England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
The Honourable Mr Justice Eady
[2003] EWCA 1649 (QB)

		Royal Courts of Justice Strand, London, WC2A 2LL
		28 January 2005

Lord Justice Rix:

1. This is an application for permission to appeal which has unfortunately taken a drawn-out form. It is made by Mr Benjamin Pell, who sued Express Newspapers and their journalist Mr Mark Watts for defamation in an action which was finally settled, almost on the eve of trial, on terms which provided Mr Pell with a payment of £125,000 plus costs. The merits of the action (the "defamation action") have therefore never been tried. Nevertheless, he seeks to appeal against an interlocutory order, made by Eady J in the week before trial, which refused him permission to re-amend his pleadings and also declined to require the defendants to make certain further disclosures which he was then seeking. In consequence Eady J also required him to pay costs to the defendants, which have been assessed at some £34,000; and Mr Pell had to swallow his own costs in respect of those applications amounting to some £26,000. By this application Mr Pell seeks to say that the judge's interlocutory order was procured by fraud and that the merits of it should be revisited on appeal. He does this, not in order to upset the settlement and so as to permit the trial to take place, nor even for the sake of reversing the rulings under the order on their merits, for those merits were merely a skirmish in the war which ended with the settlement, but simply to say that the judge's costs order was wrong and should be reversed. Of course, in order to reverse the judge's rulings on costs, Mr Pell would have to show that the judge's decision on the merits of the applications was wrong, for he does not submit that the ruling on costs should have done other than follow the outcome of the applications.
2. This application is brought on the basis of new evidence. It is said that the evidence ought to have been disclosed and was dishonestly suppressed. The evidence became available to Mr Pell in significant part within a few weeks of the judge's order, by 18 July 2003. All of the essential new material relied on became available to Mr Pell by December 2003. Mr Pell submits that had this new evidence been available to the judge, he would have decided the re-amendment and disclosure applications in his favour and made costs orders on an indemnity basis in his favour.
3. I said above that the current application for permission to appeal has taken a drawn-out form. This is in the first place because it was not filed for some considerable time after the date of the order in question. The latter was made on 1 July 2003, but Mr Pell's appellant's notice was filed only on 30 June 2004, nearly a year out of time. Mr Pell's reasons for this delay will have to be considered below. Carnwath LJ considered that the allegations made by the application raised issues which justified investigation by the court and that it should therefore be adjourned to be heard on notice. One day was assigned for the oral hearing inter partes. The day concluded before Mr Anthony Scrivener QC, who appeared on behalf of Mr Pell, had been able to conclude his submissions in reply. He was asked to put them in writing, which he did. A little later Mr Pell's solicitors wrote to the court to inform it of a recent decision. A week later Mr Pell wrote to the court in order to submit various other authorities for our attention. The civil appeals office replied to say that, if any further submissions were intended, they should be forwarded by Mr Pell's solicitors, and a dead-line was imposed. On 25 November 2004, outside the dead-line, a new file was received containing "Appellant's second submission to the court", on this occasion settled by new counsel, and twelve further authorities. I have considered all this material.

The background to the litigation: "Benjie the Binman".

4. At one stage of his life, albeit Mr Pell says that is now behind him, he achieved some notoriety as the so-called "Benjie the Binman": he would rifle rubbish sacks left outside offices, including lawyers' offices, for any interesting information, which he would then sell to the newspapers. In June 1999 Mr Pell met John Mappin who raised the idea of making a film drama (not a documentary) on Mr Pell's life. Mr Mappin involved a friend of his, Iain Jones, under the false pretence to Mr Pell that Mr Jones was a film-maker. As a result, Mr Pell paid Mr Mappin's company £77,500 to further the film project. Mr Pell was videoed as research for the project. He recounted his exploits before the camera. On one tape, disclosed in the defamation action, he described a raid on Brick Court Chambers' dustbins. Christopher Clarke QC of those chambers was counsel to the Bloody Sunday inquiry chaired by Lord Saville. Mr Pell said on camera that he had obtained in this way a list of the names of British soldiers who were due to give evidence anonymously to the inquiry. That was false braggadocio. When subsequently Mr Watts of Express Newspapers came into possession of a copy of this video tape (see below), he spoke to Mr Clarke QC, who told him that no such list had ever existed. A tape of this telephone conversation was disclosed by Express Newspapers. However, Mr Watts did not believe Mr Clarke, because of what he had heard Mr Pell say on the tape.
5. By October 2000 Mr Pell had fallen out with Mr Mappin and Mr Jones and in April 2001 he commenced proceedings against Mr Mappin and his company in deceit for the return of the £77,500 he had paid (the "film project action"). In January 2002 witness statements were exchanged in the film project action. Ms Yvonne Ridley, a journalist who had worked for the Sunday Express, provided a statement in support of Mr Mappin; as did Mr Jones. The trial was set for 11 March 2002.
6. On 6 February 2002 a call was made to Mr Watts' mobile from a number registered in the name of "Kevin James" with a billing address in Finchley Road, London, which was the registered office of a company run by Kevin Cahill, a journalist who also knew Mr Mappin and Ms Ridley. Mr Cahill's full name is Kevin James Cahill. Mr Watts returned the call at 09.50 and had a conversation with Mr Cahill for over 9 minutes (the "6 February phone-call"). Later that same day, at 18.01, Mr Cahill sent an email to Mr Jeffrey Donaldson MP (the "6 February email"). It read (with its typographical errors) as follows:

"Subject: Story re Saville…

Good of you to take the call. The story is simple. The people who made the Benjie the Binman movie say that he has documents retrieved from the bins of the MoD barristers, listing the names and addresses of the soldie[rs] due to give testimony to Saville. Benjie did not give them the documents, but showed them during filming and said what they were to camera. They only way the film makers could see to get the story out was under Parliamentary privilage, hense their approch to me…I am having the film makers send you the clip by email..I have also suggested that they let me try it with Mark Watts at the Sunday Express…Mark believes that we will get the front page if the material is authentic and we will be able to run the story as 'MP to raise etc'…Mark is one of the best reporters of his generation."

7. This email was subsequently produced by Mr Cahill annexed to his witness statement for the defendants in the defamation action, but in redacted form. The passages in italics above were covered up. This was done on the basis that it was permissible to remove references which might lead to the disclosure of journalistic sources. The 6 February phone-call appeared in Mr Watts' telephone records, which were disclosed also in redacted form: the number to which that phone-call had been made was also covered up.
8. Mr Pell now submits that it is plain from the unredacted version of this email together with the fact of the lengthy 6 February phone-call that Mr Watts obtained the story about Mr Pell and his videoed claim to have a list of the Bloody Sunday soldiers from Mr Cahill, and that Mr Cahill had obtained it from Mr Mappin and Mr Jones (the "film-makers"). Mr Pell also seeks to submit that it should be inferred from these circumstances that the film-makers were trying to get the "story" out under parliamentary privilege in order to put pressure on Mr Pell in the run-up to trial in the film project action; and that they were using Mr Cahill and Mr Watts to help them do so; and indeed that Mr Watts was dishonestly conspiring with the film-makers to promote the story for collateral and malicious ends connected with Mr Mappin's defence of Mr Pell's action against him.
9. In his witness statement for the defamation action, Mr Watts said that in late January he had heard word circulating in the journalistic community about the availability of Mr Pell's video and its contents. He decided to investigate. He said that he began his enquiries on 6 February. That day he carried out a cuttings check. He sought to find out who had made the film. He said he spoke to a confidential source whose name he had blanked out of his notepad. He said he learned of the names of Mr Mappin and Mr Jones as being involved in the film, and he inferred that this Mr Mappin was the defendant in the film project claim. He said that on that day he spoke to Mr Cahill, whom he described as a friend: and that Mr Cahill had told him to speak to Mr Donaldson (which he said he did, but only on 15 February); and that Mr Cahill had also spoken to him about Mr Mappin and Mr Jones. On 7 February he spoke to a "confidential source" and obtained a transcript of the video tape in which Mr Pell appeared. He obtained a copy of the tape itself on 8 February. It was on that day that he subsequently spoke to Mr Clarke QC. He also spoke that day to Ms Ridley and to Mr Jones and Mr Mappin. Both the latter told him that they had not seen a list of soldiers' names; although Mr Jones told him that he believed Mr Pell.
10. Also on 8 February Mr Cahill sent another email to Mr Donaldson, to tell him that a 14 minute clip would be arriving the following day for Mr Watts: the words "from the USA" were also redacted from this email when disclosed. On 13 February Mr Watts began writing his article for publication in the Sunday Express on 17 February.
11. On Saturday, 16 February Mr Pell went to synogogue in Finchley Lane, NW4. Mr Watts prepared to "doorstep" him as he left the synogogue on the subject of the forthcoming article. Mr Pell claimed in his witness statement to have seen Mr Jones and Mr Mappin outside the synogogue. Mr Watts' telephone records showed that he had made two brief calls, of 10 and 13 seconds, at 11.29, both redacted from those records (the "11.29 calls"). The first was in fact to Mr Cahill's "Kevin James" mobile number; the second to the mobile of a Mr Steve Bell, a photographer who was assisting Mr Watts that morning. Mr Pell had been very interested in these redacted numbers, for he thought that they were to Mr Mappin and/or Mr Jones, to position them in readiness outside the synogogue, and would support his case of conspiracy. He was mistaken in that suspicion as to the recipients of those calls. The redactions were made on the basis that they might reveal confidential sources, but subsequently Mr Watts revealed that the second of them had been made to his photographer; he remained uncertain, however, as to the recipient of the first call, but also unwilling to reveal it as he was still concerned it was a confidential source. It was not, he said, connected with the Pell story for it was not one of the list of all relevant numbers he had supplied to his solicitors. He said that when he tried to investigate this case subsequently, it did not connect, not even with a diversion to voicemail. He also said that the calls had been made after he had returned to his office.

The Sunday Express articles and the defamation action

12. On 17 February 2002 the Sunday Express published Mr Watts' article. It was headed: "This grubby snooper found the names of Bloody Sunday Paras in a lawyer's dustbin. Now the IRA know just who they are…" The article began: "Irish terrorists are feared to have been given a top secret list of British paratroopers who killed demonstrators during the Bloody Sunday march." In the defamation action Mr Pell was to complain inter alia that he had been libelled with the suggestion that he had sold the soldiers' names to the IRA. On the following Sunday, 24 February, the Sunday Express ran another article by Mr Watts, headed: "Dustbin snooper with names of Bloody Sunday Paras is facing MI5 probe."
13. On 11 March 2002 Mr Pell's film project action went to trial. After a five day trial Gray J gave judgment in Mr Pell's favour on 19 March. He found that Mr Mappin was liable in deceit and awarded costs against him on an indemnity basis. Mr Mappin would subsequently say that he could not afford to pay the costs, but after he was committed to prison for 4 months if he continued to refuse to answer questions and resist disclosure he managed to pay the judgment and costs in full.
14. In the meantime, the defendants, Express Newspapers and Mr Watts had made an offer of amends for the articles. The effect of this was that Mr Pell had to show, if he wished to succeed in a claim, that the defendants knew or had reason to believe that their articles were false and defamatory. On 18 July 2002 Mr Pell commenced his defamation action, alleging that Mr Watts knew that the articles were false and claiming aggravated as well as standard compensatory damages. Mr Pell's case on aggravated damages was that Mr Watts knew that the articles were false in part because he knew that the film-makers were making false allegations to put pressure ("improper pressure…to discontinue the action") on Mr Pell in the run-up to trial of the film project action; and that the film-makers had accompanied Mr Watts in his door-stepping of Mr Pell outside the synogogue. Ms Ridley was also implicated in these allegations. However, Mr Pell had not as yet alleged that Mr Watts had entered into a dishonest conspiracy with the film-makers.
15. In February 2003 disclosure produced Mr Watts' redacted telephone records and in late April 2003 exchange of witness statements produced Mr Cahill's redacted email. In his statement, Mr Cahill explained the redaction as protecting his confidential sources.
16. On 5 June draft re-amended particulars of claim were served on the defendants. It was in this amendment that Mr Pell first alleged a dishonest conspiracy between Mr Watts and the film-makers and their mutual friends, such as Ms Ridley. He did so in order to seek to establish a basis for a new claim for exemplary damages. But he also had other new allegations for the same purpose. By this time trial, which had been fixed for 7 July, was imminent.
17. On 13 June the defendants made a Part 36 offer to settle the action for £125,000 plus costs to be assessed. Mr Pell would say that his draft amendment played a part in eliciting this offer. The defendants on the other hand acknowledge that their weakness was the alleged implication that Mr Pell had sold names to the IRA.

The applications to amend and for disclosure of the redacted material

18. On 20 June 2003 Mr Pell made his applications to re-amend his particulars of claim and for disclosure of the redacted material. There were two days of submissions at the end of June and on 1 July Eady J gave his judgment dismissing the applications with costs. For the purpose of the hearing Mr Watts made a further, short statement. It was there that he said that for the purpose of preparing his first statement he had rung the two numbers to which he had made the 11.29 calls. He said he was not diverted to voicemail on the first one and thus did not learn the identity of the person he had called. The second number produced Mr Bell, whose identity for the purpose of that call had already been disclosed back in March.
19. Mr Pell, in his evidence for the applications, stated his belief that the first call was made to Mr Jones or Mr Mappin. He was seeking to make good his draft amendment alleging a dishonest conspiracy between Mr Watts and the film-makers.
20. A lengthy witness statement was made by Ms Helen Stanwell-Smith of the defendants' solicitors. In it she said that Mr Watts had confirmed to her that the number called on the first 11.29 call was not one on which he had ever called Mr Jones or anyone connected with him. As for redactions made to protect confidential sources, Miss Stanwell-Smith had a delicate path to tread and she trod it delicately. It was plain from Mr Watts' main witness statement that he had been in touch with Mr Cahill (and on 6 February at that) and with the film-makers. But he also spoke ambiguously of confidential sources and declined to say who had furnished him with the tape and its transcript. Miss Stanwell-Smith now said:

"10. In his statement, Mr Jennings [Mr Pell's solicitor] distinguishes between sources on the one hand and Mr Mappin and Mr Jones on the other. I am not at liberty to tell the court whether or not either Mr Mappin or Mr Jones is a confidential source of Mr Watts, but Mr Jennings must not assume that either Mr Mappin or Mr Jones is not a confidential source.

11. The amendments sought by the claimant…include a claim for exemplary damages on the basis of (amongst other matters) the fact that Mr Watts refuses to reveal his confidential sources, although the claimant states that the source of the Bloody Sunday tape must have been Mr Jones. I am not at liberty to comment one way or another in relation to whether the claimant is wrong in this assumption, but the claimant must not assume that Mr Jones is or is not a confidential source."

21. The judge considered first whether he would admit the draft amendment, which he characterised, no doubt accurately, and with the full benefit of those two days of argument, as an amendment to plead a claim for exemplary damages. He considered that application with care and in detail, over a judgment of 50 paragraphs. He accepted that the plea was "a very serious and a lengthy one" and also that it gave rise to "interesting and difficult questions of law". He pointed out, however, that, an offer of amends having been rejected, the issue was whether Mr Watts knew or had reason to believe that the relevant defamatory allegations were false: and that since the defamatory meaning alleged was a very serious one, he could not see in the abstract why compensatory damages should be, as Mr Pell asserted, inadequate. The judge was sceptical as to why the claim for exemplary damages could not have been pleaded before, since the earlier pleadings had already introduced an allegation of bad faith. He accepted the submission that Express Newspapers' vicarious liability for any dishonesty on the part of Mr Watts was a House of Lords point, and that it was not necessary or proportionate, on the eve of trial, to "saddle the parties with a visit to the House of Lords" when the claim for aggravated damages would suffice. He was quite satisfied that justice could be done between the parties without the need to introduce this last-minute and difficult claim, merely in the hope of adding "a bit on top". Those reasons went much broader and also much more to the judge's overall discretion in the management of the case than the submissions which this court has heard on the current application would acknowledge.
22. Having rejected leave to amend the particulars of claim (and there was no subsidiary submission that the allegation of a conspiracy with the film-makers to apply improper pressure on Mr Pell in his conduct of his film project action should be allowed even if the plea of exemplary damages should not), the judge dealt with the application for further disclosure very briefly. He said –

"I am satisfied that there are no circumstances which would justify me in going behind the latest assurances which have been given through Mr Shaw and Miss Stanwell-Smith. It seems to me that I cannot proceed on the basis that they have not conscientiously applied the appropriate principles."

23. I remark that among those principles is the statutory privilege under section 10 of the Contempt of Court Act 1981:

"No person may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose the source of information contained in a publication for which he is responsible unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime."

See also Goodwin v. United Kingdom (1996) 22 EHRR 123 (at para 39) and Ashworth Hospital Authority v. MGN Ltd [2002] 1 WLR 2033 (at para 38).

24. These are the judgments and orders of Eady J from which Mr Pell now seeks permission to appeal.
25. On 3 July 2003 Mr Pell accepted the defendants' Part 36 offer and the defamation action was at an end. He points out that in the defendants' bill of costs relating to the costs order of 1 July the following passage appears:

"The application was of critical importance. The defendants believe that the claimant's failure on this application lead to the acceptance of the payment into court (ending the dispute)."

26. Mr Pell himself believes that if he had succeeded in, instead of lost, these applications, he would have received a higher offer.

The new evidence

27. Mr Pell makes his current application on the basis of what he describes as new evidence, to the following effect. On 2 July 2003, the day after Eady J's judgments and the day before acceptance of the Part 36 offer, Mr Pell contacted No Hiding Place Ltd and the Telecommunications Investigation Unit ("TIC") to investigate details of the 11.29 calls. On the same day he was told orally, and this was confirmed in writing on 3 July, that the second call was made in the vicinity of Brent Street, NW4, ie from the area of Mr Pell's synogogue, and not from SE1, where Mr Watts' offices were. This showed that Mr Watts had made his 11.29 calls while he was still outside the synogogue. Mr Pell knew this before he accepted the Part 36 offer.
28. On 7 July 2003 Mr Pell asked Mr Donaldson for unredacted copies of Cahill's emails to him of 6 and 8 February 2002. Mr Pell obtained them on 18 July, ie within 17 days of Eady J's judgments. Mr Pell then knew that these emails referred to the film-makers. He had known since service of Mr Watts' main witness statement that Mr Watts had spoken to Mr Cahill on 6 February, inter alia about Mr Donaldson (see para 9 above); and that it was on that day that Mr Watts began his investigation. It might be said therefore that the unredacted email of 6 July 2002 was the important new information so far as this application is concerned. It is in dispute, however, how new or important this information was.
29. That Mr Pell regarded the unredacted email as being significant is confirmed by the fact that a few days after receiving it, on 24 July, Mr Pell's solicitor contacted the police "to discuss the possibility of a criminal investigation into these matters" (Mr Jennings' witness statement at para 55.6). There were meetings with the police on 14 November and 3 December. The police said they could do nothing without further evidence. In particular, they said it would be useful for Mr Pell to establish to whom Mr Watts made the first of his 11.29 calls. This was presumably because it remained Mr Pell's case in talking to the police that the call outside the synogogue was to Mr Jones or to Mr Mappin.
30. Mr Pell went back to No Hiding Place for that information. Within at most a matter of days, on 10 December, he was told, orally, what the number was, and to whom it was registered; and that the same number had been called in the 9 minute call on 6 February 2002; and that the number routinely diverts to voicemail, if it is not answered.
31. Mr Pell then had essentially all the new information on which he presents this application. The information from No Hiding Place is forensically presented as of great importance. It must in truth have come to Mr Pell as something of a disappointment. He had been expecting that it would produce a number belonging to the film-makers. In the event it produced Mr Cahill's number. Mr Pell submits that it was crucial for him to know that Mr Watts spoke to Mr Cahill for nine minutes on the morning of 6 February, the same day as the email to Mr Donaldson. But Mr Pell had long known that Mr Watts had spoken to Mr Cahill that day.
32. Even at this stage, in early December 2003, Mr Pell did not make this application. Why not? What this court has been told is that because of Mr Pell's limited funds he had to wait for a payment on account of costs in respect of the defamation action, of £125,000, which he received on 2 February 2004, before he was in a position financially to contemplate this application. On 6 February, instructions were sent to junior counsel (privilege is not waived); there was a conference on 19 February; a letter was sent to the defendants' solicitors on 4 March inviting them to consent to a variation of Eady J's order of 1 July 2003; a joint consultation with senior and junior counsel took place on 1 April 2004; there was further correspondence between the parties; a further consultation took place on 4 May; there was still further correspondence between the parties; and this application was filed on 30 June 2004. Mr Pell submits: "The timing of this application reflects the fact that Mr Pell has proceeded carefully and after due consideration, as is proper bearing in mind the subject matter."

Mr Pell's submissions

33. On behalf of Mr Pell, the following submissions have been made at one or other stage of these proceedings. Despite the settlement of the action, the costs orders made by Eady J on 1 July 2002 lie outside the settlement and can be revisited on appeal. The redactions of the telephone records and the emails have been deliberate and dishonest on the part of Mr Watts and at least reckless or grossly negligent on the part of his solicitors and in particular Ms Stanwell-Smith. Since Mr Pell does not wish to upset the settlement nor seek to relitigate the defamation action nor claim damages for Mr Watts' dishonesty, but only to reverse those costs orders, his application for permission to appeal is proportionate, and in any event his means do not permit him to proceed by the alternative method of bringing a new action based on the fraud and dishonesty which he alleges. In any event, even if there was no dishonesty and no deception of the court, and it were to be merely that inadequate disclosure was given in the matter of the redactions, that is enough to require an appeal. Part 36 offers can only proceed on the basis of proper disclosure. Public policy and the interests of justice, both in the matter of Part 36 and in defence of disclosure, as well as in policing dishonesty, make it necessary to investigate the allegations made on this application: and in any event the dishonesty and deception are manifest. As it is, the basic facts relating to the redactions have been established, after long obfuscation, and there is no longer any doubt about them, nor are they denied.
34. Mr Pell's submissions have gone through every permutation. It is said that Mr Cahill's redacted email of 6 February 2002 was the critical concealment, because the presence of the film-makers behind him was hidden. It is said that the 9 minute call to Mr Cahill of the same day was the critical concealment, because it emphasises the importance of Mr Cahill as the go-between that day. It is said that the first of the 11.29 calls was the critical call, because that had to be hidden since it was to the same number as the call of 6 February; and because Mr Watts must have been dishonest about not being diverted to voicemail – a lie he had to tell to explain why he did not know the owner of that number.
35. In the face of what is alleged to be such pervasive deception, Mr Pell through his advocates pours scorn on what is now said on behalf of the defendants: that now that the redacted number is shown to be Mr Cahill's, something previously overlooked, its redaction was probably inadvertent and in error: for Mr Cahill was never a "confidential" source. This, it is said, "transforms the whole of the [Mr Pell's] case. It changes what may have been a merely innocent non-disclosure to wilful deceit of the court". He also submits that the statutory privilege provided by section 10 of the Contempt of Court Act 1981 cannot be used for such deceitful purposes.
36. In the premises, Mr Pell asks for (inter alia) the following directions: permission to serve witness summonses on Orange and BT, and on Cahill and his company; an order for further evidence from the defendants, with permission for further evidence from Mr Pell; and directions for the cross-examination of Mr Watts and/or Mr Cahill.

Authorities

37. Of many authorities cited to emphasise, as may of course be accepted, the concern of the courts to prevent dishonesty and deliberate concealment in the litigation process from causing injustice or the danger of injustice, and in that connection to illustrate the relevance of new evidence of such dishonesty to the opening up of concluded litigation at the appeal stage, even when an appeal is prima facie out of time, the one most pressed on this court by Mr Scrivener in his oral submissions was an unreported decision of this court in Couwenbergh v. Valkova [2004] EWCA Civ 676 (27 May 2004). There permission to appeal was granted arising out of a trial relating to a disputed will. The deceased was an elderly lady. The claimant was the deceased's brother's son-in-law. The defendant was a lady who had shared the home of the deceased for many years, a close and trusted friend. In 1978 the deceased made a will leaving her estate to her brother's children and making Mr Couwenbergh her executor. In October 1990, however, a new will leaving everything to Dr Valkova was executed by the deceased and witnessed by neighbours, the Doyles. The solicitor was not happy with the engrossment and the will was executed again five days later, this time witnessed by two Italian gentlemen called Di Gregorio. That was the will admitted to probate. Mr Couwenbergh disputed that will and sought to establish the 1978 will. Letters from the Italian witnesses evidencing their role were written in 1993 and disclosed. It was accepted that the second 1990 will had been duly executed, but the deceased's testamentary capacity was in issue. The trial produced a result in favour of the second 1990 will, and costs were given against Mr Couwenbergh. An application for permission to appeal was refused. There was subsequently a police investigation into an allegation that Dr Valkova may have unlawfully contributed to the deceased's death; but the CPS decided not to prosecute. However, the police produced statements from the brothers Di Gregorio saying that neither had witnessed the second 1990 will and that the 1993 letters had not been written by them but were forged.
38. A renewed application for permission to appeal was then made by Mr Couwenbergh. This court held that there was a real prospect that the new evidence would satisfy the Ladd v. Marshall [1954] 1 WLR 1489 tests and would be admitted. But even if the new evidence was true, this court formed the provisional view that the first 1990 will, the Doyle will, would survive. Even so, it was arguable that there was a substantial injustice in the survival of the costs orders against Mr Couwenbergh. This court considered whether the proper way forward was by appeal or in a fresh action for fraud. It cited Sir Martin Nourse's review of recent authorities in Sohal v. Sohal [2002] EWCA Civ 1297 at paras 25 and 29 as follows:

"There is no jurisdictional bar to this court admitting the fresh evidence and dealing with the allegation by way of an appeal. But it should only do so if, in the words of Lord Woolf [in Wood v. Gahlings, unreported, 29 November 1996, at p. 3], the allegation of fraud 'can be clearly established' or if, in the words of Lord Phillips [in Hamilton v. Al Fayed, unreported, 21 December 2000] which come to the same thing) the fresh evidence or its effect is not 'hotly contested'. In any other case, the party who complains about the judgment should be left to bring a fresh action to set it aside…If this court takes the view that the fraud has not been clearly established, or that it is or certainly will be hotly contested on the evidence, then it must be open to it to say that the question will not be dealt with by way of appeal, but must be dealt with as the subject of a fresh action."

39. This court considered that the new Di Gregorio evidence would be hotly contested. It also considered that even if the matter proceeded by way of an appeal, the furthest that the appeal court could go in resolving the new evidence would be by ordering a new trial. So the question it posed to itself was whether there should be an appeal and (possibly) a new trial, or a fresh action and no appeal.
40. In those particular circumstances, this court in its discretion decided that an appeal was the preferable alternative (at para 45). It did so partly because a retrial would be likely to be less expensive, and to be completed more quickly, than a fresh action. The pleadings might suffice and "Much of the evidence stands". But the decisive factor was the outstanding order for costs:

"Thirdly, and to our minds most importantly, a rehearing gives the trial judge the greatest flexibility to do justice between these parties. As we have indicated, the real question may turn out to be what should happen with regard to the order for the costs of the first trial. On a rehearing the judge will have full power to make such order for those costs as is just. He may discharge the order altogether, or he may order Mr Couwenbergh to pay part of the costs. The trial judge in a fresh action will have no such broad discretion."

Discussion and conclusion

41. Although the facts relating to the redacted information in itself are now plain or may reasonably be assumed to be so, the circumstances and motivations which led to the redactions are wholly in dispute. Mr Pell submits that the redactions were dishonestly concealed, motivated by a desire to avoid the emergence of dishonest conduct in the preparation of the disputed articles for publication. The defendants reject the underlying accusation of dishonesty, and point out that Mr Pell never got his conspiracy theory onto the pleadings: there was no obligation of disclosure in connection with a very late amendment for which Mr Pell never got leave. The defendants also reject the allegation of dishonest nondisclosure.
42. It is impossible for this court on a permission to appeal application in the circumstances of this case to form even a provisional view as to whether there is a real possibility of Mr Pell making good his case of deliberate and dishonest concealment. The new information may be plain, but it says nothing at all about the allegations of underlying dishonesty or dishonesty in concealment. However, the redactions all appear on documents which were disclosed, and the content of those redactions can be evaluated against their background. In this context, the redacted material turns out to be exactly the sort of thing that one might have expected it would be: the surrounding circumstances always suggested that the film-makers had to be involved in one way or another in the emergence of the tape and its transcript; Mr Cahill was clearly involved from the outset (see his email to Mr Donaldson of 6 February 2002) and he, Mr Cahill, was obviously getting his information from other sources. Mr Watts was plainly in contact with Mr Cahill from at least that same day and by telephone: Mr Watts said so, although he did not identify the 9 minute call as having been the telephone call in question. In the circumstances there is nothing sinister in the 9 minute call to Mr Cahill. The film-makers, Mr Mappin and Mr Jones, were known and identified and Mr Watts was in contact with them – he said so. There is no surprise nor anything sinister in Mr Watts calling Mr Cahill outside the synogogue. Mr Pell, on the other hand, was expecting that call to have been made to one of the film-makers. Mr Pell submits that Mr Watts is lying in not recognising Mr Cahill's number as his number; lying in saying that he was not diverted to voicemail, for otherwise he would have known that number to be Mr Cahill's; and he seeks to involve Ms Stanwell-Smith in that deception because he asks why she did not check that number in the same way as Mr Bell's number was checked and revealed. On the other hand, there would be no reason for Mr Watts deliberately to conceal Mr Cahill's number; and the involvement of the defendants' legal advisers in the process of disclosure and redaction is not easily or lightly to be thought to be consistent with dishonest motives.
43. In these circumstances what seems to me to be of the highest significance is that the overall litigation between Mr Pell and the defendants was settled, without trial, by Mr Pell's acceptance of their Part 36 offer. The underlying allegations, pleaded or unpleaded, were never examined. There was some discussion in the course of oral submissions as to the formal effect of a Part 36 settlement. I assume for the purposes of this judgment, and in favour of Mr Pell's submissions, that the Part 36 process is not a formal contract as distinct from a matter of procedure, even if it appears to be analogous to one, and that the parties' settlement is in no way a formal bar to Mr Pell challenging the judge's order for costs. I also assume for these purposes that, pursuant to Part 36.15(5)(b), the stay imposed under Part 36.15(2)(a) will not affect the power of the court to "deal with any question of costs…relating to the proceedings". Nevertheless, what Mr Pell's argument involves is that he is seeking by way of an appeal to reopen the fundamental merits of an action that has been settled. He wishes to prove that the judge should have allowed an amendment to plead a case of dishonesty, and to have ordered further disclosure in aid of that case, on the ground that he can prove that case of dishonesty, and can further prove a collateral case of dishonesty in the process of disclosure which is itself premised on, because motivated by, that underlying dishonesty in the fundamental merits of the action.
44. However, what is particularly extraordinary about this case is that Mr Pell's application involves this revisiting of the entrails of a settled action not in order to set aside the settlement as having been procured by fraud, but merely to reverse an interlocutory costs order. The incongruity of this aspiration is underlined by Mr Pell's own submissions. On the one hand he seeks to emphasise the importance of the applications heard by Eady J as vitally affecting the action and its settlement: he says that if the judge had decided in his favour he would have been able to achieve a much better settlement. On the other hand, he affirms that he does not wish to challenge or set aside the settlement: he wishes to retain its fruits, and he does not seek any damages for deceit.
45. In my judgment, however, what Mr Pell is seeking to do is wholly disproportionate and contrary to the interests of justice. If interlocutory orders could be challenged by way of appeal on the ground of an alleged deceit, and even, as Mr Scrivener submits, in the absence of deceit and purely on the ground of error, and if this could be done even though the result of trial or of settlement was to be left undisturbed and even though the fundamentals of the dispute, or a large part of them, would have to be relitigated in the appeal process and in all probability again at a rehearing of some kind, and all for the sake of the incidence of costs under such interlocutory orders; then the importance of the finality of judgments and settlements would have been gravely undermined. The process of appeal would have been subverted.
46. In any event, I am unable to say that Mr Pell has persuaded me that he has shown a real prospect of success on appeal. As for the judge's decision not to allow the re-amendment to plead a case in exemplary damages, that decision, which was ultimately in the judge's discretion as a matter of his case management on the eve of trial, was taken by him on a far wider basis than Mr Pell has sought even to dispute. The allegation of a dishonest conspiracy with respect to the film project action, which assumes on this application so dominant a role, was but part of a broader canvas before Eady J. As for the judge's decision on disclosure, it largely followed on his previous decision.
47. Of course, if Mr Pell is right to say that the court, as well as he, have been deceived by deliberate concealment in the process of disclosure in aid of the dishonest suppression of a conspiracy to put improper pressure on Mr Pell in his film project action, then the public as well as his own interests would be involved in the vindication of the truth. It may be that those interests ought to be pursued and vindicated, even though the film project action continued to proceed, as it did, towards Mr Pell's complete victory, and even though the defamation action has been settled and Mr Pell himself has no desire to set aside that settlement. But there is a very large question-mark over whether Mr Pell is right in his allegation of serious dishonesty; and it is not as though he is without an alternative remedy. If he considers that he has been defrauded by Mr Watts and/or Express Newspapers (and it is not clear to me that any dishonesty by Mr Watts in this respect would affect Express Newspapers), then he is able to start a fresh action on the ground of such fraud. As Lord Buckmaster said in Jonesco v. Beard [1930] AC 298 at 300 –

"It has long been the settled practice of the Court that the proper method of impeaching a completed judgment on the ground of fraud is by an action in which, as in any other action based on fraud, the particulars of the fraud must be given and that allegation established by the strict proof such a charge requires. In Flower v Lloyd (1877) 6 Ch D 297, at p 302…James LJ states that "you cannot go to your adversary and say, 'You have obtained the judgment by fraud and I will have a rehearing, of the whole case' until that fraud is established"."

48. That statement has recently been reaffirmed by the House of Lords in Kuwait Airways Corporation v. Iraqi Airways Company and Republic of Iraq (No 2) [2001] 1 WLR 429. Even if that practice were to be regarded as less settled, so that it is a matter of discretion on the particular facts of each case whether such an allegation of fraud should proceed by way of appeal or by way of fresh action, nevertheless it is in my judgment clear that in this case Mr Pell should be required to proceed by way of fresh action and not by way of appeal. First, the alleged fraud is hotly disputed. Secondly, in a complex case the allegation has yet to be clearly and properly set out in the way in which only pleadings can clarify. Thirdly, the appeal process is an unsatisfactory basis for the analysis of an untried allegation of fraud. Fourthly, because of the settlement the underlying action never reached the exposition of a trial: and that makes the prospect of adapting the process of appeal to the review of Mr Pell's case all the harder. Fifthly, it is clearly unsatisfactory for this court to hear on appeal, merely for the sake of an interlocutory order of costs, submissions which go to the fundamentals of a settled action whose settlement itself is not to be disturbed.
49. In this connection Couwenbergh was quite a different case. Although the incidence of costs there drove this court's solution of the proper process, the costs concerned were the costs of fighting an action down to the end of trial where the new evidence, from the critical witnesses, was fundamentally inconsistent with the trial result. If that evidence was accepted, the trial result could not stand. That might mean that the costs orders could not stand, in whole or in part. Whereas, if Mr Couwenbergh had to go to a fresh action, the existence of the first 1990 will, the Doyle will, might well prevent Mr Couwenbergh scoring any success whatsoever. The idiosyncracies of that case in no way guide the solution of this application.
50. For all these reasons, I would not give permission to appeal in this case.
51. So far, however, I have not considered two further critical questions. Although one goes to the merits of this application and the other is a procedural matter of delay, they are interconnected and I propose to deal with them both together. One of the Ladd v. Marshall tests for the admission of new evidence is whether the evidence could with the exercise of due diligence have been made available for trial. That is the question which goes to the merits of the application. The other question is whether Mr Pell has provided a good explanation for his delay of very nearly a year in bringing this application.
52. It would seem that Mr Pell was always in a position to obtain the redacted material. He received the emails from Mr Donaldson within 15 days of asking. It is suggested, albeit without evidence, that Mr Donaldson was willing to provide the emails only after he heard that the defamation action had been settled. This, however, has not been established. As for the telephone information, Mr Pell always seems to have been in a position to obtain that, and to do so within days of asking. That is an additional reason for thinking that there is no real prospect of a successful appeal.
53. As for the year's delay, Mr Pell in essence says that he could only proceed when he had received the fruits of his action from the defendants; and that the remaining delay was caused by taking legal advice and correspondence with the defendants. I would not consider that a satisfactory explanation, however. It suggests that Mr Pell wanted to use the fruits of his settlement to raise an appeal which sought to relitigate some at least of the essential complaints of the settled action. Nor am I satisfied that Mr Pell, who also had the proceeds of his other action, and was assured of the proceeds of his settlement, was unable to proceed timeously. In any event, if there was delay caused by lack of funds, it was necessary to proceed all the faster thereafter: a fortiori in a case which is put forward as one of manifest deception.
54. For these reasons I do not consider that time should be extended to permit this application to be made. If, however, I had considered that there was such a case of prima facie fraud as should proceed to appeal, the question of time may well have had to be regarded differently. As it is, I have thought it right to consider the merits of the application separately from the question of time. In my judgment, this application should be refused on both grounds.

Lord Justice Chadwick:

55. I agree.