what is falsity is warped. Therefore I strongly advise you that it would be very dangerous to accept even those parts of Mr Al Fayed's evidence that you find credible, and indeed would be very unwise to do so, unless you are satisfied on evidence independent of Mr Al Fayed's evidence which you find highly convincing and find confirms Mr Al Fayed's evidence in a material way. Although confused, inconsistent and varying in detail, the main thrust of Mr Al Fayed's evidence was that Mr Hamilton received payments from him for his parliamentary activities. This is of course denied by Mr Hamilton. If you find that main thrust of Mr Al Fayed's evidence credible, my strong advice to you is that you only act upon it if you are satisfied by highly convincing evidence, independent of Mr Al Fayed's evidence, which confirms that evidence of Mr Al Fayed. ………….. … [T]he evidence of Miss Alison Bozek, Miss Iris Bond and Mr Philip Bromfield, if you find it highly convincing, is capable in law of confirming the thrust of Mr Al Fayed's evidence, being independent of his. It is for you to decide whether in fact is does so confirm his evidence."

[46]The evidence of Ms Bozek, Miss Bond and Mr Bromfield, which it is not necessary to particularise, was capable, if believed, of establishing independently of Mr Al Fayed's testimony, and to the high standard required by the Judge, the receipt by Mr Hamilton on a number of occasions of large sums in cash from Mr Al Fayed. Moreover, if the jury found the evidence acceptable, the impact of his admitted lack of candour in relation to other receipts in his parliamentary capacity (from the National Nuclear Corporation and United States Tobacco) will have reduced the value of Mr Hamilton's denials. It follows that the cash for questions evidence is fully capable of having contributed to the verdict in Mr Al Fayed's favour; and this in turn gives an initial purchase to Mr Boswood's submissions. Mobil

[47]The Mobil issue was nevertheless sharper and, on the face of it, more damning. Mr Hamilton was in 1989 a member of the Standing Committee considering that year's Finance Bill. On 13 th June 1989 he moved an amendment which, had it been accepted (in the event it was withdrawn), would have been of major benefit to Mobil and other oil companies. He said, according to Hansard:

"I add that in my capacity as a tax expert, I have advised an oil company that stands to benefit if my amendment is accepted."

[48]Mr Hamilton was subsequently paid the sum of £10,000 by Mobil. He was later to say that it was in his capacity as a parliamentary consultant that he had received this fee. "You may ask," the Judge said to the jury, "if he believed that he was retained by Mobil as a consultant, why did he not say so in clear terms?" He contrasted Mr Hamilton's "obscure declaration of interest" with that of another MP who had said in the same debate: " I will admit here I am a consultant to the Texaco Oil Company".

[49]Mr Hamilton's explanation was that he had in truth been retained, and subsequently paid, by Mobil as a tax consultant. He was able to produce a letter from Mobil's tax counsel Mr Peter Whiteman QC dated 28 th April 1989 which said:

"… I am pleased to say that my clients have now decided to take parliamentary action in connection with the provisions of the Finance Bill. I have strongly recommended to them that they should retain you … "

[50]It was sent to Mr Hamilton, who had been called to the Bar but was not in practice as a barrister, at the House of Commons. Mr Hamilton, supported in this regard by Mobil's group taxation manager, Mr Blumenthal, and his deputy Mr Deakin, said that he took "retain" in this letter to mean a fee-paying arrangement and therefore a consultancy. But Mobil were not privy to this letter, and Mr Whiteman's note of the consultation which followed on 8 th May 1989 gives no hint of the use of Mr Hamilton for his tax expertise. As

the Judge pointed out to the jury:

"It was Mr Whiteman, a QC tax specialist, briefing Mr Hamilton, who had only been, of course, a pupil barrister."

[51]The note of the consultation says this:

"It was agreed with Neil Hamilton that the parliamentary procedure to be adopted would be as follows. That at Committee stage, Neil Hamilton will put down an amendment to the provisions of Clause 116. That modification would take the form of proposing an amendment that [ the text is corrupt here ] apply the provisions of the Clause to any payment (made on or after 25 th October 1988), that is the date that the Inland Revenue Press Release was issued. Neil Hamilton would not put down an amendment that the Clause should be withdrawn, because if that is put down at Committee Stage and does not pass, then he will not be able to put down such an amendment at the Report Stage. In other words, Neil Hamilton's proposed course of action gives us a chance to object to the provision of the Clause both at Committee and Report Stage. The amendment to be put forward at Report Stage would be simply "

Leave out Clause 116"."

[52]A little later the note records:

"Neil Hamilton indicated that he would put down a Committee Stage Amendment the same day and that he would be seeking to arrange a meeting with the Treasury to discuss the provisions of the Clause."

[53]While, as the Judge told the jury, a meeting of this kind lay within the lawful area of a paid parliamentary consultancy (albeit the consultancy must be registered), the moving of an amendment for pay is, as Mr Hamilton readily accepted, a breach of parliamentary privilege (and, we would add, a crime: see the ruling of Buckley J. in R. v. Greenway (CCC, 25 June 1992) reported only at [1998] PL 357).

[54]It can be seen that the trap was already closing upon Mr Hamilton. Mr Whiteman for his part told the jury that he had not used the word "retain" to imply the payment of a fee. We refrain from comment on this. Mr Hamilton for his part relied on the word "retainer" to explain his subsequent request to Mobil for payment. But his evidence that this was purely for advice and consultancy sat uneasily with the contemporaneous evidence not only that all the expert advice had been given in consultation by Mr Whiteman, but that the sole role for Mr Hamilton agreed upon at the consultation, for which he understood himself to have been retained, was to table an amendment to the Finance Bill.

[55]It was in June 1989, as we have said, that Mr Hamilton moved the amendment. Later in the year, in August, Mr Hamilton wrote to Mobil to suggest further forms of help which he might give. Then at or near the beginning of September 1989 Mr Hamilton telephoned Mr Whiteman to ask about payment. Mr Whiteman passed on the request to Mobil and not long afterwards rang back to say that Mobil were offering a fee of £10,000. Mr Hamilton sent Mobil a bill for that amount, which was paid. It was expressed to be for consultancy services from May 1989.

[56]The evidence given principally by Mr Blumenthal was that Mobil had been "horrified" by the request for payment but complied with it because it was felt "that unwittingly we had incurred, shall we say, a moral obligation to pay this man". Mr Blumenthal also testified that when Mr Deakin, his deputy, relayed to him Mr Whiteman's telephone message about payment, he spoke to Mr Whiteman and "was told, that is by Mr Whiteman, that this was the normal course of things for some MPs who did ask for payment".

The Judge presented this aspect of the case to the jury in a manner favourable to Mr Hamilton:

"Now support for what Mr Browne put to Mr Whiteman on Mr Hamilton's behalf is, you may think, to be found in the evidence of Mr Blumenthal and Mr Deakin, both of whom of course were called on Mr Al Fayed's behalf."

[57]But he also pointed out that the evidence was two-edged. Mr Blumenthal testified that, the matter having been discussed with others in Mobil, "it was suggested … that .. we make payment by way of a consultancy agreement". In answer to a question from Mr Hamilton's Counsel about the payment, Mr Deakin said:

"I did not think it was corrupt"

. Morland J. commented to the jury:

"It is not for Mr Deakin to decide whether it was corrupt. It is for you to decide whether it is proved it was corrupt, having considered all the evidence."

[58]What the summing-up rightly went on to consider, was the character of Mr Hamilton's, not Mobil's or Mr Whiteman's, role. To this end Morland J. devoted the remainder of it to the accounts which Mr Hamilton had given in later years of his relationship with Mobil. He had told Sir Gordon Downey, the Parliamentary Commissioner for Standards, in 1997:

"I was a consultant on taxation matters to Mobil Oil Plc in 1989, and this interest was duly registered at the time. I asked no parliamentary questions on behalf of the company, nor was I ever asked to do so."

[59]It was, however, not until November 1989 that Mr Hamilton had made an entry in relation to Mobil in the Register of Members' Interests. Asked if his answer ("at the time") was candid, Mr Hamilton said to the jury:

"Well, I do not think I was under any obligation to make false allegations against myself … It was a fee that was payable for 12 months' consultancy services for all sorts of work and advice."

[60]It is apparent that Sir Gordon Downey was misled by Mr Hamilton's answer into overlooking the materiality of the June 1989 amendment. Mr Hamilton agreed that on a strict application of the Rule he should have registered the consultancy earlier; but, as

the Judge put it to the jury:

"Mr Hamilton's case is that, while accepting that to seek a reward for moving an amendment to a Bill would be clearly corrupt, he honestly believed that from May 1989 onwards he had a consultancy with Mobil, its terms to be later formalised, and therefore no question of corruption arose."

[61]However, as the Judge then pointed out to the jury, the half-truth told by Mr Hamilton to Sir Gordon Downey had replicated the account given by him in October 1994 to the President of the Board of Trade, Mr Michael Heseltine, the Chief Whip, Mr Ryder and the Cabinet Secretary, Sir Robin Butler; and again, in 1997, to the Parliamentary Select Committee. "You may think," the Judge said to the jury, "a half-truth is in a sense a half-lie." He went on:

"If you are satisfied that Mr Hamilton was lacking in candour and was telling a half-truth deliberately, you must ask yourselves why."

[62]He spelt out the gamut of possible reasons why the lack of candour might not betoken a consciousness of corruption. "But," he went on, "if you are satisfied that there is no innocent reason for Mr Hamilton's lack of candour and half-truth, that may be regarded by you as evidence supporting the defendant's case that Mr Hamilton was corrupt."

[63]He concluded:

"Remember, the question that you have to answer in relation to the Mobil transaction, I emphasise it again, is: Are you satisfied that the defendant has established on highly convincing evidence that when Mr Hamilton moved the amendment there was no consultancy agreement, and that Mr Hamilton had no honest belief that there was, and asked for payment for moving the amendment, dishonestly cloaking the transaction as a consultancy? … If your answer is Yes to that question, it is so established, corruption is proved, and you may think that the sting of the libel, the defamatory message, is met."

[64]Mr Al Fayed thus found himself at trial with two strings to his bow, the second of them not of his making. Although one strand in the second string, the belated declaration of a consultancy, might have amounted to no more than evidence of a casual approach to Mr Hamilton's parliamentary responsibilities, the other, the soliciting of payment for moving an amendment, was strong because it could be traced back from the request for payment to the consultation in May 1989 when Mr Hamilton, understanding himself to have been "retained" by Mobil, arranged at the suggestion of leading counsel to move an amendment in Mobil's interest. Whatever Mr Whiteman may have meant by the word "retain", Mr Hamilton's Counsel submitted to the jury:

"… it can only mean retain for a fee. You do not retain a professional without a fee."

[65]It is relevant, then, to appreciate that while either or both of the two main defences may have gone home, the strength of the second, which depended not at all upon what one can call the Al Fayed camp, was such that Mr Hamilton's chance of weathering it was slender even if he were to defeat the first. Moreover the adverse impact of the Mobil issue was capable in its turn of corroborating the defence on the cash for questions issue. Even so, it is impossible to dispose of this appeal on the footing that the Mobil evidence by itself would inexorably have sustained the defence. We cannot exclude the possibility that cash for questions played a material role in the verdict for Mr Al Fayed. Mr Boswood is accordingly entitled to found his submissions on this hypothesis. Our approach to the fresh evidence

[66]Mr Hamilton has applied for permission to adduce fresh evidence, as required by both the old and the new Rules. Under the approach in Ladd v. Marshall the test for admitting fresh evidence on appeal and the test for ordering a new trial is precisely the same. This means that the Court has to consider the implications of the fresh evidence in order to decide whether to admit it. The result is that what is, in theory, consideration of an application to adduce fresh evidence coupled with an application for permission to appeal becomes, in effect, the hearing of the appeal based on that evidence.

[67]The fresh evidence in the present case goes not to the substantive issues in the action but to an allegation of misconduct amounting to an abuse of process. We allowed this evidence to be introduced, and evidence to rebut it, on what used to be described as a 'de bene esse' basis. The Latin tag is no longer acceptable nor, at least in a situation such as the present, is the practice which it describes. On reflection, we consider that the more logical course would have been to give permission at the outset for the fresh evidence to be adduced on both sides and we grant, retroactively, the application to adduce that evidence. The fresh evidence

[68]On 13 February 2000, the Mail on Sunday published a front page article, 'Al Fayed "bought libel secrets"'. This alleged that one Benjamin Pell had stolen documents from dustbins outside the offices of Mr Hamilton's legal team; that one Mark Hollingsworth, described as 'an associate of Al Fayed', although a freelance journalist who did work for the Mail on Sunday, had handed material over for £10,000 at a 'clandestine meeting' at Harrods; that the material had never reached Mr Al Fayed's legal team; but that it had given Mr Al Fayed a 'bit of a steer' in respect of what he might be asked in cross examination. Examples given of his 'crude but effective parries of awkward questions' included 'Get on with the subject and don't waste the time of everybody' and '…. you are talking a load of crap.'

[69]A police inquiry was set in motion. Mr Hamilton's solicitors also began to investigate. Following a court hearing on 17 February, they were given copies of the documents which had been acquired by the Mail on Sunday. These consisted of nine items occupying 54 sheets of paper:(1) 'Desmond's shopping list': a detailed list of inquiries which Mr Desmond Browne, QC, leading Counsel for Mr Hamilton, wished to be carried out.

(2) A schedule of unidentified credits into Mr Hamilton's bank and building society accounts.

(3) A skeleton argument on a side issue relating to tax on unsolicited commissions.

(4) A fax letter enclosing the draft witness statement of a Mr Edwards, who had been a security guard at Mr Al Fayed's Park Lane premises at the relevant time and was to give evidence for Mr Hamilton, showing both his home address and his current place of work.

(5) A letter from Mr Hamilton's Solicitors to Desmond Browne QC dated 29 October 1999, relating mainly to financial information about Mr Al Fayed.

(6) A fax from Adrienne Page, QC, to Mr Hamilton's Solicitors dated 22 October 1999 containing a draft response to the objections to the claimant's witness statements.

(7) A fax from junior counsel, Mr Busittil, to the solicitors, with a schedule of potential sources in the media for cross examination.

(8) A fax from Mr Hamilton to the solicitors commenting on transcripts of taped conversations between Mr Al Fayed and Tiny Rowland.

(9) A draft diary of principal events created by Mr Busittil.

[70]Items 2, 3, 6 and 9 had been served upon Mr Al Fayed's lawyers before the trial, as had Mr Edwards' witness statement and the tapes referred to in item 8. In addition, a list of subjects for cross examination of Mr Al Fayed, together with three bundles of supporting documentation had been delivered shortly before the trial.

[71]The allegations contained in the Mail on Sunday article were based on three sources of information:(i) what Mr Pell is said to have told Mr Richard Murray, a non-practising barrister working in media law, together with the documents given by Mr Pell to Mr Murray;

(ii) what Mr Hollingsworth told Mr Chris Andersen, a Mail on Sunday journalist, over the telephone on Saturday, 12 February 2000;

(iii) a clandestine tape recording made by another Mail on Sunday journalist, Mr Daniel Foggo, of a conversation that he had with Mr Pell at the latter's home on 12 February 2000. Mr Murray's Evidence

[72]On 23 February 2000, Mr Murray approached Mr Hamilton's solicitors to inform them about the nature of his involvement in the matter.. He told them that Mr Pell had told him that he had delivered copies of stolen documents to Mr Hollingsworth in five brown envelopes by posting them through his letterbox late one night; that at 9.30 am the next morning Mr Hollingsworth had taken them to a meeting at Harrods attended by Mr Macnamara, head of security, Mr Mayer, director of public affairs, and for some of the time by Mr Al Fayed himself; and that at the end of the meeting Mr Hollingsworth was paid £10,000 in new £50 notes. An unsigned draft of a witness statement by Mr Murray, setting out this information, was served on Mr Al Fayed's lawyers on 29 February 2000.

[73]Mr Murray's draft witness statement was replaced by a signed statement dated 1 March. This made a number of corrections to the draft statement, and added further details to it. Mr Murray described a telephone conversation with Mr Pell on Sunday, 14 November 1999, the day before the trial began, in which Mr Pell had read over what he said was a draft of Desmond Browne's opening speech, and referred also to draft 'questions' or 'topics' for the cross examination of Mr Fayed, and 'Desmond Browne's shopping list.' Mr Pell had disclosed that a journalist hostile to Mr Hamilton had already suggested that he give the material to Mr Al Fayed, but Mr Murray had tried to persuade him not to do so.

[74]Then or in later conversations, Mr Pell had told Mr Murray that he had been collecting documents relating to the case from dustbins outside 5 Raymond Buildings for some time and copying them to a large number of journalists. These included a copy of Mr Edwards' draft witness statement obtained on Sunday 7 November 1999, which he had faxed to several journalists, including the editor of Punch. Later still, Mr Pell had told Mr Murray that on about the 16 November 1999 he had met Mr Hollingsworth, who had asked him to make copies of the documents and post them through his office letter box. Mr Pell had made a pile of copies 3 inches thick, placed them in five large brown envelopes, and gone round to Mr Hollingsworth's office in the early hours, but had been unable to find a letter box and so had given them to Mr Este Fernandez, a security guard, at 100 Piccadilly, a nearby office building, to keep for Mr Hollingsworth, and had later left a message on Mr Hollingsworth's answerphone to this effect. Mr Pell had also told Mr Murray that Mr Hollingsworth had left a message on his, Mr Pell's answerphone at 8.25 the next morning to say that he had collected the documents and was on his way to a meeting. Mr Hollingsworth had telephoned Mr Pell again about 11.00 am to say that he had just had a meeting with Mr Fayed, Mr Macnamara and Mr Mayer and they had promised £20,000 for the documents. He had been given £10,000 then and there but the documents were not exactly what they were looking for and they were keen to know what else Mr Pell had got.

[75]Mr Pell had telephoned Mr Murray again on 25 January 2000 to say that Mr Hollingsworth had arranged a meeting with Mr Al Fayed at 5.30 pm that day to discuss whether any more money would be paid. Mr Pell played over a message from Mr Hollingsworth to that effect. To check whether Mr Pell was telling the truth, Mr Murray had gone to Mr Hollingsworth's office address and followed him from there to Harrods, where he arrived at 5.30 pm exactly. Mr Pell had telephoned Mr Murray the next day to say that Mr Al Fayed had refused to pay any more money.

[76]Thereafter Mr Murray had tried to interest the Mail on Sunday in the story. He had obtained copies of certain documents from Mr Pell and passed them to the newspaper. Mr Pell had told him that he had mislaid other 'particularly sensitive documents', including 'a manuscript document on lined paper in neat handwriting entitled something like "Topics for cross examination" and a draft of Mr Browne's opening speech'. Staff at the Mail on Sunday had been reluctant at first to believe this story. However, they had decided to run the story after they had learned that Mr Murray had reported the matter to Mr Heseltine, the former Deputy Prime Minister, and Mr Hollingsworth had confirmed its essentials in the telephone conversation with Mr Anderson. Mr Anderson's taped telephone conversation with Mr Hollingsworth on 12 February 2000

[77]On the tape, Mr Hollingsworth confirms that Mr Pell passed material to him 'which I did show to Fayed', although he emphasises that 'virtually all the material they already had' on discovery. He confirms that there was a meeting on or about 17 November 1999, with Mr McNamara but not with Mr Mayer. Mr McNamara had paid him £10,000 there and then. Mr Fayed had come in 'later on', but he 'definitely did not …. initiate it'. He was promised another £10,000 if more material could be obtained. None was, but Mr Pell wanted more money. He went back on 25 January 2000 and was given the 'bum's rush'. Throughout he is at pains to stress that the material was 'of no real benefit in terms of inside intelligence'. 'They wanted to know who was funding Hamilton'. The material they had seen 'was kind of interesting and it gave them a bit of a steer .… it wasn't what they were specifically looking for.' The only description given of the material is of 'subject areas' for cross examination. Many of Mr Hollingsworth's answers were elicited by leading questions from Mr Anderson.

[78]Mr Hollingsworth has not provided a witness statement to either party to this appeal. Mr Hamilton gave notice under Rule 33.2(3) of the Civil Procedure Rules of his intention to rely upon the tape as hearsay evidence, and Mr Al Fayed has not sought leave under rule 33.4(1) to cross-examine him. The tape of Mr Foggo's meeting with Mr Pell on 12 February 2000

[79]The tape of the conversation between Mr Foggo and Mr Pell has its entertaining moments, but contains little of interest beyond confirmation of Mr Pell's relationship with Mr Murray. Mr Pell telephoned Mr Murray while Mr Foggo was with him and insisted that without confirmation from Mr Hollingsworth and himself there was no story and he was not going to confirm anything. He complained that the Mail on Sunday kept on wanting more documents from them. The plan was that there would be no story unless Mr Al Fayed could be got to admit it. He expressed concern about the possibility of police investigation. He did, however, complain about not being paid the 'other ten grand'. He expressed a great deal of indignation about the ease with which Barristers' chambers allow their rubbish to be stolen. Evidence in Rebuttal

[80]In September 2000, Mr Al Fayed filed evidence from himself, his legal adviser Stuart Benson, his legal assistant Deborah Fiddy, Ms Bozek, Mrs Bond and Mr Bromfield, the three key witnesses who had given evidence supporting his account of giving 'cash for questions', and others. In his own witness statement Mr Al Fayed described how he had employed Mr Hollingsworth to write his biography, but that this had been taken over by someone else; he had continued to employ Mr Hollingsworth from time to time to conduct investigations for him about other matters, such as his long running battle with Tiny Rowland, the death of his son in Paris and his nationality application. In connection with his dispute with Mr Hamilton, he had seen Mr Hollingsworth on 14 October 1999 and asked him to conduct some background research into Mr Hamilton's activities and associations. The results of this were faxed to Mr McNamara on the afternoon of 17 November 1999; the fax made no reference to any meeting that day or the next. Mr Al Fayed also saw Mr Hollingsworth on 29 November 1999 but could not recall what this was about. He denied any involvement in the receipt of documents taken from outside Counsel's chambers.

[81]Mr Al Fayed appeared before us to be cross-examined on his statement. He maintained that he knew nothing of any theft of privileged documents and had no involvement at all in the alleged receipt of these documents. Mr Boswood made little headway with cross-examination. When questioned on detail Mr Al Fayed replied either 'I cannot remember' or 'It's a possibility'. He did, however, say that Mr McNamara would not have had authority to pay Mr Hollingsworth £10,000 without his express permission.

[82]In other witness statements:(i) Mr Mayer denies being present at any meeting with Mr Hollingsworth where the libel action was discussed:

(ii) Mr Benson denies any knowledge of these documents and any suggestion of coaching the witnesses. He explains how it was that Mr Edwards was traced to his present place of employment through a request for a reference found in the personnel files and was contacted there, not at his home address, on Monday 8 November 1999.

(iii) Ms Bozek, Mrs Bond and Mr Bromfield all deny any knowledge of the stolen documents and any attempts by anyone to coach them in their evidence.

(iv) Two independent witnesses, Professor Nobay and Mr Basham state that they attended a meeting of the 'People's Trust' at 5.30 pm on 25 January 2000 at which both Mr Hollingsworth and Mr Al Fayed were present. These witnesses indicate that at no time were Mr Hollingsworth and Mr Al Fayed alone together.

(v) Mr Estefonte Fernandez states that he was on duty as a security guard at 100 Piccadilly from 7.0.p.m. on 17 November 1999 to 7.0.a.m. on 18 th and that he is certain that Mr Pell did not leave any documents with him. Evidence about the disposal of confidential documents in 5 Raymond Buildings

[83]Counsel for Mr Hamilton filed witness statements dealing with when the draft opening speech and notes for cross examination were written. Mr Browne QC says that he always put documents for shredding in the red bins next to the shredder and never in waste paper bins. Mr Busittil describes himself as very security conscious: he would usually shred documents himself, but documents for shredding could be placed in a red bin next to the shredder; however if that was full he would place documents in a neat pile next to the red bin; he expresses the fear that the cleaners may have put documents place there out with the ordinary rubbish. Later statements from the cleaners however deny this: being experienced in the ways of Counsel they say that they would never throw anything away which was not in the ordinary waste paper baskets. The Mystery Tapes

[84]There were developments shortly before and during this hearing that would not have been out of place in one of John Le Carre's early novels. On 22 November 2000, Mr Hamilton's Solicitors learned from the Crown Prosecution Service that they did not intend to pursue any criminal charges in relation to thefts from the dustbins outside 5 Raymond Buildings. They sought out Mr Murray in the hope that further information could now be obtained from Mr Pell. On 17 November 2000, Mr Wheeler, an assistant Solicitor with the firm, was taken by Mr Murray to a place in Hendon where they found a cassette tape in a fire damaged Ford transit van. This was a tape of duets by Elton John part of which had been recorded over. On Thursday 7 December, in circumstances which are unexplained, Mr Vaughan, a trainee Solicitor with the firm, acting on information from Mr Murray, again went to the burnt out transit van and retrieved three tapes, one of which contained recordings. Finally, on the penultimate day of this hearing, 14 December 2000, we received a witness statement from Mr John McVicar, a freelance journalist who was until last month a columnist with Punch, exhibiting a third tape. This had arrived in an envelope addressed to him at his home address on 29 November 2000 but he did not mention it to Mr Hamilton's solicitor until 13 December 2000.

[85]All three of these tapes appear to contain recordings of messages left on Mr Pell's answering machine, or recordings of one side of telephone conversations with Mr Pell, whose own contributions to the conversation have not been recorded or have been expunged. There are indications that other editing has taken place in that the recorded messages appear to be out of chronological order. Except where the answering machine has itself recorded the date and time (which may itself have been edited) the only indications as to date are information given to the Solicitors by Mr Murray of what he had learned from Mr Pell (as to the first and second tapes) and such internal clues as can be gained from the contents of the conversations.

[86]The first tape contains messages from both November 1999 and January 2000. Many of them are irrelevant, in that they relate to other transactions, including at least two from 'Mark' about 'Elton'. The first message is timed at 11.01 on Thursday 18 November from 'Mark' phoning from a number which has been traced to a phone booth in Curzon Street, asking Mr Pell to pick up the phone or ring him back there quickly. Other than saying that 'everything's fine' it gives no hint of the subject matter. The tape also contains an undated message, timed at '6.30 Thursday' (in the middle of a set of messages from January), saying that his 'meeting with the man himself has been delayed for another week'.

[87]The second tape contains conversations and messages from other dates in November and January. There are messages from David Leigh, another journalist, indicating that he had seen some of the material being peddled by Mr Pell. There is also a message from him, apparently dated 24 November, but referring to a line of attack on Ms Bozek's credit which was in fact made on 30 November.

[88]There is a message allegedly from Mr Hollingsworth dated 24 November, saying that he has a meeting late this afternoon 'with the guy I have been dealing with' and wondering if he had had any more luck. There is another message dated 25 November:

'I will have some fruit and veg…. hoping for a second delivery but there is no pressure . . . you know we have had a hit but whether I can get the whole . . . of the . . . package now may be a problem.'

There is, however, no evidence that Mr Hollingsworth saw Mr Al Fayed or any of his team before the meeting on 29 November 1999. The McVicar Tape

[89]This tape is all of snatches of conversation in January. There is a long series of extracts from a conversation with Mark Hollingsworth which may well have taken place on 26 January 2000. He states that 'it was a frustrating meeting because he had people coming running in and out'. He promises to go back, but says that there is a feeling that the whole business is history. Mr Al Fayed's office diary contains an entry suggesting that Mr Hollingsworth did want to return to see him on 28 January 2000 but was told 'no busy'. There is a message timed at 11.06 pm on (obviously wrongly if this was 1999) Thursday November 17 th , but showing clear signs of splicer's disease, asking him to deliver new material under the gate at his office. There are two messages which are not only very similar to one another but also bear a strong resemblance to one on the first tape.

[90]It is notable that no evidence of any kind has been adduced from Mr Macnamara. The Quality of the Evidence

[91]We doubt whether a Court has often, if ever, been invited to make a finding of misconduct equivalent to fraud on evidence as unsatisfactory as that placed before us. Much of Mr Murray's evidence consists of quadruple hearsay - what Mr Murray has said that Mr Pell told him that Mr Hollingsworth had told Mr Pell. Added to this are tape recordings, which are for the most part of uncertain provenance and heavily edited. It is only in comparison to such evidence that the tape recording of the conversation between Mr Hollingsworth and Mr Andersen carries a degree of credibility. We also attach weight to Mr Murray's statement as to matters within his own knowledge. As far as the three Pell tapes are concerned, we do not think that any weight should be attached to these save to the extent that they clearly dovetail with and corroborate evidence from a less unreliable source. With this introductory comment we turn to the first of the issues of fact that we have posed at paragraph 40 above. Was Mr Al Fayed party to the purchase of privileged documents stolen from the dustbin of 5 Raymond Buildings?

[92]Evidence from all sources combines to drive us to the firm conclusion that Mr Benjamin Pell stole documents from the dustbin outside 5 Raymond Buildings. The 9 documents recovered by Mr Hamilton constitute real evidence that corroborates Mr Pell's hearsay evidence as to this. In John v. Express Newspapers plc

[2000] 3 All ER 257

this Court allowed an appeal by Express Newspapers against an Order that they disclose the source of a draft advice that had probably been discarded as waste from Counsel's chambers. The Court formed the view that this was a one-off infringement of professional legal confidentiality. The evidence in this case suggests to us that this was more probably but one droplet in a particularly free-flowing source of press information. It seems that it was Mr Pell's practice over a considerable period to scour the dustbins outside Counsel's chambers and to attempt to sell the fruits of his labours to the press.

[93]On balance of probability we find that Mr Pell supplied to Mr Hollingsworth some of the documents that he had obtained from the dustbin outside 5 Raymond Buildings and that Mr Hollingsworth handed these to Mr Macnamara. We base this finding on the following evidence. Mr Pell told Mr Murray that this occurred

[94]So far as Mr Murray is concerned we see no reason to doubt his veracity. Mr Beloff sought to make capital out of differences between his draft witness statement and the signed version. We see nothing sinister in these. It was open to Mr Beloff to call Mr Murray in order to cross-examine him. Mr Murray, at least, is a witness who would have been prepared to give oral evidence. Mr Beloff did not do so.

[95]Details of Mr Pell's hearsay evidence are unsatisfactory or puzzling. If Mr Hollingsworth's office had no letter-box it is extraordinary that Mr Hollingsworth should have instructed Mr Pell to deliver documents to him there in the middle of the night. Mr Pell said that he left the documents with a security guard called Este Fernandes at 100 Piccadilly. Enquiries disclosed that such a guard existed. Yet he denied that he had been given any documents by Mr Pell. He was not on duty on the night of 16/17 November but on the following night. On balance we think it more likely that Mr Fernandes had forgotten the incident, or for some reason was reluctant to admit that it occurred, than that Mr Pell had somehow discovered his identity and used this to embellish a false story.

[96]It is credible that Mr Pell might have offered documents to Mr Hollingsworth. Usually Mr Pell peddled his stolen documents to the press, but Mr Al Fayed could well have been thought to be a potential customer for documents relating to his litigation and Mr Hollingsworth may have been known to him as someone who had worked for Mr Al Fayed. Mr Hollingsworth has stated that he handed the documents to Mr Macnamara

[97]Mr Hollingsworth's statement to this effect comes in two forms. First it is in the form of quadruple hearsay via Mr Pell and Mr Murray. We approach details said to have been given by Mr Hollingsworth to Mr Pell of dealings in relation to the documents with the Al Fayed camp with reservation. There are significant inconsistencies between what he is reputed to have told Mr Pell in this regard and evidence from other sources. We cannot see, however, why Mr Hollingsworth should have made up a story about handing over the documents to those within that camp. Nor is it unlikely that he would have done this. He had, after all, been retained by Mr Al Fayed to obtain information that might assist in the Hamilton litigation, though it has not, and could not on the evidence, be suggested that these instructions were directed at information of this kind and from this source.

[98]The more reliable source of information about what Mr Hollingsworth did with the documents is what he himself admitted to Mr Andersen in the taped telephone conversation. Mr Hollingsworth told Mr Andersen that he rang one of Mr Al Fayed's people - he accepted that this was Mr Macnamara - and made an appointment. He then went to a meeting with him at which he handed over the documents. We shall consider a little later precisely what he said about that meeting. Support from the tape recordings

[99]Counsel for Mr Hamilton prepared a schedule of the various tape recordings in an effort to create a coherent chronological story. Counsel for Mr Al Fayed succeeded in demonstrating a number of anomalies and inconsistencies. Some of the tapes do, however, lend a degree of support to the suggestion that Mr Hollingsworth took documents to 'the Al Fayed camp' - probably on the morning of Thursday 18 November. Mr Macnamara's Silence

[100]On Mr Al Fayed's own evidence, Mr Macnamara acted as his right hand man, at least in relation to dealing with the Hamilton litigation. If the allegation that the privileged documents had been handed to Mr Macnamara is a complete fabrication, we can see no reason why Mr Macnamara has not provided evidence to that effect. We think it a legitimate, and indeed a powerful, inference from Mr Macnamara's silence that he is not in a position to rebut that allegation. Were the documents paid for and, if so, was Mr Al Fayed party to this payment?

[101]The evidence relied upon by Mr Hamilton in relation to this controversial area is particularly unsatisfactory. Mr Murray's account of what Mr Pell told him that he had been told by Mr Hollingsworth was that Mr Hollingsworth had had a two hour meeting with Mr Fayed, Mr Macnamara and Mr Mayer, that he had been promised £20,000 for the documents and given £10,000 then and there. If, however, as the evidence suggests, this meeting took place on 18 November, whether in the morning or, as an entry in Mr Macnamara's diary suggests, at 2.30.p.m. on that day, Mr Al Fayed cannot have been present, as he left for Court at about 9.15.a.m. and was in Court all day. Mr Mayer has made a statement denying that he was present at any such meeting. In his telephone conversation with Mr Anderson, Mr Hollingsworth said that Mr Mayer was not present. As far as Mr Al Fayed was concerned, he said that "he came in later on… to sort of… be… he definitely did not even, sort of initiate it because he wasn't…"

[102]Asked by Mr Anderson whether Mr Al Fayed authorised the handing over of the money - whether Mr Macnamara gave it in front of Mr Al Fayed, he replied:

"Um… I can't remember, I think so, yeah."

[103]This is far from satisfactory evidence of Mr Al Fayed's participation in the purchase of the stolen documents.

[104]Our reservations as to the accuracy of any account said to have been given by Mr Hollingsworth to Mr Pell are accentuated by conflicts of evidence as to what occurred when Mr Hollingsworth went to Harrods on 25 January. Mr Pell told Mr Murray that Mr Hollingsworth said that on 25 January Mr Al Fayed refused to pay any more money. There is, however, independent evidence to which we have referred which we are not able to reconcile with a meeting between Mr Al Fayed and Mr Hollingsworth to discuss further payment for the documents. Some of the tape recordings are at least consistent with a scenario in which Mr Al Fayed was too busy to see Mr Hollingsworth on the 25 January.

[105]For all these reasons the evidence has not satisfied us that Mr Al Fayed was present at the meeting where Mr Hollingsworth handed over the documents to Mr Macnamara.

[106]We find, on balance of probability, that Mr Macnamara paid £10,000 for these documents. The evidence of Mr Pell and Mr Hollingsworth is in agreement on this point. It is not a matter on which they could possibly be mistaken and their evidence accords with the inherent probabilities. Mr Al Fayed gave evidence of other payments made to Mr Hollingsworth for other services, which appear to have been on a generous scale. It is entirely credible that he would have received some payment for providing documents from a source who would himself expect to be paid.

[107]Mr Al Fayed, in his written and oral evidence denied any involvement in or knowledge of payments being made for stolen documents. He also stated emphatically that Mr Macnamara had no general authority to make payments on his behalf. Mr Al Fayed was not an impressive witness. Strictures made by Morland J. in relation to this credibility when summing up to the jury, which we have quoted elsewhere in this Judgement, are ones to which we also have had regard. Whether or not Mr Al Fayed had expressly authorised this particular payment to Mr Hollingsworth, we are satisfied that in making that payment Mr Macnamara was acting on behalf of Mr Al Fayed and within the scope of his authority.

[108]On this basis, the first question that we posed in paragraph 40 above falls to be answered in the affirmative. Is there a real danger that the documents purchased by Mr Macnamara gave Mr Al Fayed a procedural advantage at the trial to which his success in the action was attributable?

[109]There are no documents that might have emanated from 5 Raymond Buildings which could have directly assisted Mr Al Fayed to enhance the Mobil limb of his Defence. We have accepted, however, Mr Boswood's submission that we cannot assume that the jury found for Mr Al Fayed on the basis of the Mobil evidence alone, nor that the jury may not have been influenced in the view that they took of the Mobil material by their assessment of the strength of Mr Al Fayed's case on the 'cash for questions' allegations. Thus it is necessary at this point to consider what effect the use of the stolen documents may have had on the jury's view of the cash for questions evidence.

[110]There are two interrelated aspects to this question:(i) what documents did Mr Macanamara receive and

(ii) what use may have been made of them? Mr Boswood submitted that Mr Hamilton was in no position to answer either question and that, in the absence of any material evidence from Mr Al Fayed, we ought to assume against him that he received documents which enabled him to alter the course of the trial in his favour. We do not accept either the premise underlying this approach or the approach itself.

[111]As to the premise, if Mr Hamilton's Counsel had at 5 Raymond Buildings documents which(i) may have been accidentally discarded as waste and

(ii) may have been used by Mr Al Fayed to swing the outcome of the trial in his favour, we would have expected them to be in a position to demonstrate this. As to the approach, we consider the onus rests squarely on Mr Hamilton to demonstrate not merely that Mr Al Fayed, or those for whom he was responsible, were guilty of an abuse of process, but that this abuse has put the verdict in doubt.

[112]We think it likely that copies of the documents which Mr Murray obtained from Mr Pell were included in those which were passed to Mr Macnamara. They were produced to Mr Murray by Mr Pell in order to demonstrate to the Mail on Sunday the truth of the story that privileged documents had been passed to Mr Al Fayed. Mr Pell also told Mr Murray that he had obtained a draft of Mr Browne's opening speech and draft questions or topics for cross-examination of Mr Fayed.

[113]Assuming that all of those documents were handed over to Mr Macnamara; of what use could they have been to the conduct of Mr Al Fayed's defence? In essence the cash for questions part of the action involved a hard swearing match in which Mr Al Fayed, and three important witnesses, Ms Bozek, Mrs Bond and Mr Bromfield gave evidence of the occasional payment to Mr Hamilton of wads of banknotes and Mr Hamilton denied that any such payments were received. If stolen documents were to be of any significant value to Mr Al Fayed, this could only be if they put Mr Al Fayed on advance notice of questions to be asked and thereby enabled him and his witnesses to make a more impressive showing than they would otherwise have done.

[114]So far as Mr Al Fayed is concerned, the rapier of the cross-examiner is likely to become rapidly blunted on the shield of a professed inability to remember any detail of his past actions. No doubt it was for this reason that Mr Hamilton's lawyers took the tactical decision to give him advance notice of the matters that would be put to him in cross-examination, together with three files of relevant documents. We doubt whether Mr Al Fayed gave these much attention, but equally we do not believe that he would have derived any significant benefit, by way of preparation for cross-examination, from sight of any documents that might have found their way into the dustbin of 5 Raymond Buildings, and from there into the hands of Mr Pell. When we suggested as much to Mr Boswood he did not demur.

[115]Mr Boswood's chief line of attack was directed towards the evidence of Ms Bozek, Mrs Bond and Mr Bromfield. So far as they were concerned, Mr Boswood could make no capital out of the documents that were passed to the Mail on Sunday, nor from the other specific documents that Mr Pell told Mr Murray that he had acquired. Most of these were disclosed to Mr Al Fayed in any event and none was likely to be of significant assistance in enabling Ms Bozek, Mrs Bond or Mr Bromfield to prepare for the rigours of cross-examination.

[116]Mr Boswood sought to persuade us that significance was to be attached to the fact that Mr Pell had told Mr Murray that he had obtained a copy of Mr Edwards' witness statement on Sunday 7 November. He submitted that the fact that members of Mr Al Fayed's legal team contacted Mr Edwards on 8 November indicated that a copy of Mr Edward's statement must have been passed by then to the Al Fayed camp. This was not, as we understand it, suggested to have significance in itself. Its suggested significance was as follows. Mr Busuttil provided a witness statement in which he identified the copy of Mr Edwards' statement which was given by Mr Pell to Mr Murray as emanating from him. He further stated that he was working on notes for the cross-examination of Ms Bozek and Mrs Bond on the weekend of 6/7 November, when Mr Pell claims to have acquired the Evans statement. He stated that it was likely that he discarded in the course of the weekend unwanted drafts of cross-examination notes.

[117]On the basis of this evidence, Mr Boswood invited us to conclude that Mr Busuttil's draft notes for the cross-examination of Ms Bozek and Mrs Bond were probably discarded into the same dustbin that received Mr Edwards' statement, stolen by Mr Pell and included in the documents sold to Mr Macnamara. We are not prepared to make any such assumption . Mr Busuttil's evidence does not give rise to the inference that this occurred. Mr Boswood's suggestion is mere speculation.

[118]Mr Boswood has not been able to point to any areas of cross-examination that give rise to an inference that the performance of the witness was enhanced by coaching with the aid of Mr Busuttil's cross-examination notes. He has, however, sought to support Mr Hamilton's case by reference to a passage in Ms Bozek's cross-examination when she was asked about her relationship with a man with whom she had also had a personal relationship. Morland J, after hearing submissions in chambers, gave a ruling designed to secure anonymity for those (other than Ms Bozek) who were to be referred to, and including a direction that the contents of the Order itself were not to be published or reported. It is necessary therefore, and also sufficient, to say simply that Ms Bozek was cross-examined to the effect that her partner was a man of dubious 'corporate reputation' who had promoted an investment company of which Ms Bozek was a director as a front for activities which he himself could not conduct because he was an undischarged bankrupt. Ms Bozek denied that so far as she was concerned the company was a front. The only reason why this has to be mentioned is that among Mr Pell's taped telephone conversations is one which is said to have taken place on 24 November 1999, six days before Ms Bozek's cross-examination, between Mr Pell and a journalist. It is only the latter's words which are recorded. They include the sentence: 'They must have got something out of it. They went on about that she had a boyfriend…' and went on to name him. Mr Boswood has attempted to suggest that this is acceptable evidence that Ms Bozek was forewarned and forearmed for her cross-examination. One has only to read the cross-examination, as we have done, to see that there is no indication of either; and absent this, there is no evidence whatever that such material, even assuming it to have been retrieved by Mr Pell, reached the defendant's team.

[119]We would add that there is no reference to this matter in the draft cross-examination notes exhibited by Mr Busuttil to his witness statement. It was, however, an area that had already been flagged in the cross-examination of Mr Al Fayed.

[120]Ms Bozek, Mrs Bond and Mr Bromfield have all provided witness statements in which they deny that they had any knowledge of stolen documents, or that they were coached in relation to the evidence that they were to give. Mr Boswood suggested that the coaching might have been carried out without disclosing to them the material on which it was based. We regard this suggestion as fanciful. There is simply no evidence which puts the veracity of the evidence given by these witnesses in doubt.

[121]The reality is that, whatever papers may have been sold to Mr Macnamara by Mr Hollingsworth, there is no reason to believe that they will have given any significant procedural advantage to Mr Al Fayed. It is comparatively rare in civil litigation for the element of surprise to prove a factor that is determinant of the outcome, indeed our procedure is designed on the principle that justice will be better achieved if parties are given notice of the case that they will have to meet. There may still be cases where an ambush is a legitimate tactic, but there is nothing to suggest that this is such a case. Mr Hollingsworth told Mr Andersen in his telephone conversation that the documents that he had provided were of no real benefit in terms of inside intelligence. They gave the Al Fayed camp 'a bit of a steer' but it was not what they were specifically looking for. They wanted to find out who was financing Mr Hamilton. We find this evidence credible.

[122]In summary, the evidence does not suggest that the documents purchased by Mr Macnamara, with the authority of Mr Al Fayed, were used by him to obtain a tactical advantage in the litigation, let alone that they may have enabled him to obtain a favourable verdict when otherwise he might not have done so. Mr Hamilton has not made out a case for setting aside the verdict on this ground.

[123]We turn to consider the next question that we posed at paragraph 40. Had the jury been aware of the purchase of he stolen documents, might this have had such an effect on the credibility of Mr Al Fayed and his witnesses that the jury would have rejected his defence?

[124]Mr Hamilton contends that we should set aside the verdict because of the effect that the fresh evidence would have had on the credit of Mr Al Fayed and his witnesses had the jury only been aware of it. Mr Beloff submitted that the fresh evidence could not have been placed before the jury because it would have gone only as to credit. There are indeed difficulties in envisaging how this evidence could have been put before the jury, either in law or in practice. For the purposes of argument, however, we are prepared to assume that the jury had, in one way or another, been informed that the Al Fayed camp had been offered documents stolen from the dustbin of Mr Hamilton's Counsel and had purchased these. What effect might this have had on their approach to the evidence being placed before them?

[125]The Judge gave the jury as strong a warning against giving credence to Mr Fayed's uncorroborated evidence as it is possible to imagine. We do not believe that evidence that he had been party to the purchase of the stolen documents would have done any harm to his credit. He had no credit. Indeed, the very case that Mr Al Fayed was seeking to establish was one that was damaging to his general credit, for it was that he had bribed a politician to behave corruptly. The jury might have thought that the purchase of the dustbin documents was on a par with such behaviour.

[126]So far as the evidence of the other witnesses is concerned, Mr Hamilton faces this difficulty. The Judge directed the jury that it would be very unwise to accept evidence from Mr Al Fayed, even evidence that appeared credible, unless it was confirmed in a material way by independent evidence which they found highly convincing. Having regard to this direction there are two possibilities. The first is that the jury did not find the evidence of Ms Bozek, Mrs Bond and Mr Bromfield to be highly convincing. In that event, the jury must have rejected Mr Al Fayed's case on the cash for questions defence and found for him on the basis of the Mobil defence alone. If so, the fresh evidence would have had no adverse impact on their decision. Alternatively, the jury must have been satisfied of the integrity of the witnesses in question and have found their evidence to have been highly convincing. In that event, we cannot see that evidence that Mr Al Fayed had been party to the purchase of the dustbin documents could have had any effect upon their verdict. Mr Hamilton's attack on the verdict on the grounds of fresh evidence going to credit carries no conviction.

[127]Having regard to the findings that we have made, the fourth question posed at paragraph 40 does not arise.

[128]For these reasons we have concluded that the appeal which Mr Hamilton has sought permission to bring against the verdict in this case would have no reasonable prospect of success and that his application in that regard should be dismissed. It remains to consider his application for permission to appeal against the order for costs that has been made against him.

[129]Should Mr Al Fayed's conduct, as disclosed by the fresh evidence, lead us to reverse or vary the costs order that has been made in his favour? This question falls to be considered in the light of the jury's verdict. The implication of that verdict is that Mr Hamilton, a politician who had behaved corruptly, was seeking to obtain damages from Mr Al Fayed for making a statement, which insofar as it was damaging to Mr Hamilton's reputation, was justified. Had Mr Al Fayed initiated the theft from the dustbin of opposing counsel, we would have been in no doubt that this behaviour should be reflected in the costs order. But he did not. Documents from that dustbin were offered to his camp, and he was party to their purchase. The evidence suggests that the principal reason why Mr Al Fayed may have been interested in these documents was because they might indicate who it was who was funding Mr Hamilton's action. We in no way condone Mr Al Fayed's conduct, which was discreditable. It did not, in fact, impact upon the way that he, let alone his legal representatives, conducted his defence. Having given the matter careful consideration we do not consider that the fresh evidence justifies the grant of permission to appeal for the purpose of attacking the order in relation to the costs of the action that has been made by the trial Judge. Mr Hamilton's application will be dismissed.

Order

(This order does not form part of approved judgment)

Cited in 14 later judgments

and 5 more of the most senior