Robin Crispin Odey v The Financial Times Limited [2025] EWHC 2621 (KB)

Case No KB-2024-001562, KB-2024-001194

KB-2024-001198, KB-2024-001164, KB-2024-001151

KB-2023-003397

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

[2025] EWHC 2621 (KB)

MEDIA AND COMMUNICATIONS LIST

Venue Royal Courts of Justice

Date Friday, 25 July 2025

Strand

London, WC2A 2LL

Before

MRS JUSTICE HEATHER WILLIAMS

Between

ROBIN CRISPIN ODEYClaimant

THE FINANCIAL TIMES LIMITEDDefendant

JFMClaimant

MAMClaimant

JAE ANNE MAHERClaimant

MJJClaimant

JASClaimant

ROBIN CRISPIN ODEYDefendant

ODEY ASSET MANAGEMENT LLPDefendant

JUDGMENT

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[1]MRS JUSTICE HEATHER WILLIAMS: There are two sets of proceedings before me. A claim for libel brought by Mr Odey against the publishers of The Financial Times ("FT" and "the Libel Claim"), and five personal injury claims brought against Mr Odey and in one instance, his then hedge fund, Odey Asset Management LLP ("OAM" and "the PI Claims").

[2]There are two applications listed for my determination pursuant to the order made by Steyn J on 3 June 2025. They are, firstly, by application notice dated 13 May 2025, The FT's application for a split trial of liability on the one hand, and quantum and other remedies on the other ("the split trial application") and secondly, by application notice dated 15 May 2025, the PI claimants’ application for a stay of their claims until after the outcome of the liability trial in the libel claim ("the stay application").

[3]I heard submissions in relation to these applications on Friday, 18 July. As submissions took the majority of the court day, I indicated that I would deliver a read out judgment today, 25 July 2025.

THE LIBEL CLAIM

[4]The Libel Claim is brought in respect of four articles published by The FT in June and July 2023, comprised substantively of two articles which were each published in print and on line ("the Articles"). Between them, the Articles reported on the accounts of 19 women who alleged they were subject to sexual assault and/or harassment by Mr Odey in the period between 1985 and 2021. The natural and ordinary meaning of the words used has been agreed, as recorded in Collins Rice J's order of 6 December 2024. The agreed meaning of each of the articles is that:

"Over a number of decades the claimant has repeatedly preyed upon women he comes into contact with, including receptionists and other women at his company, sexually assaulting them, sometimes using physical force or violence to do so, or sexually harassing them."

[5]Mr Odey seeks to recover general and special damages. The latter is limited by him to £79 million and is founded on the proposition that his removal from OAM and its subsequent collapse was as a result of the Articles. The special damages claim comprises loss of Mr Odey's direct and indirect interest in OAM, of an estimated aggregate value of £147 million; or, in the alternative, lost earnings until his intended retirement date, estimated at £144 million, together with the loss of the residual value of his interest in OAM; and, in any event, additional losses incurred on various investments, said to total £7.6 million. The details are set out at paragraphs 32 to 53 of the Amended Particulars of Claim (“APC”).

[6]The libel claim was issued on 29 May 2024, and served on 18 September 2024. The FT served its defence on 14 February 2025. It defends the libel claim on the basis that the articles are substantially true in the agreed meaning, pursuant to section 2 of the Defamation Act, 2013 ("the 2013 Act"). The Defence pleads allegations made by 15 of the women in support of this, as set out at paragraphs 11 to 86 of the Defence. The FT also defends the libel claim on the basis of publication in the public interest, pursuant to section 4 of the 2013 Act. The FT accepts that the articles meet the threshold of serious harm, for the purpose of section 1 of the 2013 Act, but denies Mr Odey's entitlement to general or special damages, or to any other relief, and puts him to proof on his damages claim.

[7]Mr Odey served a Reply on 8 April 2025. His case on truth is that the pleaded allegations of the women are largely false, and where they are not false, they do not assist in proving the truth of the imputation, as set out at paragraphs 5 to 59 of his Reply. In this claim, directions questionnaires and draft directions have been filed, but no Case Management Conference (“CMC”) has yet been listed, or directions made to trial. No disclosure has been given or witness statements exchanged.

THE PI CLAIMS

[8]The PI claims are brought by five women who allege that Mr Odey sexually assaulted them. The claims relate to alleged sexual assaults as follows. In the period 1995 to 1996, JAS; in the year 1998, MAM; in 2004 Ms Maher; in 2013, MJJ; and in 2021 JFM. Anonymity orders and associated reporting restrictions have been imposed in relation to the identities of four of the five claimants. In the case of Ms Maher, the equivalent restrictions have only been imposed in respect of her address.

[9]Letters of claim were sent on behalf of the various claimants during the period July 2023 to January 2024. Claims by JFM and MAM were issued on 18 August 2023. Ms Maher and MJJ applied to be added to the existing claim form in November 2023. By order of 25 April 2024, Master Sullivan directed each claim to be issued on a separate claim form and thereafter individual claim forms were duly issued. Damages are sought for psychiatric injuries, injury to feelings and special damages are claimed for financial losses, including loss of earnings and treatment costs.

[10]Mr Odey and OAM advanced substantive Defences to the PI claims, and in four of the five cases, a limitation Defence. The five claims have been case managed together. Standard disclosure and inspection took place in February and March 2025, witness statements were due to be exchanged by 12 June 2025. However, the claimants have not been ready to exchange statements thus far. The defendant, Mr Odey, has filed his statements with the court on a confidential basis. The parties have permission to instruct psychiatrists, and the experts were due to exchange reports by 25 June 2025. The claimants have been examined by the relevant experts, but exchange of reports has not taken place thus far. The PI claims have not yet been listed for trial.

[11]Pursuant to Master Sullivan's order of 27 November 2024, a CMC was due to be held at 10.30 am on 21 July 2025. However, in light of the inter-relationship with the two applications I was due to rule on, and without objection from the parties, I adjourned the CMC at the conclusion of the hearing before me last Friday.

THE OVERLAP

[12]It is common ground that there is an overlap between the libel claim and the PI claims. This is because firstly, all five of the claimants in the PI claims are witnesses for The FT in relation to its defence of truth in the libel claim. The pleaded PI claims are based on the same facts as the allegations relied upon in The FT's Defence of the libel claim. The accounts of the PI claimants are pleaded in The FT's Defence as follows: at paragraphs 24 to 27 in relation to JAS (who is referred to by the pseudonym "Charlotte" in the Defence of The FT); at paragraphs 28 to 30, MAM (there referred to as "Dawn"); paragraphs 34 to 37, Ms Maher; paragraphs 50 to 63, MJJ (referred to there as "Ivy"); and paragraphs 81 to 86 regarding the account of JFM (there referred to as "Nicole"). In both his Defence to the PI claim and in his Reply to the libel claim, Mr Odey says that these accounts contain false allegations.

[13]Secondly, there is also the possibility that, if their evidence is admissible (which is not something which has yet been applied for or determined) some or all of the additional ten women who are witnesses for The FT in the libel claim may also be witnesses for the claimants in the PI claims.

[14]Accordingly, as matters stand, it is likely that at least the five PI claimants will give evidence which is relevant to both sets of proceedings about the same events, as will Mr Odey, and this may also be the case in relation to some of the other witnesses relied upon by The FT.

THE EVIDENCE BEFORE ME

[15]The following is before the court. Firstly, two statements made by Alex Wilson, partner at Reynolds Porter Chamberlain, in support of The FT's position, "Wilson 2" dated 13 May 2025 and "Wilson 3" dated 20 June 2025. Secondly, two statements made by Jill Greenfield, partner at Fieldfisher, in support of the PI claimants' position, dated 14 May and 20 June 2025. Thirdly, one statement made by Harry Stewart Moore, partner at Gardner Leader LLP, in support of Mr Odey's position, dated 13 June 2025.

[16]There is also a statement made by Mr Odey himself dated 8 July 2025. Although this was filed and served after the deadline imposed in Steyn J's directions, I give permission for it to be admitted. It is relied upon primarily to respond to matters raised in Wilson 3, rather than to adduce evidence which should have been anticipated at an earlier stage. The FT did not object to this course, and I do not consider that any prejudice is occasioned by the admission of this evidence.

[17]It is unnecessary for me to attempt to summarise the contents of each of the witness statements, or the extensive party and party correspondence, much of which is, in turn, summarised in those statements. I have read all of the statements, and I have taken their contents into account.

MATTERS RAISED AT THE OUTSET OF THE HEARING

[18]Upon considering the documentation and Skeleton Arguments, I noted that Mr Odey indicated he did not agree to be bound by findings made in the Libel Claim if that was heard first. Furthermore, The FT had indicated that it did not agree to be bound by findings made in the PI Claim if that went first. Accordingly, it appeared to me that whether I granted or refused the applications in the terms in which they were made, there was a real likelihood of the King's Bench Division hearing two lengthy trials, raising the same disputed factual matters. On the face of it, this struck me as highly undesirable, for reasons I will come on to.

[19]With this in mind, I raised with counsel at the start of the hearing, the prospect of my directing that there be one trial at least on the liability issues, or certain liability issues. I will refer to this as “the Joint Trial Proposal”. I raised this at the outset, so that counsel would have an opportunity to consider this and address me on it. After raising it, I gave counsel some time to consider it, before I heard their oral submissions. I did emphasise that if any of the parties were opposed to a joint trial, it was incumbent upon them, consistent with their duty to assist the court and further the overriding objective, to come up with alternative proposals which would avoid the undesirable scenario of there being two lengthy trials concerning the same factual allegations.

[20]I also clarified with Mr Odey's representatives, that he was not seeking a stay of the Libel Claim, pending resolution of the PI claims. This had been raised at one stage in the party and party correspondence, but no formal application had been made to this effect, and his representatives confirmed that he did not seek that outcome. Mr Millar KC confirmed that The FT sought a split trial, whether or not I granted the stay application.

THE PARTIES' POSITION IN SUMMARY

[21]In brief summary, the parties' respective position are as follows. The FT seeks a split trial of liability on the one hand and damages and other remedies on the other. It supports the PI claimants’ application for a stay of the PI claims until after the liability trial has taken place in the Libel Claim. It contends that this is the best way of avoiding duplication of proceedings and unnecessary costs. The FT provided a draft order, indicating the split that it sought was as follows. “1. There would be a first trial to determine the following issues:-(i) Whether the statements complained of or any of them are substantially true in the agreed meaning pursuant to section 2 of the Defamation Act, 2013.

(ii) Whether the statements complained of or any of them were or formed part of a statement on a matter of public interest, which the defendant reasonably believed that it was in the public interest, pursuant to section 4(1) of the Defamation Act, 2013, to publish, and continue to publish. 2. That there be a second trial, in the event that it was necessary of the following issues: (i) What award of general damages, if any, should be made to the claimant. (ii) What award of special damages, if any, should be awarded to the claimant.

(iii) Any issues concerning interest on the above.

(iv) What other remedies, if any, should be awarded to the claimant in terms of non-pecuniary relief.”

[22]In the draft order, The FT set out a series of directions in respect of the first trial, including for disclosure to take place within 12 weeks, inspection a week after, and then exchange of witness statements 12 weeks after that. Paragraph 6 of the draft order envisages a trial window of 12 January to 1 April 2026 for the first trial, although this was modified in written and oral submissions, to suggest a trial window of 5 May to 31 July 2026.

[23]The FT's position is that this is the swiftest means by which the disputed allegations can come to trial and the women give their accounts in evidence. The draft order envisages that if a second trial is necessary after the first trial, there will be a further CMC at that stage, to give directions for the second trial. Mr Millar indicated that whilst a preference was for the Libel Claim to be tried first on liability with the PI claim stayed, his client was "very interested" in the single trial proposal, and considered that this was workable.

[24]In pre-hearing correspondence and in the Skeleton Argument of Ms Gumbel KC, the PI claimants supported The FT's split trial application, and sought an order that their cases be stayed, pending the outcome of the liability trial in the Libel Claim . The PI claimants agreed with The FT's reasoning, and also submitted it would be unfair and oppressive for their PI claims to be tried first. The PI claimants have indicated that if the liability trial in the Libel Claim is heard before the trial in the PI Claim, they agree to be bound by the findings made in those proceedings, in respect of the allegations they make regarding Mr Odey's conduct.

[25]After hearing my proposal at the outset of the hearing, Ms Gumbel indicated that a single joint trial would be her client's preferred option, as it was now clear that Mr Odey would not agree to be bound by the findings of fact in the first libel trial, and that a joint trial was the only means by which the PI claimants could be confident that they would only have to give their evidence of the disputed events on one occasion.

[26]Mr Odey opposes both applications. He disputes that a split trial is likely to enable the Libel Claim to proceed more quickly or to save costs. He says the PI Claims should be heard first, as they are procedurally more advanced, that the PI claimants would need to give evidence on a wider range of matters in those proceedings, and that there will be a greater opportunity there for Mr Odey to test their accounts, as fairness requires.

[27]Whilst not their preferred options, for reasons they explained, neither Mr Kent KC nor Mr Speker KC suggested that a single joint trial would be impossible. As I will come onto when I refer to their submissions in more detail, they did not agree with the views expressed by The FT and the PI claimants as to the appropriate scope of the joint trial, if I were to direct one.

THE LEGAL FRAMEWORK

[28]A decision whether to order a stay of proceedings and a decision whether to direct a split trial are, quintessentially, case management decisions. These are decisions to be made with regard to the considerations identified in the overriding objective at CPR 1.1(2). Pursuant to CPR 1.3, the parties are required to help the court to further the overriding objective.

Stay of proceedings

[29]The court has an inherent jurisdiction recognised by section 49(3) of the Senior Courts Act, 1981, and restated by CPR 3.1(2)(g), to stay proceedings before it.

[30]As Warby J (as he then was) observed in Mitchell v News Group Newspapers Ltd

[2014] EWHC 2615 (QB)

at paragraph 6:

"6. In general terms, it is clearly desirable to avoid the same or similar issues being tried in two or more different actions. The drawbacks are obvious. Trying the same issue twice is inherently wasteful. It involves duplication of time, effort and cost. There is a risk of inconsistent or apparently inconsistent outcomes. Difficulties can and often do arise, however, in finding a way to manage two cases so that issues common to both of them are tried together, fairly and conveniently. Often, the actions will be proceeding at different speeds, so that tying them to one another leads to the slowing down of the more advanced action. That is not the position here, where the actions are at closely similar stages of preparation for trial. Another difficulty that can arise is that the common issues may form only a small part of the overall picture in the actions."

[31]Where there are concurrent proceedings, there is a need for the court to consider the case management of the overlapping sets of proceedings. In Kumar Limbu & Others v Dyson Technology Limited & Others

[2025] ICR 560

, at paragraph 42, Popplewell LJ made clear that in a situation where there are overlapping sets of proceedings in the King's Bench Division of the High Court, the court should:

"…take steps to coordinate case management in the two cases with a view to minimising the risk of factual issues being tried twice with different evidence or argument so as to duplicate court time to the detriment of other court users, and give rise to a risk of conflicting decisions."

[32]At paragraph 77 in the same case Warby LJ said, "Concurrent actions involving overlapping issues and parties are a common feature of the litigation landscape. The English court will not take a blinkered approach to the case management issues that inevitably arise. It will strive to avoid or minimise duplication of effort and cost and, in particular, any risk of inconsistent outcomes or findings. That is no less true where one of the actions is for defamation. These are often accompanied by other, related actions. Various case management techniques have been deployed over the years, including an interim stay of proceedings, orders for sequential trials, and transfer from one Division to another. The Civil Procedure Rules laid new emphasis on the court's case management role. Its ability to perform that role flexibly in defamation cases was enhanced in 2014 when Parliament abolished the presumption that these would be tried by jury. Even before that a concurrent trial by judge alone of common factual issues in two separate libel claims was directed and successfully conducted: see Mitchell v News Group Newspapers Ltd, Rowland v Mitchell

[2014] EWHC 2615 (QB)

and

[2014] EWHC 4014

and 4015 (QB). The judge's assessment that it was unlikely these claims would 'be case managed together, or even with a real eye on one another' was plainly wrong. The strong probability is that the court's approach would have been carefully co-ordinated."

[33]Whilst each case will, of course, turn on its own facts and circumstances, some of the relevant features for the court to consider can be gleaned from earlier decisions in the libel field.

[34]In Fallon v MGN Ltd

[2005] EWHC 1572 (QB)

, Eady J refused to grant a stay of a libel claim pending potential criminal proceedings. He observed at paragraph 14 that the court had a wide discretion to stay proceedings according to the particular circumstances of the case. At paragraph 18 he said that there was:

".no easy rule of thumb to assist the court to decide who should go first... It is a matter of discretion, and the court must have regard to the particular circumstances and facts, and likely timetable of the individual case."

[35]In the same paragraph, Eady J observed it was desirable for the court to have the fullest information possible before making a decision, a point he reinforced when refusing to grant a stay in that case: see paragraphs 23 and 25. At paragraph 16 he noted that, "The courts have recognised that claims to protect reputation should be pursued with vigour" and at paragraph 17 he said, "All things being equal, a libel action should be disposed of as speedily as circumstances permit." At paragraph 19 he noted that the extent of the overlap between the issues in the respective proceedings would be a significant factor.

[36]In Wakefield v Channel Four Television Corporation & Ano.

[2005] EWHC 2410 (QB)

, Eady J declined to grant a stay of libel proceedings, pending disciplinary action against the claimant by the General Medical Council. Factors he identified as relevant included: 1. The burden lies on the applicant seeking a stay to demonstrate through cogent evidence, that there are sound reasons for a stay in the circumstances of the particular case. (Paragraph 11) 2. The litigants’ rights, including the defendant's right, pursuant to

Article 6 of the European Convention on Human Rights

to have the issues determined by a court of competent jurisdiction within a reasonable time. (Paragraphs 5, 12 and 29) 3. Whether the parallel proceedings would be determinative of the issues in the litigation to be stayed, or at least a significant proportion of them. (Paragraph 13) 4. A delay in the order of three years since the date of publication would be undesirable:

"26. This is beyond what is normally regarded as acceptable in the modem climate for the span of a libel action between publication and trial - even in a complicated case."

In this regard, Eady J also emphasised Parliament's decision to impose a one-year limitation period. 5. "29. There would surely be a considerable 'chilling effect' impinging upon a journalist's rights under

Article 10 of the European Convention

if, when he is sued for defamation…. he is to be frustrated in putting forward his defence for any significant period of time."

[37]The applicable considerations where one of the proceedings is a defamation claim, are also summarised by the authors of Gatley on Libel and Slander 13th Edition, at paragraph 32-044. The summary reflects the points I have already identified. The authors there continue as follow:

"Much will depend on which proceedings were started first, how far the defamation action has progressed, whether the overlapping issues are more suitable for determination in the defamation or in the parallel proceedings, and the extent to which, if at all, the parallel proceedings will assist in the determination of issues in the defamation proceedings."

Split Trials

[38]CPR 3.1(2)(j) and (k), give the court the power to direct the separate trial of any issue, and to decide the order in which the issues are to be tried.

[39]The following factors were identified by Hilliard J in Electrical Waste Recycling Group Ltd & Anor v Philips Electronics UK Ltd & Ors

[2012] EWHC 38 (Ch)

at paragraph 5: 1. Whether the prospective advantage of saving the costs of an investigation of quantum if liability is not established, outweighs the likelihood of increased aggregate costs if liability is established and a further trial is necessary. 2. What are likely to be the advantages and disadvantages in terms of trial preparation and management. 3. Whether a split trial will impose unnecessary inconvenience and strain on witnesses who may be required in both trials. 4. Whether a single trial to deal with both liability and quantum will lead to excessive complexity and diffusion of issues, or place an undue burden on the Judge hearing the case. 5. Whether a split may cause particular prejudice to one or other of the parties (for example by delaying any ultimate award of compensation or damages). 6. Whether there are difficulties of defining an appropriate split or whether a clean split is possible. 7. What weight is to be given to the risk of duplication, delay and the disadvantage of a bifurcated appellate process. 8. Generally, what is perceived to offer the best course to ensure that the whole matter is adjudicated as fairly, quickly and efficiently as possible.

[40]These factors have been applied in the libel context amongst others, for example, by Master Fonteine in Gubarev v Orbis Business Intelligence Ltd

[2019] EWHC 162 (QB)

[41]In a non-defamation context, Peter MacDonald Eggers KC, sitting as a Deputy Judge of the High Court observed in Jinxin Inc v Aser Media Pte Ltd and others

[2022] EWHC 2431 (Comm)

, that a decision to split what would otherwise be a single trial into more than one trial, is a step out of the norm and, accordingly, "There must be a real and substantial advantage if a split trial were ordered to take place" (para 23). At paragraph 26 he said:

"26. Unless a split trial can be justified as a means of resolving the disputed issues in an action in accordance with the overriding objective, with clear benefits over and above those of a single trial, the peril exists that a split trial will add considerably to the parties' costs burden and delay the conclusion of the action."

[42]In Fallet Daimler AG v Walleniusrederierna Aktiebolag

[2020] EWHC 525 (Comm)

at paragraph 61, Bryan J warned of the additional delays in costs caused by bifurcated appeals, and the risk that the same judge will not be available for the second trial, adding to the amount of judicial preparation time involved.

[43]In Guy Carpenter and Company Ltd v Howden Group Holdings Ltd

[2023] EWHC 1114 (KB)

, David Lock KC, sitting as a Deputy Judge of the High Court, ordered a split trial of liability and injunctive relief (on the one hand) and quantum (on the other) in a claim for unlawful means conspiracy. The Judge noted at paragraph 26 in respect of Jinxin:

"Those observations were made in the context of applications for an initial trial on a series of discrete issues as opposed to a trial where, in substance, liability and injunctive relief was to be tried first and quantum tried at a later date. There are inherent dangers in having a trial on discrete issues and there have been cases where such trials have led to substantial later problems within litigation. In contrast, split trials between liability and quantum are more common and give rise to those problems on fewer occasions."

[44]In Boyle v Govia Thameslink Railway Limited & Others

[2022] CAT 46

, the Competition Appeal Tribunal recognised that split trials between liability and quantum can lead to significant cost savings in appropriate cases saying:

"5. It is common for case management directions to hive off and separate questions of liability and quantum. Causation often floats like an orphan child between the liability and the quantum phases, but in this case all of the parties are agreed that the orphan ought to be adopted by the quantum parent rather than the liability parent, and we agree. 6. We also agree that the split, the hiving off of quantum so defined, should take place. The reasons why quantum is often hived off are because, as is self-evident, if the liability issues go the way the Class Representative does not want, in other words if the case is lost on liability, no work need be done on quantum and those costs are saved. That is why it is often done, and in this case we are satisfied that the costs of dealing with the quantum stage would not be minimal, they would be considerable; and it is therefore well worth effecting the split."

[45]The Competition Appeal Tribunal went on to decide there should be a split trial, and the quantum trial should include the questions of causation.

[46]The agreed bundle of authorities before me includes a number of defamation cases, where quantum or special damages were split off in the main trial, to be tried later if the claimant succeeded. It also includes cases where an application for a split trial was refused. The examples I was provided with include: Elite Model Management Corporation v BBC unrep. 14 March 2021, Collins Stewart Limited v Financial Times Limited [2005] EMLR 5, Gubarev (which I have already referred to) and Clarke v Guardian

[2025] EWHC 142 (KB)

. I have read each of these decisions, but, largely, they are simply illustrations of the many fact-sensitive considerations that may arise and thus, I do not consider that it is useful for me to refer to the particular circumstances of each case in detail, or to seek to draw analogies or distinctions between those cases and the present circumstances. I do, however, note Eady J's observation at page 19 in Elite Model Management that, "it will generally be necessary for a fair assessment of damages that the tribunal of fact should be the same as that which determined liability."

[47]Mr Speker sought to draw support from a passage in the joint judgment of Chief Justice Brennan and McHugh J in the High Court of Australia case, Chakravarti v Advertiser Newspapers Limited [1998] HCA 37. At paragraph 177 they observed that:

"The assessment of the probabilities in a matter of this kind would ordinarily be left to the trial judge with the advantages usually ascribed to that position where the drawing of inferences is concerned."

[48]However, this was said in the context where the court was finding that the first appeal court (the Full Court of the Supreme Court of South Australia), had erred in overturning certain findings made by the judge who had tried the defamation case. Accordingly, whilst they were recognising the benefits that a trial judge had enjoyed when it comes to assessing the evidence (in that instance, on causation), they were not addressing the merits or otherwise of split trials, still less laying down a general principle that, "where special damages are alleged to arise from a defamatory publication, the assessment of causation is a matter ordinarily left to the trial judge determining liability", as Mr Speker contended in his Skeleton Argument.

Limitation

[49]The usual practice in cases involving alleged sexual abuse where section 33 of the Limitation Act 1980 is relied upon, is for the issues of disapplication of the limitation period, liability and causation to be tried together, in order to avoid the claimant having to give evidence twice, if the action were to be allowed to proceed outside the limitation period, per McCombe LJ at paragraph 51 in London Borough of Haringey v FZO

[2020] EWCA Civ 180

[50]In A v Hoare

[2008] 1 AC 844

at paragraph 49, Lord Hoffman recognised that in considering the reason for the delay (one of the section 33 factors), the judge was required to give due weigh to evidence that the claimant was, for practical purposes, disabled from commencing proceedings by the psychological injuries he had suffered. THE PARTIES’ SUBMISSIONS The FT

THE PARTIES’ SUBMISSIONS

[51]Mr Millar emphasised that the split trial application was made with a view to securing the earliest possible trial date at which all 15 women would give evidence in relation to the sexual assault and sexual harassment allegations. In addition, The FT wanted the earliest possible opportunity to vindicate the truth of its journalism.

[52]Like all counsel, he disavowed the suggestion that tactical considerations have played any part in his client's position.

[53]Mr Millar estimated that a trial of liability in the Libel Claim would take 18 days, plus two days pre-reading. He noted that trials of 10 - 20 days in media and communication cases are currently being listed between 5 May and 31 July of next year. He said that this would be before the PI claims could be listed for trial, as cases other than media and communications trials of between 5 days - 4 weeks are currently being listed between 1 October and 18 December 2026 (according to the information made available by the King's Bench Division regarding hearings and trial dates). He said the timetable for disclosure and exchange of witness statements in the draft order was a realistic one which The FT was committed to adhering to.

[54]Mr Millar also suggested that a delay in the Libel Claim being tried may have the consequence that some of the ten women who are not the PI claimants, could decide they no longer wish to be involved.

[55]Mr Millar submitted that a split trial between liability and remedy in the Libel Claim was eminently possible, given that serious harm is not in issue, and that the first trial would address the truth defence and the public interest defence. The trial judge, he said, would already have complex issues to deal with at this liability stage, and a split between liability and remedies was the cleanest way of implementing a split. This approach would lead to a substantial savings of cost and a quicker trial date, particularly as the quantification of special damages in this case, if Mr Odey succeeded on liability, would be a far from straightforward exercise. If a split trial was ordered, there would be no need to give disclosure of documents that were purely related to quantum at this stage, and this would be a significant saving of time and costs as disclosure in that area is likely to be extensive. He suggested there were also complex questions of causation, including as a result of the Financial Conduct Authority's decision to ban Mr Odey from the UK financial services industry for a lack of integrity, a decision which he is challenging in the Upper Tribunal. Furthermore, said Mr Millar, the cost of expert evidence required to deal with the special damages claim is likely to be in the region of £500,000.

[56]In relation to the specifics of the special damages claim, Mr Millar said there would be a need for complex expert evidence regarding the value of Mr Odey's interest in the hedge fund, OAM, at the time of his removal. In relation to the alternative loss of earnings claim, the scale of his likely future earnings (absent publication of the Articles) would need to be evidenced and assessed, and issues could also arise around his likely retirement date, and/or in relation to mitigation of loss. It was essentially, he said, a loss of a chance claim that would need to be assessed by expert evidence. Expert evidence would also be required in respect of the third limb of the financial claim, as to the difference between Mr Odey's investments absent the matters complained of and their actual value.

[57]Mr Millar considered that the special damages aspect would add approximately a week to the length of the trial. He did not accept Mr Speker's contention that causation should be determined at the same time as liability. Whilst Mr Speker indicated a wish to question The FT's journalist who had worked on the Articles about their impact on Mr Odey's business and career, Mr Millar noted that what the journalist had said about this in their subsequent reporting was a matter of record, and there was little they would be able to add to that.

[58]Although The FT's preference was for the split I have indicated, Mr Millar said his principle concern was to avoid the special damages claim being litigated to trial at the same time as the liability issues. Mr Millar also disputed that there would be any significant disadvantage in holding split trials, even if the same judge was not available for the second trial, because the judge hearing the second trial would have the benefit of the judge's reasoned judgment from the first trial and, if necessary, transcripts of evidence from the first trial. This would also enable Mr Odey to rely upon the conduct of the first trial in support of his claim for damages, should he wish to do so.

[59]Mr Millar said that each of the eight considerations identified in the Electrical WaterRecycling case pointed in favour of the proposed split trial.

[60]Mr Millar supported the PI claimants’ stay application, and he rejected a suggestion that it was unfair for the libel trial on liability to go first; the PI claimants could be cross-examined at that stage about matters which were said to go to their credibility, including delay in bringing their PI claims.

[61]Although he had initially indicated that The FT's proposal would avoid duplication of evidence, Mr Millar accepted that this would not be the case if The FT were successful in the Libel Claim, given Mr Odey had now made it clear he would not agree to such findings binding him in the PI claim; albeit Mr Millar suggested that even in this scenario, there would likely be some narrowing of the issues once the various parties took stock after the first libel trial.

[62]Mr Millar indicated that The FT were "very interested" in the Joint Trial Proposal, and he thought that whilst it would require careful thought, it could work. He suggested the joint trial should only encompass the truth defence, as this was where the overlap lay and a trial focussed on this aspect could be heard more quickly. However, he said The FT were content for it to include the section 4 defence as well and, as he put it, "possibly limitation".

[63]As regards Mr Kent's concerns about cross-admissibility of the alleged victims' accounts, he said this was not something I could address at this stage; it would be for the trial judge to assess and determine.

The PI claimants

[64]Ms Gumbel indicated that her central concern was to avoid the PI claimants having to give evidence on more than one occasion about the events concerning the alleged sexual assaults. She submitted it would be very distressing, unfair and oppressive for the PI claimants to have to give evidence twice about these events. Her Skeleton Argument was prepared on the basis that if a trial on liability in the Libel Claim went first, it would be unnecessary for the claimants to also give evidence about the events themselves and the PI claim (as opposed to giving evidence in respect of limitation, causation and quantum), as the findings made in the libel trial would be determinative of those matters. She emphasised her clients were willing to accept the findings made in a trial of liability in the Libel Claim, so that if the accounts of the five PI claimants were not accepted by the court at that stage, they would not continue with the PI litigation. She said if the PI claims were tried first, as The FT is not a party to those proceedings, the findings would not bind a court hearing a subsequent libel trial, and not only the five PI claimants, but potentially all 15 women would have to give their evidence twice. That is if the other 10 complainants were also permitted to give similar fact evidence in the trial of the PI claims.

[65]However, Ms Gumbel accepted that it was open to Mr Odey to indicate, as he had now done, that for the purposes of the PI claims, he did not agree to be bound by findings made in a liability trial if the Libel Claim was heard first.

[66]Ms Gumbel said that in these circumstances, her clients preferred the Joint Trial Proposal, as this was the only way of ensuring they only had to give their accounts of the disputed sexual assaults on one occasion. In addition, she said this was the most effective way of saving time and costs. Like Mr Millar, she proposed that the joint trial should address the section 2 truth defence, and not the section 4 public interest defence, as this would enable the trial to be heard as soon as possible. She considered a joint trial was entirely possible, and could be managed to ensure fairness to all parties involved. She accepted limitation should be heard at the same time, but considered that quantum should be the subject of a separate hearing at a later stage (if it arose). She considered the quantum hearing would only last two to three days.

[67]Ms Gumbel did not abandon the stay application, but indicated this was now her second preference. She did not accept that granting of the stay would cause unfairness to Mr Odey: the judge at the libel liability trial and a judge at any subsequent trial of the PI claims would be astute to ensure that fairness was achieved. She agreed with Mr Millar as to the broad scope of questioning on the credibility of the women's accounts that would likely be admitted in a libel liability trial if that went first.

[68]Ms Gumbel did not accept Mr Kent's proposition that section 33 limitation issues should necessarily be dealt with at the same time as the court made findings as to the material events. However, she was content for limitation to be included within the proposed trial, as I have indicated.

[69]Ms Gumbel suggested it had been reasonable to delay providing the claimants' witness statements in the PI claims, until the outcome of this hearing was known. Firstly, because the cost of finalising the witness evidence could prove unnecessary if the PI claims were stayed; and secondly, because the decisions made on the two applications could affect whether the non-claimant women would be willing to provide statements in support of the PI claims.

Mr Odey

[70]Mr Kent KC resisted the application for a stay on the basis that the PI claims should be brought onto trial first. He pointed out that in four of the five cases the allegations related to events which occurred many years ago, and well outside the primary limitation periods. Delay would have an impact on the cogency of the evidence and this will impact on all aspects of the PI claimants' evidence, not just upon whether they were sexually assaulted by Mr Odey. He said they would need to be asked about why they had not commenced the claims earlier, as this was relevant to their credibility as well as to limitation, and they would need to be questioned about the alleged impact of the events upon them, as this was also relevant to their credibility, as well as to the assessment of their damages claims for psychiatric injuries and loss of earnings.

[71]Accordingly, he did not accept the issues of limitation, causation and quantum could be disentangled from the facts of the alleged assaults for the purposes of trial.

[72]Mr Kent also suggested there was a lack of relevant information available to the court at this stage. As the PI claimants have not yet served their witness evidence in the PI Claims, it is not known whether and to what extent they do seek to rely by way of similar fact evidence upon the accounts of the other ten women whom The FT plans to call as witnesses in support of its truth defence.

[73]Mr Kent said that in the Libel Claim, the court would be considering a more wide-ranging set of allegations and hearing evidence directed to the question of whether the agreed meaning is "substantially true". The agreed meaning included "sexually harassing" women as an alternative to sexually assaulting them. Accordingly, resolution of the truth defence would not necessarily involve the court making any specific findings on the factual allegations made by the PI claimants.

[74]Furthermore, much of the evidence relied upon by The FT in its truth defence would or may be inadmissible in the trial of the PI claims, including the evidence of the other ten women who are not PI claimants. In these circumstances, it would be unfair to Mr Odey if the findings on the truth defence in the Libel Claim were treated as dispositive of the issues in the PI claims.

[75]As I have already flagged, Mr Kent confirmed that Mr Odey does not agree to be bound by the findings made in the Libel Claim (if that were tried first) for the purposes of the PI Claims. He pointed out that as the parties were not the same, issue estoppel would not apply. He said that the rule against collateral challenge identified by the House of Lords in Hunter v The Chief Constable of West Midlands Police

[1982] 1 AC 529

, would not have any application, as that only applied to a claimant bringing a claim that involved mounting a collateral attack upon a final decision made by another court of competent jurisdiction in previous proceedings, in which the contended claimant had a full opportunity of contesting that earlier decision. However, Mr Kent indicated he accepted that in the reverse position, if the PI claims were tried first and Mr Odey lost, then the collateral challenge principle would prevent him as the claimant from relitigating those issues in the libel claim.

[76]Mr Kent contended the PI claims were well advanced. Insofar as they were not yet ready to be listed for trial, this was due to the PI claimants' unreasonable failure to comply with the deadline for service of witness statements. Thus, it was not something they could now rely on to their advantage. They were only likely to be allowed a short extension of time for them to exchange witness evidence if those claims were not stayed.

[77]Mr Kent said that if the joint trial option was preferred by the court, "there are ways of doing it, but it is not as simple as others have suggested." He argued that now is not the right time to determine this question and that it was something that could be revisited once disclosure had been completed and witness statements and expert evidence exchanged in both sets of proceedings. In addition, he maintained his concern about cross-admissibility, suggesting that a single joint trial would require the trial judge to undertake "mind-bending" feats to ensure that they did not take into account inadmissible evidence in the form of the accounts of the other women, when deciding whether a particular claimant's allegations were made out. If the section 4 defence were included in the joint trial, this would result in the admission of a great deal more material that would be inadmissible in the PI trial.

[78]Mr Kent said that if there were to be a single joint trial, then in terms of the PI aspect, it should include issues of limitation, causation and general and special damages, to ensure the credibility of the women's accounts were fully explored and tested.

[79]Mr Speker addressed me on Mr Odey's objection to the split trial application. He disputed that a split trial would lead to any real or substantial advantage. He also suggested the application was premature and that the court was not in a position to make an informed decision on this when the libel litigation was at a relatively early stage.

[80]Mr Speker did not accept a split trial would result in the libel claim proceeding more quickly, and he said there would be unnecessary duplication and potential delay, particularly from the bifurcated appeal process.

[81]He observed there was no cost benefit analysis or evidenced basis to support the proposition that splitting the trial in the way proposed would save costs, as there would to be two trials instead of one in the Libel Claim. He noted The FT's position in its Defence had been to not admit the special damages claim, rather than to deny this aspect of the claim and advance a positive case.

[82]Mr Speker submitted that the task of assessing general damages was quintessentially one for the trial judge. It is most conveniently undertaken at the same time as the liability trial, and it is not a complicated or time-consuming exercise. He noted that even where the trial judge upholds a defence, they will usually indicate the notional award of damages that they would have awarded, had they found in the claimant's favour, in order to avoid the need for a subsequent remedies trial if the judgment on liability is overturned on appeal.

[83]Mr Speker also maintained that causation should be a matter for the trial judge to resolve. He noted that The FT had not pleaded a positive case on causation and that its journalists had accepted in their subsequent reporting that the Articles had been responsible for Mr Odey's removal from OAM, and its subsequent collapse, so that causation should be a straightforward aspect to determine at the same time as liability.

[84]Mr Speker accepted there are cases where it is appropriate to determine special damages at a subsequent trial, but he suggested this was better addressed after disclosure in exchange of witness evidence, when the position would be clearer.

[85]Mr Speker considered The FT's draft timetable, as set out in his draft order, was wholly unrealistic. The scale of disclosure in respect of liability was extensive. It included, for example, disclosure of all the documents relating to The FT's trawling investigation on LinkedIn, its meetings and communications with numerous sources and the likely need for redaction of confidential material.

[86]Mr Speker agreed with Mr Kent's position in respect of the stay application. He emphasised that determining the section 2 truth defence in the Libel Claim would not necessarily involve the court making findings on each of the five PI claimants' accounts. He also suggested there was a risk that the PI claimants may not attend the libel trial, as they would be less invested in this than their own PI litigation, which should be heard first. He suggested that hearing the PI claims first would allow the court to "drill down deeper", into the credibility of the claimants’ accounts, including by reference to medical records and expert psychiatric evidence. He emphasised this was particular important given the serious allegations involved.

[87]As regards the Joint Trial Proposal, Mr Speker emphasised that the section 2 and section 4 defences should be tried together because of the degree of overlap.

CONCLUSIONS - THE STAY APPLICATION AND THE JOINT TRIAL PROPOSAL

[88]As I have described earlier, and as the parties accept, the Libel Claim and the PI Claim have a substantial degree of factual overlap in terms of whether the allegations of sexual assault made by each of the five PI claimants are true or not. As regards witnesses, as matters stand, and at the very least, each of the PI claimants and Mr Odey will have to give evidence twice over in relation to the disputed events. Each claimant's account relates to different time periods and different alleged events, and in light of the extensive factual dispute between the parties, it is likely that each of the six core witnesses I have referred to would face substantial cross-examination. It is also likely that there will be some supporting witnesses of fact called by one or other or probably both parties in respect of the various incidents, albeit the precise number of such additional witnesses is not known at this stage.

[89]Accordingly, in considering the best way to manage these cases, my starting point, in line with the observations of Warby J (as he then was) that I cited from Mitchell, is that it is clearly desirable to avoid these substantial issues being tried twice over in different actions. To do so would be inherently wasteful, involving as it would duplication of time, effort and cost, and it would carry with it the potential risk of inconsistent or apparently inconsistent outcomes.

[90]As Popplewell LJ and Warby LJ said in Limbu in such a situation, the court will take steps to case manage the cases in question, in order to avoid or minimise duplication of effort and cost, and the prospect of inconsistent outcomes or findings. A trial by judge alone of the common factual issues was one of a number of potential solutions that was referred to in the examples given by Warby LJ as to the ways in which the court's flexible case management powers could be deployed.

[91]In addition, in cases of this nature involving allegations of a highly personal and distressing nature, whatever the court ultimately decides, there is a further important consideration, namely the desirability that those involved should not have to give their evidence about such events on more than one occasion. I have already referred to the court having recognised this in cases involving allegations of sexual abuse in the context of section 33 Limitation Act issues.

[92]In the circumstances, I consider it is incumbent upon the court to try and arrive at a case management solution that avoids the prospect of there being these two separate trials, that both hear evidence about and determine the veracity of the PI claimants' accounts of being sexually assaulted by Mr Odey. Of course, any solution the court identifies must be mindful of the potential prejudice that could result, and of the need to be fair to all of the parties involved.

[93]In this instance, strikingly, none of the parties' proposals would avoid the two trial scenario.

[94]I was told that when the applications were made, The FT and the PI claimants understood, or at least hoped, that for the purposes of a subsequent trial of the PI claims, Mr Odey would agree to be bound by the findings made in respect of the truth defence, if The FT succeeded in establishing this at a prior trial on liability in the Libel Claim. However, he has declined to do so. I do not intend to take up Mr Millar’s and Ms Gumbel's invitation to assess the adequacy of his stated reasons for adopting this approach. They have criticised his reasoning and Mr Odey's counsel have defended it, but we are where we are. The fact of the matter is that it is common ground that issue estoppel would not apply because of the different parties, and also common ground that the court has no power to direct or require Mr Odey to be bound by the findings of the libel trial if that went first. Nor has it been suggested to me that it would be an abuse of process for him to decline to do so and to robustly defend the PI Claims, even if he lost the libel claim as a result of The FT making out the defence of truth.

[95]Accordingly, I simply cannot be confident that granting the stay application would address my core concern. A second trial as to whether the sexual assaults took place, would only be avoided in the event that the evidence of the PI claimants was not accepted by the judge hearing the liability trial (because of the concession I have explained the PI claimants have indicated).

[96]Whilst I am not asked to stay the Libel Claim, I note for completeness that doing so would also not provide an effective solution . The FT is not a party to the PI claims, and does not agree to be bound by their outcome or by findings made in those proceedings. If Mr Odey successfully defended the PI claims The FT could, nonetheless, pursue its truth defence in the Libel Claim, including by relying on the accounts of the five PI claimants.

[97]The authorities I have referred to indicate the court has a broad discretion, exercisable by reference to the overriding objective and the particular considerations I have already identified.

[98]Having carefully reflected upon the matter, I am quite satisfied that the Joint Trial Proposal is the best option, or, it might be said, the least worst option in all the circumstances. It is the only option that avoids the highly undesirable prospect of a second trial on the same substantial factual issues. As will be apparent from my summary of their respective submissions, none of the parties contended that the Joint Trial Proposal would be unworkable, and I am satisfied that it provides a feasible solution. In terms of whether the women were sexually assaulted as they alleged, the same burden and standard of proof applies in both the Libel Claim and the PI Claims.

[99]Further, I do not consider that a joint trial would require the trial judge to undertake unrealistic and mind bending mental contortions, as suggested by Mr Kent. He said that this was because some of The FT's evidence in the libel trial, particularly the accounts of the other women, would not be admissible in the determination of the PI claims. Whilst this phrase is more commonly used in the context of criminal proceedings, I will refer to this question as one of cross-admissibility, as the parties did so in their submissions to me.

[100]The specific extent to which cross-admissibility issues would arise is unknown at this stage when disclosure and exchange of witness statements have yet to take place in the Libel Claim and witness evidence is yet to be exchanged in the PI Claims and the parties have yet to indicate the extent to which it is relied upon or opposed. However, I am satisfied that cross-admissibility issues would not present an insuperable problem. Firstly, High Court judges are well used to putting inadmissible evidence out of their mind when they have to decide particular issues. Indeed, juries in criminal cases are often expected to follow relatively complex directions on the extent to which, if at all, cross-admissibility applies in relation to evidence given in respect of several counts of sexual assault on an indictment. Secondly, even if there were separate trials in this instance, the judges at both the libel trial and the PI trial would have to grapple with the extent to which evidence in respect of one of the allegations of sexual assault was admissible in support of other allegations of sexual assault made in the same proceedings. Whilst I accept cross admissibility issues will be more complex in a joint trial, given that such issues would likely arise in any event (as I have explained) and are not confined to a scenario where there is a joint trial, this aspect is not a reason in itself to avoid the joint trial option.

[101]As will be apparent from my summary of their submissions, Mr Kent and Mr Speker did not put forward any alternative solution to the two-trial problem, despite the court's invitation to do so, other than to suggest that consideration of a joint trial be deferred until after disclosure was complete, and witness statements and expert evidence have been exchanged in both the Libel Claim and the PI Claim. I am not attracted to the idea of kicking the can down the road in this way. The central imperative of the desirability of avoiding two liability trials on the same disputed factual evidence will apply then, as it does now and there is nothing to suggest that an alternative credible solution will have presented itself by that juncture.

[102]I heard comprehensive submissions on the matter, and I believe it is important to grasp the nettle at this stage. There is a further reason why I consider it undesirable to defer consideration of the Joint Trial Proposal. Whilst I have not found it necessary or productive to set out the details, it was apparent to me from the witness statements and the parties' correspondence, that there has been a considerable amount of tactical manoeuvring taking place in advance of this hearing. If I make no decision at this stage as to whether or not to direct a joint trial and simply allow for both sets of proceedings to continue towards their respective trials, there is a significant prospect that the tactical manoeuvring will continue. Those who will want to argue in due course that the libel trial should be heard first, will have an interest in slowing down the progress of the PI Claims to trial, whereas those who will want to contend in due course that the PI Claims should be heard first, will have an interest in slowing down the progress of the Libel Claim to trial. I make clear, I am not seeking to apportion blame in this regard, I am simply identifying that this is a likely feature going forward, if a decision is not made at this juncture.

[103]I also note that most of the objections raised by Mr Kent and Mr Speker to the stay application are, in fact, met by the Joint Trial Proposal. By way of example:- 1. The court will have before it a wider range of issues and material that will enable the PI claimants’ accounts to be appropriately tested in cross-examination. (I will return to the scope of the joint trial later in this judgment.) 2. Whilst I do not consider that there was much force in this contention, any risk of a libel trial on liability not determining the truth of the PI claimants' accounts would be avoided. 3. Whilst I consider there is even less force in the suggestion that one or more of the PI claimants might not attend the libel trial as they are less invested in those proceedings, the joint trial would also avoid that risk materialising. 4. A trial of the sexual assault allegations will not be unduly delayed. The PI claims are not far from being ready for trial. The FT has emphasised that bringing the Libel Claim to trial as soon as possible is its chief priority and this is in a context where the libel trial will centre on The FT's defences, so the greater burden of preparing for disclosure and exchange of witness statements lies on The FT's side. Furthermore, given the recognised importance of libel trials being heard expeditiously, as I referred to earlier, it is to be hoped that the joint trial will have the benefit of the Media and Communications listing timescales.

[104]In the circumstances, I will refuse the application for the stay and direct that there is to be a joint trial of the issues that I will come on to identify.

[105]I acknowledge that the proper and fair conduct of the joint trial will involve careful thought and planning. With the agreement of the parties, I did not hear detailed submissions at this stage as to the way in which the trial will be conducted. It is right that the parties should first have the opportunity to reflect upon this, and it may also be that the court will be better placed to undertake that exercise after the evidential position is clearer, at least in relation to the PI claim, which is further advanced in terms of evidence.

[106]However, the parties did address me on the scope of the joint trial. They wanted to do so, as if I adopted the Joint Trial Proposal, the scope of the trial would, in turn, inform the trial preparation steps that are to be undertaken. Accordingly, I will return to the scope of the joint trial after I have addressed the split trial application.

CONCLUSIONS - THE SPLIT TRIAL APPLICATION

[107]As I have explained when setting out the legal framework, the question for me is whether there is "real and substantial advantage" of directing that quantum be dealt with separately in the Libel Claim.

[108]I do not accept that it is premature to decide the question at this stage. The nature of the special damages claim is apparent from the pleadings.

[109]I have considered the issue by reference to the eight factors identified in Electrical Water Recycling, and I will explain my reasoning by reference to those factors.

[110]First of all, to summarise my conclusion, I have decided that there is a clear benefit to the special damages claim being heard subsequently, if the court finds in Mr Odey's favour at the liability stage of the Libel Claim. However, I am not persuaded that there is a clear benefit to directing that general damages, causation or injunctive relief should also be decided at the subsequent stage. I turn to the specific factors. Whether the prospective advantage of saving the costs of an investigation if liability is not established outweighs the likelihood of increased aggregate cost if liability is established and a further trial is necessary

[111]I am satisfied that the costs involved in preparing for and conducting the trial of the complex special damages claim will be very extensive. I have already summarised the nature and elements of this claim. Substantial disclosure would, inevitably, be involved. It is likely that witnesses of fact would be required who were not involved in the liability trial. Moreover, complex expert forensic accounting evidence would be required, as Mr Millar described, and Mr Speker did not take issue with this in his response. Indeed, Mr Odey accepted in his Directions Questionnaire, that the court will require "significant expert assitance" on this aspect. An early estimate of the expert's costs on Mr Odey's side was given as £100,000 - £150,000.

[112]Whilst it is right to say a full budgeting exercise has not been produced, it is apparent at this stage from the nature of the pleaded claim that substantial costs would be involved in preparing and trying the claim for special damages.

[113]It is also possible that material from Mr Odey's challenge to the FCA's decision may need to be disclosed. I understand his appeal is likely to be heard by the Upper Tribunal in March 2026. There will then be some further time after the hearing before a judgment is issued. It would be unfortunate if this were to delay preparations for the trial, and that risk can be removed if the special damages aspect is deal with separately.

[114]Obviously if the trial is split in this way and The FT succeeds on liability, there will be no need for the special damages claim to be tried at all, and significant time and cost will have been saved. Whereas, if the special damages aspect is heard with the liability issues, costs will have been incurred unnecessarily. In addition to the time and cost involved in preparing for trial, I was told that including the special damages claim within the libel trial would have the effect of adding a week to its length, as I have indicated. If Mr Odey were to succeed on liability, then settlement of the special damages claim, or at least agreement of aspects of it will be significantly more likely in those circumstances. Failing that, the judgment on liability will likely assist with the narrowing of quantum issues, and the parties could prepare their respective cases on quantum on the basis of what had actually been found.

[115]If the question of whether there should be a split trial is deferred, as Mr Speker suggested, substantial time and cost will, in any event, be expended in the interim on the extensive disclosure exercise and in the preparation of witness statements and expert evidence. This is plainly undesirable in circumstances where this may prove to have been unnecessary if the split trial is then ordered. Given the scale and nature of the special damages claim it is, in my view, better for the decision to be made at this stage. This also has the advantage of avoiding the unnecessary delay that would arise from including these substantial preparatory steps in the directions timetable.

[116]In the circumstances, I am satisfied that savings of cost considerations are in favour of a separate trial of the special damages claim.

[117]The position is different in relation to general damages. I appreciate that serious harm is not in issue and thus Mr Odey is likely to adduce some evidence in relation to general damages that would not otherwise be before the court on a trial that was confined to the section 2 and section 4 defences. However, the compass of that evidence is unlikely to be extensive, and nor are the preparation costs, particularly on The FT's side.

[118]I also consider that the cost position is different in relation to causation. The FT's defence does not advance an alternative cause for the loss of Mr Odey's employment, and the collapse of OAM. As I have noted, the impact of the Articles was accepted by the journalists who had worked on them. Accordingly, I do not consider that the trial preparation steps in relation to this aspect is likely to involve a significant escalation of costs, and the evidence in respect of it is likely to be limited. The FT will, in any event, be preparing and serving witness statements from the journalists involved.

[119]The grant of injunctive relief tends to follow an unsuccessful libel claim when there is a risk of repetition of the libel. Conclusion of this issue in the main trial will not escalate costs or increase the evidence to be heard to any significant extent at all, and it is unnecessary for me to make further reference to this aspect. What are likely to be the advantages and disadvantages in terms of trial preparation and management

[120]I have already referred to the additional disclosure, witness evidence and expert evidence that could be avoided for the main trial, if special damages are dealt with separately.

[121]If causation and remedy issues are determined at the joint trial, I acknowledge this would, inevitably, increase the number of issues the court has to resolve, and an already complex and lengthy trial would be extended further. However, the impact in this regard would be limited compared to the large impact that would occur if the evidentially complex special damages claim were also to be included. I have already explained why evidence relating to the general damages and causation issues are unlikely to be extensive.

[122]Of course, I also bear in mind the impact of there being a second trial if Mr Odey were to proceed on liability. However, in terms of the special damages claim, it does not seem to me that this way of splitting matters would take up a significantly greater share of the court's resources overall in light of the observations I have already made in respect of the first factor. Would a split trial impose unnecessary inconvenience or strain on witnesses who may be required in both trials

[123]As far as the special damages claim is concerned, as far as I am aware, Mr Odey is likely to be the only witness common to both trials. If causation were part of a second trial, it is possible that some or all of the journalists who wrote the articles will also be required to give evidence in the second trial for the reasons I have explained. However, any such evidence is likely to be limited, and might well be capable of agreement. Would a single trial to deal with both liability and quantum lead to excessive complexity and diffusion of issues, or place an undue burden on the judge hearing the case

[124]Whilst I consider that an experienced High Court judge would be able to deal with a single trial if needs be, given the multiplicity of issues to be determined at the joint trial and the complex nature and extent of the special damages claim, a separate trial addressing special damages would significantly reduce the overall complexity of the main trial. Given the much more limited nature of the general damages and causation issues, I do not consider their inclusion in the joint trial gives rise to a comparable concern.

Would a split trial cause prejudice to one or other party

[125]Mr Odey has not asserted any specific prejudice in relation to the hiving off of his special damages claim. Indeed, Mr Speker indicated that he did not object to this, albeit he considered the decision would be better addressed at a later stage. As I have already explained, Mr Odey's primary position in the hearing before me is that the PI claim should go first, so this is not an instance where the claimant is suggesting that they would be prejudiced by a delay in their entitlement to damages being assessed.

[126]I accept that Mr Odey could be disadvantaged to a degree if general damages were not assessed at the joint trial. Whilst I envisage that every reasonable effort would be made to have the same judge in the main trial and the subsequent trial of the special damages claim, this could not be guaranteed. In such a scenario, I accept that the judge at the joint trial would be better placed to assess general damages. Although the judge at the second trial would have the benefit of the earlier judgment, and potentially transcripts from the first trial, the latter would not necessarily convey, for example, the tone in which Mr Odey was questioned which, in turn, might be relevant to arguments about aggravation of damages. Furthermore, to return briefly to the question of costs, it would be more cost effective for the judge hearing the joint trial to determine general damages at that time, rather than have a second judge reading through transcripts of multiple days of evidence at a later stage, in order to get a feel for what went on at the main trial.

[127]The only point of prejudice that was raised by The FT related to the impact of delay, which I will come on to address when I turn to the eighth factor.

Are there difficulties in defining an appropriate split, or is a clean split possible

[128]Split trials of liability and quantum or split trials where special damages are assessed separately from the other issues are not uncommon in libel cases, as I have already indicated.

[129]I can see no good reason why a clean split cannot be achieved in relation to the special damages claim. Mr Speker did not really suggest otherwise.

[130]I have already acknowledged that causation and general damages would involve some overlap with the evidence given at the joint trial. What weight is to be attached to the risk of duplication, delay and the disadvantages of the bifurcated appellate process

[131]I do not consider there is likely to be duplication of evidence in respect of the special damages claim, if that is hived off to a later stage, it raises discreet issues.

[132]I accept a bifurcated appeal process is a factor to be taken into account that points in the other direction from the majority of factors that I have identified.

[133]There is some risk of a degree of duplication if issues of causation and/or general damages when left to a second trial. Generally, what is perceived to offer the best course to ensure that the whole matter is adjudicated as fairly, quickly and effectively as possible

[134]I accept Mr Millar's submission that a key consideration in this case is that the liability issue should be tried as soon as is reasonably possible. For somewhat different reasons related to the age of the allegations, those acting for Mr Odey are also keen for this to happen.

[135]The time when a joint trial can take place is likely to be significantly delayed by the inclusion of the special damages claim amongst the issues to be resolved, given its complexity and the necessary preparatory and evidential steps I have referred to.

[136]From the submissions made to me, I do not consider that general damages or causation are likely to have the same impact on delaying the hearing of the joint trial. I have already explained why evidence in respect of those matters is likely to be of limited compass.

[137]Accordingly, I will grant the split trial application as far as the special damages claim is concerned. However, I consider that as matters stand, issues of causation and general damages are better addressed in the joint trial, and that a clear benefit for delaying the hearing of those issues has not been shown. CONCLUSIONS - SCOPE OF THE JOINT TRIAL The Libel Claim

CONCLUSIONS - SCOPE OF THE JOINT TRIAL

[138]In terms of the defences to the Libel Claim, I consider that the joint trial should encompass the section 4 defence as well as the section 2 defence. I am mindful of the understandable wishes of The FT and the PI claimants that the joint trial be heard as soon as is reasonably possible. However, it appears to me that there is likely to be a significant degree of overlap in terms of disclosure and witness evidence. Materials from the journalists’ investigation are likely to be relevant to both of these defences, as, potentially, are the ways that accounts were obtained from the various complainants. Accordingly, I do not consider that hiving off the section 4 defence will significantly reduce the scale of the disclosure exercise, or the preparation of The FT's witness evidence.

[139]As I have noted, Mr Millar stressed that the timescales included in his client's draft order in relation to a trial on liability (on both defences) were realistic and that this was because The FT was determined that these matters should come to trial as soon as possible. It therefore seems to me that including the section 4 defence, which will primarily rest on The FT's disclosure and evidence, rather than Mr Odey's disclosure in evidence, will not significantly elongate the time needed for the preparatory steps to trial. As including the section 4 defence will extend the length of the trial, I acknowledge that this could have an impact on the available trial window. However, I do not consider that what is no more than a possibility in that respect, outweighs the advantages of the section 4 defence being heard and determined at the same time . For the avoidance of doubt, potential delay was the only objection raised by Mr Millar and Ms Gumbel to the inclusion of the public interest defence in the joint trial.

[140]I have already explained why it is clear to me that the complex special damages aspect of the Libel Claim should be determined at a later stage, if it arises, rather than being included within the joint trial. I have also explained why I consider that causation and general damages should be addressed as part of the joint trial.

The PI Claims

[141]I agree that limitation should be included in the joint trial, essentially for the reasons identified by Mr Kent and Mr Speker. There is a potential overlap with the determination of whether the sexual assault allegations are established, as I have outlined. As I have also indicated, Ms Gumbel did not oppose limitation being dealt with by the court at that stage. If that were not the case, her clients could end up having to give evidence on matters relating to their allegations at a second hearing as well. I also consider that addressing these matters at the same time as the liability allegations is likely to lead to a greater saving of costs and court time overall.

[142]I have found it more difficult to determine whether damages and causation should also be included in the joint trial in respect of the PI claims. Doing so is unlikely to occasion delay, given that I have been told the expert evidence is not far away from being ready to exchange. However, I am conscious of not adding to the complexity of this trial, where that can sensibly and fairly be avoided, given the multiple issues that are already to be determined on that occasion. On the other hand, there may be force in Mr Kent and Mr Speker's points about the potential overlap between the psychiatric evidence, credibility and limitation questions. It would certainly be undesirable for the same experts to have to give evidence on more than one occasion.

[143]Whilst I was not addressed on this point, a further factor to consider may be that some of the PI claims include a claim for the tortious intentional infliction of injury, in addition to the claim for assault. Unless such matters are capable of agreement, if the relevant sexual assault/s are proved, it may be necessary to include evidence relating to the injuries that are relied on for these purposes.

[144]In all the circumstances, this seems to me to be the one area where it would be very useful for the court to have the exchanged witness statements and expert evidence in the PI Claims before making a decision on whether these aspects should be included in the joint trial. At this stage, for example, the degree of dispute between the experts and whether the experts are likely to be required to give oral evidence is simply unknown. Deferring the resolution of this question to a later stage is unlikely to impact substantially on the overall length of the trial - as I have already mentioned, Ms Gumbel estimated this aspect would require two to three days. Accordingly, taking this course would not prevent the listing of the trial in the interim.

[145]Furthermore, deferral of this question will not impact on trial preparation steps. It is plain that matters must now proceed towards the already overdue exchange of witness statements and expert reports in any event.

[146]It may be that aspects of the special damages claims in the PI claims, such as treatment costs and/or loss of earnings are capable of agreement, but that is not clear to me at this juncture.

OUTCOME AND CONSEQUENTIAL DIRECTIONS

[147]For the reasons I have explained, I decline to order a stay of the PI Claims.

[148]I will allow The FT split trial application, insofar as it relates to the special damages claim. I will direct that there will be a joint trial of the following issues – In the Libel Claim: 1. Whether the statements complained of (or any of them) are substantially true in the agreed meaning, pursuant to section 2 of the Defamation Act, 2013. 2. Whether the statements complained of (or any of them) were or formed part of the statements on a matter of public interest, which the defendant reasonably believed that it was in the public interest pursuant to section 4(1) of the Defamation Act 2013 to publish, and continue to publish. And if liability is established: 3. What award of general damages, if any, should be awarded to the claimant. 4. Causation. 5. What other remedies, if any, should be awarded to the claimant by way of non-pecuniary relief. I have deliberately not provided a specific wording in relation to the causation issue, because this strikes me as something that the parties may wish to think about and address me on in terms of how that is formulated in the order. In the PI Claims: I will list the issues, but give the parties an opportunity to consider and address me on how the following should be worded if there are disputes that need to be resolved:- 1. Whether the defendant sexually assaulted JFM, as alleged. 2. Whether the defendant sexually assaulted MAM, as alleged. 3. Whether the court should exercise its discretion pursuant to section 33 of the Limitation Act, 1980 to permit MAM's action to proceed. 4. Whether the first defendant sexually assaulted Ms Maher, as alleged. 6. Whether the first defendant falsely imprisoned Ms Maher, as alleged. 7. Whether the first defendant intentionally inflicted injury upon Ms Maher, as alleged. 8. Whether the second defendant is vicariously liable for such conduct of the first defendant, as is proved in Ms Maher's case. 9. Whether the second defendant was negligent, and/or in breach of statutory duty and/or in breach of contract in relation to Ms Maher, as alleged. 10. Whether the court should exercise its discretion pursuant to section 33 of the Limitation Act, 1980 to permit Ms Maher's action to proceed. 11. Whether the defendant sexually assaulted MJJ, as alleged. 12. Whether the defendant intentionally inflicted injury upon MJJ, as alleged. 13. Whether the court should exercise its discretion pursuant to section 33 of the Limitation Act, 1980 to permit MJJ's action to proceed. 14. Whether the defendant sexually assaulted JAS, as alleged. 15. Whether the defendant intentionally inflicted injury upon JAS, as alleged. 16. Whether the defendant undertook a course of conduct constituting harassment in respect of JAS, contrary to section 1(1) of the Protection of Harassment Act, 1997, as alleged. 17. Whether the court should exercise its discretion pursuant to section 33 of the Limitation Act, 1980, to permit JAS' action to proceed.

[149]In relation to the Libel Claim, I will direct that in the event it is necessary, there will be a second trial of the following issues: 1. What award of special damages, if any, should be awarded to the claimant; and 2. Any issues concerning interest on the above.

[150]Given the complexity and importance of these matters, I will also direct that the Libel Claim and the PI Claims are now to be case managed together by the Judge in charge of the King's Bench List, and/or the Judges in charge of the Media and Communications List.

[151]The question of whether causation and damages in the five PI claims should be included within the joint trial, will be determined in due course by the Judge/s case managing the litigation.

[152]Whilst I consider that some case management aspects should be left to the Judge/s who will be case managing these cases going forward, it appears to me that there are some directions I can usefully give at this stage, in order to progress matters. I will hear the parties on this, but I have in mind the following.

[153]In respect of the PI Claims: revised dates for the exchange of witness evidence, expert evidence and if necessary, the provision of updated schedules of loss and/or counter schedules. There will also need to be an order indicating that other previous case management directions are superseded by the order for a joint trial that I have made.

[154]In relation to the Libel Claims: allocation to the multi-track, disclosure and inspection in relation to the joint trial issues and exchange of witness statements of fact in relation to the joint trial issues. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: civil@epiqglobal.co.uk