ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(SIR CHARLES GRAY)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
LORD JUSTICE LEVESON
- and -
PUREWAL & ANR
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Jonathan Crystal (instructed by Blacks Solicitors) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Leveson:
"The Claimant is required to admit that the core issues, problems and troubles involving and attaching to the Claimant's attendance at the Oldbury Gudwara, on those occasions referred to in the articles complained of all relate to and eminate from the religious/doctrinal dispute, involving the successorship, authority and spiritual status within Sikhism of the holy man in India who refers to himself as "His Holiness Saint Baba Jeet Singh Ji Maharaj", for which the claimant is a leading proponent of, supporter and promoter. The Claimant's disputed advancement of "His Holiness" at Oldbury is the root cause of all the "troubles" complained of in all the articles."
For my part, this notice contains facts, assertions and conclusions, and it is not in the least surprising that no such admission was made. On the other hand, in a letter dated 22 July 2010, the newspaper made the position clear in these terms:
"You are of course aware of the costs implications of your refusal to admit should the trial judge make a finding (which he can do irrespective of what the parties have pleaded) that issues at the core of this case are religious and hence non-justiciable.
If the trial is stayed/aborted as a consequence of your refusal to admit this notice, then we put that down entirely to your conduct in refusing to admit this Notice to Admit, and we shall claim our costs for the entire action up to the point it be stayed and/or dismissed even if at trial."
The reason for that letter was a response to the notice to admit also dated 22 July, but antecedent to the letter to which I have just referred, emanating from Mr Shergill's solicitors, which specifically challenged the suggestion that justiciability had been determined by Eady J. The letter reads:
"We also do not agree that the Decision of Learned Justice Eady in the case of His Holiness Sant Baba Jeet Singh Ji Maharaj v Eastern Media Group and Another has any relevance or bearing on the issues in this case.
We respectfully refer you to our pleaded case and the defamatory meanings which with respect have nothing to do with doctrinal issues, and thus the Decision of Justice Eady is irrelevant, as is the status of His Holiness Saint Baba Jeet Singh Ji Maharaj on the facts of this case ...
If our position is not accepted, then we openly invite you to issue an Application to the court.
We place you on notice that your Application will be resisted with indemnity costs."
"The point that can be made, and is made, on behalf of the defendants is that they did win the application which I have been dealing with. That seems to me to be of marginal consideration. What matters in the context of the present case far more in my view is whether the application for a stay should have been made sooner. As to that I am quite sure it should have been. I am not being critical of anyone individually, I simply do not know where the blame lies, but the simple fact to my way of thinking is that any application for a stay must be made as soon as the party seeking the stay must be made as soon as the party seeking the stay becomes aware of the facts which would warrant an application being made."
To the submission he was unrealistic to suppose that the newspaper could or should have made their application for a stay only after receipt of the statements of the witnesses, Sir Charles concluded that anyone knowing the broad facts of this case would have been reasonably confident that when an application for a stay was made, it would have a distinct chance of success. He did not consider the statement in the case as material to issue of costs. In those circumstances, having concluded that an application to stay should have been made no later than 17 June, that is to say one month after the judgment of Eady J, he ordered Mr Shergill to pay the costs prior to 17 June, together with the costs of an application to stay, but ordered the newspaper to pay the costs following 17 June, save for the costs for the application to stay.
"(a) conduct before as well as during the proceedings ...
(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
(c) the manner in which a party has pursued or defended his case, or a particular allegation or issue ... and in particular the extent to which the parties followed ..."
Thus Mr Crystal argues that, having adopted a position at the pretrial review of being "eager and prepared" for a contest, and having embarked on a trial wanting to fight the libel claim, the effect of the decision to seek a stay only as late as the first day of the trial was that substantial costs had been incurred by Mr Shergill and wasted for they would not have been incurred had the application been made earlier, although it is worth underlining that Mr Shergill by his solicitors adopted an extremely robust response to the suggestion of lack of justiciability and threatened his own indemnity costs application. Furthermore, as early as 8 February 2010, in the Hardeep Singh case,  EWHC 555 (QB), Mr Crystal was making the point to Shaw J that at the heart of that action and indeed he mentioned two others, one of which must be the present litigation, was the status of the claimant in that case as the third holy saint.
Lord Justice Richards:
Lord Justice Maurice Kay:
Order: Appeal allowed.