Charles Elphicke v Times Media Ltd [2024] EWHC 2595 (KB)

“The Assembly condemns the highly prejudicial anti-gender, gender-critical and anti-trans narratives which reduce the struggle for the equality of LGBTI people to what these movements deliberately mis-characterise as “gender ideology” or “LGBTI ideology”

"Such documents having been provided to the opposite parties to the litigation in order to facilitate the smooth and efficient running of the trial and to encourage settlement before trial by providing information as to the content of a witness's evidence, it is an abuse of their function for them to be used for any other purpose ..." and to Blue v Ashley [2017] EWHC 1553 (Comm) at para. 15 per Leggatt J: "

“the Defendant is taking additional steps within its organisation to remind relevant individuals of the application and importance of CPR r.32.12 to ensure that similar issues will not arise again. These additional steps include: (1) the provision of training to Times Media's journalists on the relevant rules in respect of the use of material obtained from litigation; (2) a note of advice to journalists to identify this particular issue of collateral use of witnessstatements; and (3) a reminder to Times Media's journalists on the appropriate use of Twitter.”

"The defendant's third criticism is that the Master was not entitled to decide that the resolution of the Board on 9 October included the email, because there was no evidence about it and it was a disputed issue. I disagree: it was relevant to her decision to disapply the default rule, and the Master was entitled, on the material before her, to conclude that the email was included in the resolution, and so should have been provided. That went to the defendant's conduct. It was a view to which she was entitled to come: for what it is worth, I consider that she was right."

"The Sunday Times is under no obligation to answer the questions you have raised. As you accept at the paragraph (b) at the end of your letter, the Pre-action Protocol does not require the disclosure of the information you request at this stage in the proceedings. Should your client pursue a claim against The Sunday Times then the rules governing disclosure will apply and information will be provided [within] that framework."

"Thank you for your letters. TNL is aware of its obligations as regards document retention."

"A document hold notice was issued by our client's legal department to relevant employees on 24 May 2018 ..."

“At all stages the parties must consider whether the case is capable of resolution by ADR.”

“On the face of it, the complainant bears the very heavy burden of responsibility for having falsely told a national newspaper and caused it to be published to the world at large that she has made a complaint of rape against our client in a signed witness statement to the MPS, and by obvious implication from her use of the word ‘assumed’, that she had both intended and expected the MPS to investigate our client and no doubt caused him to be prosecuted for having raped her.”

"As I told you on the phone, we do not consider that a WP meeting before exchange of witness evidence will be of any real value."

“Also relevant is CPR 44.2 which sets out the considerations the court is to take into account when making an order about costs. CPR 44.2.4 provides that the court will have regard to all the circumstances, including the conduct of all the parties. The context for the court's consideration in all the circumstances under CPR 44.2 is the determination of whether there is good reason to depart from the presumption laid down by CPR 38.6: see Nelson's Yard Management Co Ltd & Ors v Eziefula [2016] EWCA Civ 235 at [15] by Moore-Bick LJ.”

"If the court is going to deprive a party of costs on the grounds of misconduct which has not been causative of a waste of costs, it should be satisfied that the sanction is a proportionate sanction."

“where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs, unless there is good reason not to do so.”

"The 6 point summary from Brookes was adopted and approved by the Court of Appeal in Nelson's Yard Nelson's Yard Management Co Ltd & Ors v Eziefula [2016] EWCA Civ 235 . There, it was reiterated that it is not the function of the court considering costs to determine whether the claim would have succeeded, although the court is permitted to consider whether the unreasonableness of the defendant's conduct provides a good reason to depart from the default rule. The court may take account of matters relating to conduct where it does not have to resolve disputed questions as to the merits of the substantive claim."

‘Where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs, unless there is good reason not to do so.’

“Your client should in no circumstances be subjecting the complainant to the embarrassment and awkwardness at best of having to testify on its behalf.”

“Witness statements have been served. We propose the parties go to mediation on a mutually convenient date.”

“But the avoidance of the costs of a trial is the necessary consequence of any discontinuance and cannot, of itself, justify a departure from the normal rule .... There has to be something more than that to justify that departure.” – and that was so even in instances (as referred to in Nelson’s Yard) where a Claimant had in practical terms achieved all he might have got at trial, let alone (and a fortiori this case) where the Claimant had failed to achieve anything. Further, per Beatson LJ in Nelson’s Yard at para.32: “It is clear that once there is to be no trial, it is not the function of the court considering costs to decide whether or not the claim would have succeeded: see Re Walker Wingsail Systems PLC [2006] 1 WLR 2194, per Chadwick LJ at para. 12, and HHJ Waksman's second principle in Teasdale v HSBC Bank PLC [2010] EWHC 612 (QB), at para 7(2). But it is also clear (see Moore-Bick LJ's sixth principle in [Brookes])) that it is the function of the court to consider whether the unreasonableness of a defendant's conduct provides a good reason for departing from the default rule.”

“One of the main benefits to be gained from the increased work for the parties (and the court) in undertaking the detailed costs management exercise at the outset of the case is the fact that, at its conclusion, there will be a large amount of certainty as to what the likely costs recovery will be. One consequence is that, for the purposes of calculating the interim payment on account of costs, the starting point will almost always be the payee's approved costs budget.”

“There has been a growing and unwelcome tendency by first instance courts and, dare I say it, this court [the Court of Appeal] as well to depart from the starting point set out in rule 44.3 (2) (a) ...” [ie that costs normally follow the event of the outcome of the case] “... too far and too often. Such an approach may strive for perfect justice in the individual case, but at huge additional cost to the parties and at huge costs to other litigants because of the uncertainty which such an approach generates ... numerous first instance hearings in which the only issue is costs and (b) a swarm of appeals to the Court of Appeal about costs, of which this case is an example.”

“... the court is entitled in an appropriate case to say that the misconduct is so egregious that a penalty should be imposed upon the offending party. One can, therefore, deprive a party of costs by way of punitive sanction. Given the judge's findings of dishonesty in this case, that may be appropriate here ...”

“... lies are told in litigation every day up and down the country and quite rightly do not lead to a penalty being imposed in respect of them.”

“It is clear, therefore, from the terms of the rule itself and from the authorities that a claimant who seeks to persuade the court to depart from the normal position must provide cogent reasons for doing so and is unlikely to satisfy that requirement save in unusual circumstances.”