“MP coached client before committee grilling”
“It is one of the essential freedoms that the newspapers should be able to make fair comment on matters of public interest. So long as they get their facts correct, they are entitled to speak out. The editor of “The Times” sees this case as a challenge to this freedom. He asks that this challenge should be tried by a jury. He himself came before us. He reminded us of the right given by our constitution to a defendant who is charged with libel, either in criminal or in civil proceedings. Every defendant has a constitutional right to have his guilt or innocence determined by a jury. This right is of the highest importance, especially when the defendant has ventured to criticise the government of the day, or those who hold authority or power in the state.”
“At one time there were those who would take away this right. There were judges who claimed that it was for them to declare whether a paper was a libel, or not. On the trial of the Seven Bishops in 1688 [ The Seven Bishops' Case (1688) 3 Mod.Rep. 212; 12 St.Tr. 183–524 ], Wright C.J., who is described by Lord Campbell as “the lowest wretch that had ever appeared on the bench in England” (see The lives of the Chief Justices of England, (1849), volume II, p. 104) told the jury that the question whether the petition presented by the bishops was a libel was a question of law, and that in his opinion it was a libel [see p. 109 and 12 St.Tr. 183 , 426]. Nearly one hundred years later — in 1784 — Lord Mansfield, one of the greatest ornaments of his day, repeated the error. He held on several occasions that the question of libel or no libel was for the judge. But his views were disputed by Willes J., who held that the jury have “a constitutional right, if they think fit, to examine the innocence or criminality of the paper…”: see Rex v. Shipley (1784) 4 Doug. K.B. 73, 171. Eight years later, in 1792, the legislature, at the instance of Charles James Fox, adopted the view of Willes J. It gave every defendant on a libel charge the right to have his guilt or innocence determined by a jury: see the Act of 32 Geo. III, c. 60; and Lord Stanhope's celebrated broadside on the rights of juries in 1792 [see e.g., Dictionary of National Biography (1898), vol. 54, p. 3].Fox's Libel Act 1792 was in terms confined to criminal proceedings, but it has been universally accepted that the same right applies to civil proceedings also.”
“He says that he has often in the past criticised the judiciary, and that is one of the reasons why he would wish to be tried by a jury. If he means by this that he thinks the judges, or any one of them, would be prejudiced against him, he would be entirely wrong. Every single one of them would be most scrupulous to be fair to him. No judge whom he had criticised would dream of sitting on the case. But I would not let him have any disquiet on this score. One of the advantages of trial by jury — as proclaimed by Blackstone — is in case the judges should cease to be impartial: see his Commentaries , 8th ed. (1778), III, p. 380, IV, p. 349. So Mr. Levin too, asks for a jury here.”
“I find these reasons compelling. Looking back on our history, I hold that, if a newspaper has criticised in its columns the great and the powerful on a matter of large public interest — and is then charged with libel — then its guilt or innocence should be tried with a jury, if the newspaper asks for it, even though it requires the prolonged examination of documents.”
“Section 6 effected a great change in the way actions at common law were tried. The right which litigants had enjoyed for centuries of having their cases tried by a jury if they so wished was extinguished save in a few cases. The discretion of the court or judge was put in its place. Why did Parliament make special provision for cases in which there was a charge of fraud against a party or there was a claim in respect of libel, slander, malicious prosecution, false imprisonment and the now obsolete claims in respect of seduction or breach of promise of marriage? All these cases have a common characteristic, namely, that the trial is likely to end with the honour, integrity and reputation of either the plaintiff or the defendant being tarnished or even destroyed. Parliament must have thought that in common law claims in which issues of this kind arose it would be wrong to get rid of a mode of trial which had become identified in the minds of many with constitutional rights and liberties. In my judgment this factor must be considered whenever the court, on being satisfied that the trial will require prolonged examination of documents or accounts, comes to exercise its discretion.”
“Another facet of the same factor is the importance to the public of the honour, integrity and reputation of the parties in a libel action. The wiping out of a litigant's reputation may be of no consequence to anybody save himself, his family and his friends, but the wiping out of another's, for example, a cabinet minister's, may have consequences for the whole nation. When the public is likely to be affected by the result of an action for defamation it may be advisable to bring the public into the administration of justice by ordering trial by jury, even though the trial may be long, the issues complex and the documentary evidence massive and formidable.”
“The defendants have not satisfied me that a judge sitting alone could not deal adequately and fairly with issues involving their professional competence and integrity ….”
“There remains the question whether the issues in this case are likely to affect the public to such an extent that through a jury they should be involved. This factor does not seem to have been considered by Ackner J. Stripped of all the detail the charges come to this. The plaintiffs are alleged by the defendants to have put profits before people. If the facts upon which they have based this allegation are true, the court may have to decide whether the imputation of dishonour was one which the defendants could fairly make against the plaintiffs. Jobs for men or profits for shareholders is the Morton's fork of our times. I have no doubt that many judges would welcome the help of a jury on a problem of this kind. The opinions of 12 jurors may reflect the public's view more accurately than the assessment of any judge. The public, through the jury, would be concerned in yet another way. If the defendants lose this action and heavy damages are awarded against them, the newspaper scene in this country may never be the same again. The reputation which “The Times” has enjoyed for so long around the whole world for responsible journalism will be badly dented, if not destroyed. The destruction of its reputation would be the destruction of a national institution. In my judgment a trial which could have this result should not be the responsibility of one man.”
“The implication is that, once the 28 days provided for inCPR 26.11 have expired, it is for the court to decide the mode of trial, and the court must do so starting with the predisposition in favour of a trial without a jury. And this is so whatever the parties may have agreed or may wish. The wishes of the parties are of course a factor. But the court should not abstain from addressing its mind to all the relevant factors, including in particular those of case management, simply because the parties agree between themselves.”
“Trial to be without a jury unless the court orders otherwise (1) Insection 69(1) of the Senior Courts Act 1981 (certain actions in the Queen's Bench Division to be tried with a jury unless the trial requires prolonged examination of documents etc) in paragraph (b) omit “libel, slander,”
“A claim for libel or slander must be tried by Judge alone, unless at the first case management conference a party applies for trial with a jury and the court makes an order to that effect.”
“Those convinced that the charges made against the plaintiff were true might be tempted to criticise a judicial decision in the plaintiff’s favour as a whitewash. Similarly, those convinced that the charges against the plaintiff were false might criticise the jury’s verdict as a lottery or the product of incomprehension (a not unfamiliar complaint when a jury returns a surprising or unpopular verdict).”
“Furthermore, it seems to me important in the public interest and in the interest of each of the parties that the case should culminate in findings, for or against the plaintiff, on each of the main issues in controversy. A general verdict of a jury could well leave room for doubt and continuing debate whether, on hotly contested issues, the plaintiff or the defendants have been vindicated. A reasoned judgment, giving the judge's conclusions and his detailed reasons for reaching them, would by contrast settle, one would hope once and for all, whether or not the plaintiff had misconducted himself in each and every one of the ways charged.”
“The disadvantages of trial with a jury in cases where the law is complicated were noted as long ago as Richards v Naum[1967] 1 QB 620 , 626 and 627. These disadvantages have increased in recent years with the increasing development and complexity of the law of defamation. This is in part due to the continuing need to develop the law to bring it into harmony with the European Convention on Human Rights. This has led to such major developments as the Reynolds defence, and the new understanding of malice for honest comment in Cheng (an improper purpose no longer counts as malice in honest comment). Where there is uncertainty as to the law, as there so often is today, a judge can formulate his reasons on alternative bases, and the Court of Appeal can substitute one disposal for another, according to the correct view of the law. It is less likely to be necessary to order a retrial, as may be inevitable if a jury has been misdirected as to the law.”
“Contemporary practice has an eye, among other things, to proportionality; the greater predictability of the decision of a professional judge; and the fact that a judge gives reasons… The overriding objective in rule 1.1 and rule 3.1(2)(m) are there for general case management purposes.”
“114. … Trials by jury in libel cases now commonly involve the arguing of the same point at least twice and sometimes several times over. It is often not one trial by a judge with a jury, but one trial by a judge followed by another trial by a jury. Each party commonly seeks a ruling from the judge on as many issues as possible to the effect that the opponent’s case on that issue should be withdrawn from the jury. That is what is happening in this application that is now before me. If that application is unsuccessful (as this application has been in part), and there is a trial by jury, very similar arguments are redeployed before the jury. All too often there is a third or subsequent set to this match, when the same point is argued before the Court of Appeal, or even the Supreme Court as happened in Spiller. That is a real risk in the present case, where Mr Price wishes to argue the applicability of Reynolds to comments. There is not uncommonly a further set in the form of a retrial. There have been a worrying number of retrials in recent years where juries have been unable to agree. That is not a risk where trial is by judge alone. 115. This multiplicity of opportunities to argue the same point is one of the major reasons why the costs of libel actions have become so disproportionate as to risk condemnation as an interference with freedom of expression and the right of access to the court (see MGN v UK[2008] ECHR 1255 ). In these circumstances the effect of theHuman Rights Act 1998 is to require judges and Parliament to continue to develop the law to make it Convention compliant. Trial with a jury makes such development more difficult.”
“(1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any “bane and antidote” taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question... (8) It follows that “it is not enough to say that by some person or another the words might be understood in a defamatory sense.”
“To say that a man’s conduct was dishonourable is not comment it is a statement of fact. To say that he did certain specific things and that his conduct was dishonourable is a statement of fact coupled with a comment.”
“76. The relevant principles are helpfully summarised at paras 28 and 29 of Sorguç v Turkey (Application No 17089/03) (unreported) given23 June 2009 . Freedom of speech may be restricted in order to protect reputation where this is necessary in a democratic society to meet a pressing social need. Thus a test of proportionality has to be applied. In applying that test there is a significant distinction between a statement of fact and a value judgment. A statement of fact will be true or untrue and the law can properly place restrictions on making statements of fact that are untrue. A value judgment is not susceptible of proof so that a requirement to prove the truth of a value judgment is impossible to fulfil, and thus infringes article 10. “However … even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive: Jerusalem v Austria(2001) 37 EHRR 567 , para 43.” 77. In Nilsen and Johnsen v Norway(1999) 30 EHRR 878 , para 50 the court equated the imputation of improper motives or intentions with value judgments rather than statements of fact, having regard to the fact that from the wording of the statements and their context it was apparent that they were intended to convey the applicants' own opinions.” “However … even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive: Jerusalem v Austria(2001) 37 EHRR 567 , para 43.”
“What I say to people in private is another matter altogether.” [4] Yeo, chairman of the energy and climate change committee, was approached by reporters claiming to represent a green energy company. [5] He was filmed revealing that he had coached a paying client on how to influence the committee. [6] The former environment minister described how he had advised John Smith, managing director of GB Railfreight, before the executive gave evidence to the committee last month. Yeo is a paid director and shareholder of Eurotunnel — the firm’s parent company. [7] Yeo publicly excused himself from asking questions because of the conflict of interest. However, he did not tell his fellow MPs that he had coached the executive. “I was able to tell him in advance what he should say,”
“If you want to meet the right people, I can facilitate all those introductions and I can use the knowledge I get from what is quite an active network of connections.” [12] Asked if that extended to government figures, Yeo replied: “Yes.” [13] The House of Commons code of conduct forbids members from acting as paid advocates, including by lobbying ministers. [14] Yeo also said he could help them by guiding them on submitting evidence to his own committee, which he described as “a good way of getting your stuff on the map”. [15] Yeo is the latest politician to be implicated in the “Westminster for sale” scandal that has engulfed parliament after The Sunday Times revealed last week that three peers had agreed to ask parliamentary questions, lobby ministers and arrange events in the Lords for paying clients. [16] The Lords authorities launched an investigation into Lord Mackenzie of Framwellgate, Lord Cunningham and Lord Laird. All three deny wrongdoing. [17] McKenzie and Cunningham were suspended by the Labour party pending the outcome of the investigation, while Laird resigned from the Ulster Unionist party. [18] The MP Patrick Mercer also resigned the Tory whip after being implicated in a separate investigation into parliamentary questions for cash. [19] Last night a fourth peer, Lord O’Neill of Clackmannan, referred himself to the parliamentary commissioner for standards after being contacted by this newspaper in relation to comments he made in a meeting with the undercover reporters. [20] The morning after the meeting with Yeo, the reporters emailed to withdraw their offer of work. Six hours later, Yeo wrote back to say that he was relieved to hear that the work was no longer available because: “It spares me some embarrassment.” [21] He wrote: “It was increasingly apparent to me during our talk that what you were seeking was someone to advance your interests by lobbying. This is a function which is not compatible with my position as an MP and chair of a select committee. I was going to email you later today to explain this but your email has removed the need for me to do so.” [22] Yeo last night denied “absolutely” that he had breached the MPs’ code of conduct, or offered to do so in the meeting with the undercover reporters. [23] He said the meeting had only been a “preliminary discussion” about what appeared to be a worthy cause, and denied having committed to working for the reporters’ fake company for one day a month. [24] The MP denied offering to provide parliamentary advice or advocacy, which he said were roles he had never performed for any company, because he said that would be a breach of the code. [25] He said that he had not tutored Smith on what he should say to his select committee. [26] Yeo said he had decided to withdraw from any further discussions with the reporters before receiving their email on the morning of May 22 because he had concluded that what they were suggesting he do for their company amounted to “an impermissible lobbying role”. [27] A spokesman for GB Railfreight said: “At the evidence session of the energy and climate change committee, GBRf made the same arguments that we consistently make in submissions, articles and on the record time and again.”
“‘I told him in advance what to say. Ha-ha’ The chairman of a Commons committee has boasted of how he can promote businesses in which he has an interest. [1] TIM YEO watched silently as the sharp-suited freight executive testified to his powerful committee of MPs in the House of Commons. [2] It was unlike the vocal Tory MP to take a back seat in his role as chairman of the energy and climate change select committee (ECCC) — but, for today, he had excused himself from joining his colleagues in questioning the executive to avoid accusations of a conflict of interest. [3] Before the MPs was John Smith, managing director of GB Railfreight, making the company’s case against steep new levies on cargo trains transporting biomass. [4] The firm is owned by Eurotunnel, of which Yeo himself is a paid director and shareholder, so he could not be seen to help Smith push its commercial interests before the committee. [5] But Yeo had devised another way to ensure his colleagues got the right message. He would later reveal how before the hearing he had tutored the executive on what he needed to say to win over his fellow MPs. [6] At a lunch immediately after the hearing with two strangers offering him a new job as their parliamentary advocate and adviser, Yeo could not resist boasting about what he had done. As he explained what he was willing to do for them behind the scenes, he confided: “This morning I had a case, in front of the committee we had a company called Great British Railfreight who have big contracts for moving coal and biomass around the country. And I said, because GB Railfreight is a subsidiary of Eurotunnel, I could not ask this guy any questions in public because it would look as though I might be biased about that. But what I do for him in private is another matter altogether, obviously.” [7] Asked to elaborate, he leant forward: “I was able to tell him in advance what he should say,” he confided, before rolling back in his chair in a gust of laughter. [8] Unfortunately for Yeo, the two strangers he chose to let in on his secret were undercover reporters from The Sunday Times who were filming him on hidden cameras as he explained how he could secretly help push private business in parliament for cash. [9] Companies giving evidence to select committees frequently hire former MPs to coach them on their submissions — but it would be regarded as highly irregular for a serving member of the committee to tutor private clients on what to say. [10] House of Commons rules ban MPs from accepting “any fee, compensation or reward” in connection with the promotion of any matter “submitted, or intended to be submitted . . . to any committee of the house”. [11] The reporters had approached Yeo as part of a wider investigation into how MPs and peers are selling their power and influence in Westminster to private clients. [12] Posing as representatives of a solar energy company pushing for new laws to boost its business, they had spoken to a number of companies and peers about how to buy their way into the heart of parliament. When they inquired about who they should be speaking to on the subject of green energy, Yeo’s name kept coming up. [13] Yeo has been a key figure in green politics since he served as environment minister under John Major in the 1990s. As chairman of the ECCC, he is in charge of overseeing government policy and he has played a key role in formulating the Energy Bill currently passing through the Commons. [14] But the 68-year-old MP has been dogged by repeated allegations that he is compromised by his array of green business roles, which have proved lucrative. So rather than hiring another politician to help them lobby the powerful committee chairman, the reporters decided to cut out the middleman and go straight to the top with their offer of paid work. [15] Yeo has always strenuously denied that his extensive business interests affect his conduct in parliament in any way. But his remarks to the reporters during a 90-minute lunch meeting suggested otherwise. [16] They had contacted him out of the blue to ask if he would meet them to discuss becoming their point man in the Commons, paid to use his position to push for new laws to benefit their business. [17] MPs are forbidden to act as paid advocates in parliament, which includes making any approaches to ministers, civil servants or other MPs to promote a private agenda for cash. [18] Yeo was waiting for the reporters in Mayfair’s exclusive Nobu restaurant when they arrived for the hastily arranged meeting last month. It was a busy day in parliament for the MP, who was still wrapping up a hands-free phone call as the group shook hands. [19] The morning’s committee hearing would be followed by meetings with the energy and climate change secretary, his junior minister and the department’s permanent secretary that afternoon. But that did not stop him finding time to squeeze in lunch with some potential new business clients. [20] Sipping on a cranberry and apple smoothie and tucking into a deluxe bento box, Yeo began his sales pitch. He told the reporters he could advocate for their company behind the scenes, introduce them to ministers and guide them on submitting evidence to his own committee. [21] “I’ve got a very close relationship with really all the key players in the UK government and all the departments,” he said. He cautioned that he could not “get up and make a speech” for them in the Commons because “people will say he’s saying this because of his commercial interest.”
“What I say to people in private is another matter.” [22] Yeo elaborated: “If you want to meet the right people, I can facilitate with introductions and I can use the knowledge I get from what is quite an active network of connections. So really, almost anyone you needed to get hold of in this country, I should be able to help you do that.” [23] Asked if that offer extended to government figures, he replied: “Yes.” [24] Yeo told the reporters that submitting evidence to his own committee was a good way to get noticed as a new company. [25] “The opportunity initially is to send in a memorandum saying, ‘We are producing this sort of stuff, this is why it’s good, it’s costing this much . . . that’s quite a good way of getting your stuff on the map.” [26] Asked by the reporters if he would be able to “guide us through that process”, Yeo replied: “Yes”
“I decided consciously that I would go to a job in parliament that would allow me to do some business things as well.” [28] After a stint on the environmental audit committee in which he began to accumulate financial interests in the green energy sector, Yeo secured a new role on the more influential ECCC in 2010. [29] He explained how, alongside his packed Commons schedule, he is now chairman of AFC Energy, a company developing fuel cell technologies, TMO Renewables, a biofuels firm, and Eurotunnel, which markets itself as the lowest-carbon route between the UK and mainland Europe. [30] Yeo is also a consultant to Edulink, a Dubai-based operator of private universities, which he described as “not very time-consuming but moderately lucrative”
“Pretty much.” [34] Despite already juggling four directorships with his parliamentary duties, Yeo had no qualms about the possibility of adding to his green business portfolio. [35] “I’m not overstretched at the moment,” he told them. “I could certainly do one day a month.” [36] He agreed that the offered fee of£7,000 a day was “in the right ball park”, but added: “If you’re getting value and I know you’re getting value then we’ll negotiate.”... [42] As the clock struck 2pm, Yeo leapt to his feet and told the reporters he had to dash to his next appointment. Shaking them warmly by the hand, he told them he would think further about how he could help them and would like to discuss their offer of work further. [43] “We can either have a conference call or we can meet up and have another chat or exchange an email or whatever you think really,” he said. [44] Told “We would be very keen to engage you,” he replied: “OK, terrific” before breezing out of the door into the May sunshine and vanishing down the street. [45] On May 22, the morning after the meeting, the reporters emailed to withdraw their offer of work. Six hours later, Yeo wrote back to say that he was relieved to hear that the work was no longer available because “it spares me some embarrassment”. [46] He wrote: “It was increasingly apparent to me during our talk that what you were seeking was someone to advance your interests by lobbying. This is a function which is not compatible with my position as an MP and chair of a select committee. I was going to email you later today to explain this but your email has removed the need for me to do so.” [47] Two weeks after the meeting, he spoke in parliament introducing a controversial amendment to the Energy Bill as it passed through the Commons. Last Tuesday, Yeo proposed the addition of a 2030 decarbonisation target to the bill, designed to force electricity suppliers to turn to renewable sources. [48] He said the target would make green energy technologies more appealing to investors. Critics said the target would inflate energy bills, hamper industry and cause power cuts, and the amendment was defeated. [49] Speaking in the Commons Yeo said: “I draw attention to my entry in the register especially my interests in energy industry.” [50] However, he did not specifically mention what he had earlier told the reporters — that he was about to become chairman of a fund set up to invest in the technologies his amendment was designed to promote. He had disclosed his new business interest during the meeting with the undercover reporters in which he explained that the fund was set up to invest in four renewable energy technologies — wind, solar, hydropower and biogas. [51] Members of the public would not have been able to see he was about to take this job because it does not appear on parliament’s online register of interests, last updated two weeks before he spoke. [52] Yesterday a statement from Yeo’s solicitors made clear that he had not been aware of the new job when he first tabled the amendment in February. It said he had complied fully with his obligations to declare the interest “which has been registered” when he spoke in the House last week. [53] In the statement his solicitors denied “absolutely” that he had breached the MPs’ code of conduct, or offered to do so in the meeting with the undercover reporters. [54] According to Yeo, the meeting had only been a “preliminary discussion” about what appeared to be a worthy cause, and he denied ever offering to commit to working for the reporters’ fake company for one day a month. [55] He did not accept that “a preliminary exploratory and inconclusive conversation over lunch constitutes an agreement or offer of services”
“at a lunch meeting on2 May 2013 [Mr Yeo] had to his discredit: (a) boasted that he had privately told a witness for a commercial group in which he is a paid director and shareholder what the witness should say in evidence to his Select Committee and/or (b) made a sales pitch to consultants seeking to hire him to lobby in a way which was incompatible with his position as an MP and Chairman of the ECCSC which gave reasonable grounds to suspect (alternatively to investigate) that he was willing to lobby ministers, civil servants and MPs in a way which would breach the House of Commons prohibition on paid advocacy.”
“There is no suggestion that Yeo has broken any law”
“Mr Yeo made the following statement today (Sunday) in response to the allegations in the Sunday Times. “I want to make clear that I totally reject these allegations,” he said. “The Sunday Times has chosen to quote very selectively from a recording obtained clandestinely during a conversation of nearly an hour and a half in a restaurant with two undercover reporters who purported to be representing a client from South Korea. “My lawyer requested the whole recording from which these extracts were obtained but this has not been given. “The whole recording would show the context of the conversation and demonstrate clearly that at no stage did I agree or offer to work for the fictitious company these undercover reporters claimed to be representing, still less did I commit to doing so for a day a month as the article claims. Specifically addressing the allegation that he coached a client, Mr Yeo said it was “totally untrue”. “The person concerned is John Smith, Managing Director of GB Rail Freight, a subsidiary of Group Eurotunnel SA, of which I have been a director and shareholder since 2007,” he said. “I travelled with John Smith and two other people in the cab of a freight train for three hours on May 16, five days before he appeared before my Committee. “I spoke briefly to Mr Smith about his forthcoming appearance in front of the Committee to explain that because of the business connections between us I would not take part in questioning him. I did not want him to think that my silence indicated a lack of interest in what he was saying. “I did not ‘coach’ John Smith on this or any other occasion. He is not a ‘paying client’ as the Sunday Times alleges but a business colleague. “Like many other business executives giving evidence to Select Committees he sought advice from the public affairs company retained for the purpose by GB Rail Freight.”
“… the party in default may apply for relief from sanction. He should do so as quickly as possible after he becomes aware of the default. An application, supported by evidence, should be made under Part 23 ….”
“The first stage is to identify and assess the seriousness and significance of the "failure to comply with any rule, practice direction or court order" which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate "all the circumstances of the case, so as to enable [the court] to deal justly with the application including [the need (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders.]”