England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice
		31st July 2002

1. MR. JUSTICE EADY: This libel action concerns a letter sent by the first defendant on 12th January 2000 and a most unfortunate dispute between eminent clinicians engaged in research at St. Bartholomew's Hospital. It is necessary to identify the parties before going any further.
2. The claimant is B, a doctor of medicine with expertise in skin cancer, particularly the genetic epidemiology of melanoma. Since February 1996 she has been employed by the third defendant, the Queen Mary and Westfield College as a clinical senior lecturer in the Centre for Cutaneous Research and the Department of Dermatology at St. Bartholomew's and Royal London School of Medicine and Dentistry. She has also, since February 1996, held an honorary consultant contract with the Royal Hospitals NHS Trust, which is subject to her continuing employment with QMW. She is an honorary consultant dermatologist at Guy's and St. Thomas's Trust, London Dermatology and Twin Research and Genetic Epidemiology Unit. She is a Fellow of the Royal College of Physicians and a member of the British Association of Cancer Research and the British Association of Dermatologists, amongst other august medical and scientific bodies.
3. The first defendant is Professor N, who is a Professor of Haematology, and is and was at all material times employed by QMW as Head of Dr. B's Division of Oncology in the School. He also is and was at the material time employed by the fourth defendant, which is the Bart's and London NHS Trust, as Director of Research and Development at the Royal Hospitals NHS Trust Research and Development Office, and holds an honorary consultant contract with the Trust.
4. The second defendant is Professor Irene L. She is Professor of Cellular and Molecular Medicine and Assistant Warden for Research in the school.
5. The letter in question was sent by the first defendant to at least three people. Those are identified in the particulars of claim at paragraph 8. The letter was published to Mr. Ray Pett, Chief Executive of the Royal Hospitals NHS Trust, Duncan Empey, Medical Director of the Royal Hospitals NHS Trust, Professor McNeish, Warden of the school, and also to Anne Maclntyre, the Trust's Director of Human Resources, and CB, Director of Personnel at QMW, on each of whose department's personnel databases the letter is said to have been recorded.
6. It is also Dr. B's case that this would have resulted in the words complained of being continuously published to any and all persons looking at Dr. B's personnel records for as long as the letter remained on the database.
7. Dr. B will also allege that the letter, or the words complained of in it, were also published to Professor S, Chairman of the Ethics Committee, and to members of the Ethics Committee at about the same time. It may be that she will rely upon other publications in due course.
8. It is not necessary for me to set out the terms of the letter complained of in this judgment. However, the natural and ordinary or inferential meanings of the words complained of are pleaded at paragraph 9 of the particulars of claim.
9. They are as follows: (1) that Dr. B deliberately and dishonestly misled the Ethics Committee, QMW and the Trust by withholding from them the true fact that she intended to transfer patient DNA to a commercial company, Gemini, in which she and her husband have a personal financial interest; (2) that she took DNA samples from patients and passed them to Gemini without the patients' consent; (3) that she dishonestly concealed the nature and extent of her relationship with Gemini at the time that QMW entered into an agreement with the company in January 1998; (4) that she is thereby guilty of a most serious breach of ethical standards and gross dereliction of her duty as a doctor.
10. There are defences pleaded on behalf of the various defendants, including, in particular, as one might expect, a defence of qualified privilege, but also a defence of justification. There are replies alleging malice in some detail.
11. There is now before me an application by the second defendant which is in the following terms. She is seeking an order that the claimant's claim against her, to the effect that she published the words complained of, should be struck out pursuant to CPR 3.1(2) (k); and/or 3.4(2) (a) and/or 3.4(2)(b); and the claimant's case against the second defendant should, accordingly, be dismissed; and/or that summary judgment be given against the claimant in respect of her claim against the second defendant pursuant to CPR 24.2 and that the second defendant should, consequentially, have her costs of the application.
12. The grounds of the application are that the claimant's statements of case disclose no reasonable grounds for alleging that the second defendant published the words complained of; and/or the claimant has no real prospect of succeeding in proving publication by the second defendant.
13. There is an alternative application, namely that the second defendant applies for an order that the question whether the second defendant published the words complained of be tried as a preliminary issue in advance of the trial of this action pursuant to CPR 3.1 and that directions be given for the trial of that preliminary issue. Again, there is a claim for costs consequential upon any such order being made.
14. The grounds for that alternative application are that trying the question of the second defendant's responsibility for publication as a preliminary issue would be likely, it is submitted, to save time and/or costs.
15. I must now direct my attention to what is alleged by way of pleading and evidence towards establishing publication of the letter by Prof. L. A good deal of background is set out which, to a considerable extent, overlaps with the allegations of malice. This is because the claimant is alleging that the second defendant was out to do her down and would have been glad to take the opportunity to encourage or participate in any steps which would damage her reputation. That, of course, goes only to a predisposition. Whether she in fact did participate in publication is another question.
16. There are a number of conversations, documents and incidents spreading over a number of months towards the end of 1999 as to which there is room for conflicting evidence and interpretation. Unless, therefore, this can be ruled out as irrelevant to the issue of publication as pleaded against the second defendant, it does not sound promising territory for the exercise of a summary jurisdiction.
17. The law in relation to applications of this kind, both generally and for jury cases specifically, is reasonably clear in the light of a number of recent Court of Appeal authorities. I must have regard, in particular, to Alexander v. Arts Council of Wales [2001] 1 WLR 1840 and Wallace v. Valentine [2002] EWCA Civ 1034.
18. First, it seems that I should address the primary facts relied on by the claimant for establishing the second defendant's responsibility for the publication of the 12th January letter. The burden is upon the claimant to establish those facts at trial. At this stage, I should make all assumptions in favour of the claimant so far as pleaded facts are concerned.
19. Again, in so far as evidence has been introduced for the purpose of the present application, I should assume that those facts will be established, save in so far as it can be demonstrated on written evidence that any particular factual allegation is indisputably false.
20. The next question is whether, on the facts assumed, a properly directed jury could draw the inference for which the claimant contends. In this case, of course, the inference is that the second defendant was, in some sense, a participant in the publication of the letter. I should only rule out the case against the second defendant if I am satisfied that a jury would be perverse to draw that inference.
21. I must focus on the claimant's pleaded case in the first instance. That is all I am permitted to do for the purposes of the strike-out application. If I rule against the plea, then that would be the end of the matter.
22. As to the part 24 application, however, I can have regard also to evidence for determining whether the claimant's case has no realistic prospect of success.
23. In this case, it so happens that the second defendant has chosen to introduce evidence herself. That would be relevant, I apprehend, either for demonstrating that one or more of the primary facts cannot be established in the Galbraith sense or to show that an inference which a jury could draw on the claimant's facts cannot properly be drawn in the light of the defendant's additional evidence. In other words, it puts such a different complexion on the primary facts that a jury would, in the light of it, be perverse actually to draw it.
24. If the defendant's case is so clear that it cannot be disputed, there would be nothing left for a jury to determine. If, however, there is room for legitimate argument, either on any of the primary facts or as to the feasibility of the inference being drawn, then a judge should not prevent the claimant having the issue or issues resolved by a jury. I should not conduct a mini trial or attempt to decide the factual dispute on first appearances when there is the possibility that cross-examination might undermine the case that the second defendant is putting forward.
25. I must now approach it in stages. Assuming the facts to be as the claimant pleads them, could a jury conclude that the second defendant was a party to publication of that document without its decision being categorised as perverse? To participate in a publication in such a way as to be liable in accordance with the law of defamation is not, I should emphasise, to be equated with being a source of the information contained within the relevant document. There are various acts that can give rise to legal responsibility, for example, encouraging the primary author, supplying him with information intending or knowing that it will be re-published, or, if one is in a position to do so, instructing or authorising him to publish it.
26. One of the criticisms of the claimant's pleading here, advanced by Ms. Marzec on the second defendant's behalf, is that it has not been made clear which of these recognised categories is said to apply. It has been put differently at various stages; an indicator, Ms. Marzec would suggest, that the claimant's lawyers are speculating on a creative basis rather than founding their case on solid evidence.
27. Ms. Marzec draws a very clear distinction between saying, on the one hand, that her client wanted the claimant out of her department, as to which she was by no means reticent and, on the other, that therefore she must be behind every adverse comment about her.
28. The claimant, in her witness statement, recognises that she does not have what she describes as a "smoking gun", but argues that there are a number of pointers which strongly suggest that the author of 12th January letter. Prof. N, would have had input from the second defendant in the sense of participation or encouragement.
29. The claimant says, for example, that the letter contains information about the second defendant's dermatology department which Prof. N would not have known about without its being supplied by someone with direct knowledge of what was going on there. It is thus, she argues, a reasonable inference that Prof. L supplied that information with a view to its onward publication for the purpose of facilitating the claimant's departure.
30. Without more, it seems to me that it would be inappropriate for a judge to close that issue off because a jury might draw the inference in the light of all the information before them at trial. It is perhaps because she recognises this that Ms. Marzec has introduced the additional material to show that when all the facts are known, rather than only an incomplete story, it will become apparent that no reasonable jury could draw the inference after all. That is perhaps what lies at the heart of this application. Has she introduced enough in the form of incontrovertible factual material to show that the inference contended for is simply untenable - that, however many disputed facts one assumes in the claimant's favour, the inference cannot be drawn without perversity?
31. Ms. Marzec has laid all or most of her cards on the table and invites me to say that there is no realistic prospect of the claimant overcoming what her witnesses have said about the circumstances in which the letter came to be written. Her case depends, in part, on presenting her witnesses as so eminently respectable that whatever they say on the subject could not be rejected or even doubted by twelve jurors properly directed.
32. In particular, Prof. N says that Prof. L played no part in composing the letter or in encouraging its publication or even in supplying the information contained within it; nor could she have authorised or instructed him to send it because, contrary to the claimant's evidence, she was not in a position to do so, given the structure of line management in operation. Moreover, Prof. L has given evidence to the same effect and has set out at some length the very limited communication that she had with Prof. N prior to the letter's despatch.
33. There is other evidence also, but I do not think it necessary to expound it for the purposes of this ruling.
34. Ms. Marzec has advanced a very persuasive case. It seems to me, on the material I have, unlikely that anything could be brought home against Prof. L to fix her with responsibility, direct or indirect, for the communication of the words alleged to be defamatory. Since she and Prof. N are distinguished and respected figures in the world of medicine, it also seems unlikely that a jury would conclude that they were willing to enter into a conspiracy and to lie about it later in court.
35. It is, therefore, very tempting to conclude that the relevant tests have been passed for part 24 purposes and to allow Prof. L to withdraw gracefully from this litigation.
36. The question I must next address, therefore, is whether I can now be confident that all cards are indeed on the table or whether it is yet possible to say that there is or may be more to it than meets the eye. That was the thrust of Mrs. Page's submissions. She argues that there are telltales in the documents which suggest that actually the first and second defendants have not presented the court with a complete picture and that, accordingly, however eminent they may be, the claimant should not be shut out from a jury's verdict. Unless their evidence is truly indisputable, I should be stepping over the boundary and conducting impermissibly a mini trial of the residual areas of dispute and thus be pre-empting the role of a jury.
37. After all, it may be said that the claimant is also a respectable and respected professional with a not inconsiderable record of research into skin cancer.
38. Furthermore, recent history shows that eminence in one's field is not necessarily a guarantee of telling the truth, the whole truth and nothing but the truth; nor should it be a talisman for bypassing the scrutiny of twelve ordinary citizens.
39. I must therefore turn my attention to those telltales to which Miss Page has drawn my attention to see whether they can be disposed of on an a priori basis, or on documents, without leaving any scope for oral evidence.
40. She focused upon what has been presented as lack of opportunity. Prof. L has deposed to the fact that she did not discuss the claimant to any significant extent with Prof. N. Prof. N's evidence is consistent, and he places emphasis on the fact that the ethical matters raised in the letter of 12th January came to his attention not from Prof. L but rather through the exchange of e-mails on the subject forwarded to him by the claimant herself.
41. Miss Page points to the second defendant's witness statement in which she says that she had not discussed the claimant's complaint about her with Prof. N and that she had been guarded about what she said to anyone about the claimant and, in particular, to Prof. N. This refers to a complaint made under the hospital's grievance procedure some months before the letter saw the light of day.
42. Prof. L knew that Prof. N was to be the adjudicator on the claimant's complaint. It would hardly, therefore, be appropriate to undermine his independence by unilateral representations. None the less, Miss Page suggests that Prof. L's statements "are, at their lowest, grossly misleading". That is because she had sent a letter of 20th September 1999, which was six pages long and, on one interpretation, might be thought an attempt on her part to pre-empt the grievance procedure which she must have realized was imminent.
43. It is true that, at paragraph 6 of her witness statement, the second defendant says that she became guarded after the grievance procedure had been invoked against her, which was not until 28th September. Yet I must also bear in mind that the claimant had, on 20th September, informed the second defendant of her intention to invoke the college's grievance procedure. She had also expressed her intention in writing on 14th September.
44. I will not set out the second defendant's letter to Prof. N of 20th September in this judgment, not least because I am not conducting a mini trial. It does conclude with the question:

"Is her [i.e. Dr. B's] unreasonable behaviour justification for any official procedure?"

45. Miss Page asks that, in the light of the background, I should not proceed on an assumption in the second defendant's favour of her saintliness and unqualified veracity. Miss Page also suggests that Prof. N himself was somewhat coy in telling the claimant that he had only briefly discussed her grievance prior to his meeting with her on 29th September. This was despite his having received the second defendant's letter of 20th September.
46. Ms. Marzec points out, however, that the letter had been marked "strictly private and confidential" and that he may well not have thought it appropriate to pass on its contents. On the other hand, the undercover nature of the communications passing between the second defendant and the man who was supposed to be adjudicating in the first instance upon her grievance would not inspire confidence on the claimant's part in his independence, or be likely to encourage confidence that they had maintained an appropriately arms-length relationship so far as her future was concerned.
47. Miss Page referred me to the conclusions of the independent committee which heard the appeal from Prof. N's dismissal of the claimant's grievance. Those were dated 27th July 2000 and contained some criticisms both of the first defendant and the second defendant. It is introduced by identifying one of its purposes as being "to interpret disputed accounts of events".
48. The committee held that Dr. B's complaints about how Prof. L handled concerns about teaching were substantiated and also that she had acted inappropriately as regards discussions she had held with colleagues on 3rd September 1999 and with Dr. B on 3rd December. Prof. N too was found to have made errors of judgment in handling and investigating the grievance and to have had a conflict of interest. They went on to conclude that various individual grievances had a "cumulative intimidatory effect", although sometimes Dr. B had herself couched e-mails in "rather intemperate language".
49. The central criticisms made of Prof. L concerned matters of poor communication, but it was also said in relation to discussions with colleagues on 3rd September about matters which Dr. B still viewed as confidential that Prof. L's action could be viewed as "victimisation".
50. One of the things mentioned was that she had asked Dr. C if he had any concerns about Dr. B's clinical work and, if so, to put them in writing to Prof. N. It is hardly surprising that Dr. B was suspicious that Prof. L might again have resorted to this approach of using Prof. N to damage her a few months later in the run up to his letter of 12th January 2000.
51. It is not surprising either to find some of this background acrimony surfacing in a plea of malice. What is less usual is to find it prayed in aid to establish a role in publication. Ms. Marzec has emphasised that malice is one thing, but proof of a state of mind and, in particular, a desire to be shot of Dr. B does not demonstrate that Prof. L had anything to do with publishing Prof. N's letter.
52. That is right, of course, but Miss Page attaches particular significance, I believe, to Prof. L's inclination to secret communication with Prof. N behind the claimant's back and to her perception of Prof. N, at least on 3rd September, as a suitable channel through which to focus any allegations adverse to Dr. B. The committee "noted with concern" the fact that Prof. L had written to Prof. N on 20th September in the terms she did.
53. Coming closer in time to the publication of 12th January letter, there were two events in December 1999 which the committee criticised. There was the fact that she asked Dr. B to resign in the presence of a witness, Dr. P, despite the fact that Prof. N was still supposed to be dealing with the grievance. Further, on 14th December, she told CB of Personnel that she felt that Dr. B's removal was the only option.
54. Miss Page suggests that there appears to have been an unexplained change of heart on the part of Prof. N between 10th and 13th December. She submits that a jury could draw the inference, in effect, that he had been "got at" by Prof. L during that period as part of what seems to have become something of a campaign on her part to get rid of Dr. B. The committee, at paragraph 30 of their report, refer to this and express the view that the reasons for this change on Prof. N's part were "unclear".
55. For a jury to find any such cooperation between the first and the second defendant, which they both deny, would involve finding them to have been dishonest in their evidence. Ms. Marzec submits that this really would be an inconceivable outcome. It may, indeed, be unlikely -- it would be surprising -- but I do not believe that I could form a definitive view of what happened, or as to whether there has been economy with the truth on the part of either of these defendants, without conducting a mini trial. I cannot say that no jury could disbelieve their accounts in whole or in part. It may be unlikely, but that is not the test. I have to apply the Galbraith test at this stage.
56. Much else was debated before me, almost as though I were conducting, dare I say it, a mini trial. If I were to rehearse those arguments and express a view on their merits, I should, I believe, be crossing over into that impermissible territory. Despite Ms. Marzec's cogent and sustained argument, I am just persuaded that this dispute over publication is properly to be left to a jury. I should say that I do not, in the light of all the circumstances, regard the alternative application for a preliminary issue as one that would be likely to save costs or time or otherwise to be an efficient exercise of the court's case management powers.
57. SS PAGE: In that case, my Lord, I seek an order dismissing the second defendant's application, and I also seek an order for costs, or summary assessment of costs. The schedules have been exchanged all round. No doubt your Lordship would want to deal with the issue of costs before we look at the schedules.
58. JUSTICE EADY: Ms. Marzec, the applications must be dismissed. Do you have anything to say on the principle of costs?
59. MARZEC: My Lord, yes, I do. First of all, and your Lordship might want to deal with this as a preliminary issue, last Wednesday, I raised the matter of a conditional order which your Lordship has jurisdiction to make. In particular, I submitted that it was appropriate to make a conditional order when your Lordship found that the claimant's case, though not bound to fail, was unlikely to fail at trial, which is clearly the effect of your Lordship's judgment today.
60. In those circumstances, I would press the application for a conditional order. We have managed to give you a rough and ready calculation of what the second defendant's ultimate costs liability would be. We would ask that the claimant pays into court, if not all, some proportion of that in order to secure the costs at the end of the day, given that it is highly likely, we say, that the claimant will be bearing those costs.
61. MR. JUSTICE EADY: Just give me the global figure, would you?
62. MS. MARZEC: The global figure that we have is £285,000. That is the all-in figure from the issue of the proceedings right up to the end of the two-week trial. That is for a leader and a junior counsel for a two-week trial for a trial in early 2003. I do have some breakdown of that figure.
63. MR. JUSTICE EADY: Do not worry about that for the moment. Let me hear Miss Page on that point.
64. MISS PAGE: My Lord, having found that it is proper that it should be left to the jury, what I submit the court should not plainly do is try and put a financial barrier in the way of the claimant pursuing it. The circumstances in which the court might contemplate making an order of that kind is where there is a history of litigation that fails or history of applications that are misconceived, where it was thought, "This is the sort of case where one might actually discourage a continuing pattern of misusing litigation, but we cannot say that this is necessarily misuse on the part of a particular party."
65. The other possible circumstance where one might imagine the court invoking it would be where the party against whom the claim was made was a party who had enormous financial problems themselves. In this case, this is a financially-supported party, Prof. L, whereas my client is not financially supported because the medical unions now very rarely support libel proceedings.
66. She is having to do this with her own resources. The idea where she is entitled to go to the jury and has raised an issue, and raised an issue on a contest that took a whole day before your Lordship, on evidence, that she should then be told, "You can only do it if you pay a sum of money," is, I would submit, quite unjust and in breach of her rights to take the matter to court.
67. MARZEC: My Lord, these were arguments that Miss Page raised last week. As I understood it, and your Lordship asked Miss Page to take instructions on whether or not an order that her client pay money into court will in fact act as a bar to bringing these proceedings, Miss Page has put forward the possibility that it may act as a bar but no more than that. There has been a week's time in which proper instructions could have been taken on this subject.
68. JUSTICE EADY: I do not remember that being discussed specifically.
69. MARZEC: It had been raised in perhaps rather oblique terms. My Lord, it certainly has not been submitted to your Lordship that this will in any way prevent the claimant from pursuing proceedings. If and in so far as it acts as some disincentive to continue with the proceedings, that may be no bad thing given the unlikelihood of the claimant succeeding ultimately at trial.
70. MISS PAGE: Perhaps I could comment on this question of figures. The problem with figures is that when individuals do bring libel actions, the other side are also frightfully keen to know how far they can press them and what their financial resources are in order to use that information as a pressure point subsequently to see whether they can drive the private-paying party out of the litigation.
71. For that reason, we have not gone into the position of financial resources. We had no idea that we were talking about a request for £285,000. The idea that a privately-funded claimant can start producing that sort of money, particularly one who has had her career, on the face of it, damaged -- wherever the fault with that lies is for others to decide --is wholly unrealistic. One cannot see what good it would serve. Perhaps it was given away by Ms. Marzec when she said that it "might discourage". Why should they be entitled to have the claimant discouraged? The court has not found that it is unlikely; the court has simply said that, on the face of it, it may seem surprising the publication may be established. Surprises happen from time to time in court following trials and following these sorts of applications.
72. JUSTICE EADY: I have decided that the issue should be left to the jury. I have to bear in mind such matters as access to justice and equality of arms. In the circumstances, I do not think it would be right for me to put a clog, if that is the right expression, on the access of this claimant to jury trial. I will not make a conditional order.
73. MARZEC: My Lord, upon the principle of costs of this application, we would submit that given the paucity of the evidence against my client and given the fact that the claimant's defence is going to be made up of inference upon inference, and your Lordship has found "that it is unlikely that anything can be brought home against the second defendant at trial in terms of publication", we submit that this was a matter that was correct and suitable to bring before the court really as a matter of case management so that your Lordship could appraise whether or not the issue of publication can be dealt with in some other way.
74. In doing so, we have presented various options to the court, either to strike out, summary judgment, preliminary issue or a conditional order. Although we have not succeeded in persuading your Lordship that anything other than the usual approach should be adopted, we say that it would be wrong if the second defendant were penalised for bringing this before the court.
75. We submit that, in this case, the right order would be no order as to costs.
76. SS PAGE: My Lord, why should Dr. B be penalised having succeeded in resisting an application which should not have been made? However understandable it was, it was made. The result means that it was wrongly made - not wrongly made in the sense of judgment but in the sense that that was the outcome. Again, as far as Dr. B is concerned, she has had to incur costs of a day spent in court on this matter. There is absolutely no reason why costs should not follow the event in the circumstances of this case, perhaps not least having regard to the particular facts that were highlighted by your Lordship in the judgment, namely reference to the letter of 20th September and the findings of the appeal committee.
77. Both of those are matters that are raised not as issues of controversy; they are there as a fact. The question is what inferences can be drawn from that. It would not be right to criticize the quality of the evidence which caused the application to fail. I would say that there is absolutely no basis for the court to say that the normal course should not follow.
78. JUSTICE EADY: It seems to me that the second defendant was entirely entitled to have a go, if I can put it that way; but having had a go, she has lost. I think there is nothing here to suggest that the ordinary consequences should not follow, in other words that costs should follow the event. I think the claimant is entitled to her costs of these applications.
79. MISS PAGE: In that case, can I invite your Lordship to look at the schedule of costs. It splits down, as one sees, on the second page, inclusive of VAT, for the solicitors £12,000, for counsel £10,000, exclusive of VAT for the two counsel.
80. MS. MARZEC: I have two points. First, I am told that the VAT is not properly claimed because that cannot be claimed until last. There are two figures where VAT is included - VAT on the solicitors' costs and VAT on counsel's costs.
81. MISS PAGE: (Inaudible).
82. MS. MARZEC: So you did. Secondly, as a matter of substance, it is unfortunate that the figure for counsel's fee is broken down between leading and junior counsel. We would say that there is no need for leading counsel on an interim matter. Mrs. Page's junior is a very experienced libel junior who pleaded the reply and knows the case on publication backwards. We submit that it is disproportionate to have counsel's fees over £10,000 and VAT on an interim matter and it could have perfectly well have been dealt with by juniors.
83. MR. JUSTICE EADY: Do you want to say anything about charging rates or time spent?
84. MS. MARZEC: We note that the charging rate for Mr. Bays is high, but I do not make any points about the time spent on the application.
85. MR. JUSTICE EADY: Sometimes, on these summary costs applications, counsel are quite anxious to put in their own for comparison purposes. You are not taking that course?
86. MS. MARZEC: I can tell your Lordship that the total (inaudible) which is £5,000, or more than that, is £6,000 less. Of course, it is the second defendant's application, so one would expect the costs to be high. The difference between the two are largely accounted for given the presence of leading counsel and not simply junior counsel. I do not make any point as to the time spent by the claimant's solicitors.
87. MR. JUSTICE EADY: Is there anything you want to say?
88. MISS PAGE: In fact, Ms. Marzec's solicitors did not do all the work on the application. Some of it was done by Eversheds who were also, if we failed, going to seek their costs. They did the drafting of the witness statement of Prof. N and they also were claiming for input in relation to the other witness statements.
89. In that case, the partner's charging rate was £350. They claimed to have spent over eleven hours on the drafting of Prof. N's statement and they were going to seek the sum of £4,300. In fact, it is not right to say that, when comparing £17,000 with the £23,000, pretty well equated on that even allowing for the difference in the fees of counsel. It is always invidious to defend one's attendance, but, from the point of view of the claimant, this is a very important application and libel is a matter where all sides frequently do use leading counsel quite justifiably. I would submit that the costs are reasonable.
90. JUSTICE EADY: Given the modern approach to these matters, although one cannot properly criticize the attendance of leading counsel, it does seem to me that the claim for representation during the course of these proceedings, which are at an early stage and relatively narrowly focused, is disproportionate. Therefore, in accordance with what is becoming a relatively common practice now, I propose to reduce the overall bill by £5,000. It seems to me that, bearing in mind the length of the hearing and the nature of it, the overall costs claimed are disproportionate. I think it particularly can be focused not so much on charging or time spent by solicitors but on the attendance of counsel. I make no criticism at all of the counsel involved or the choice to have leading counsel. It does seem to me that when it comes to judging what the other side should pay for, it is, as I say, by current standards, excessive.
91. I have not addressed the VAT point, but what I intend to do is to reduce, subject to the VAT point, the overall sum, by £5,000.
92. SS PAGE: My instructing solicitors are certainly puzzled by this. My client cannot recover the VAT because she is a private individual. In those circumstances, that is why VAT is included. No doubt between solicitors they can resolve this.
93. MR. JUSTICE EADY: Yes.
94. MISS PAGE: The overall calculation can be done as between VAT and ----
95. MR. JUSTICE EADY: My reduction is directed towards the underlying sum and VAT will either follow or not, according to what can be sorted out between the solicitors.
96. MISS PAGE: I should just raise one other matter, which is that further directions are, in principle, required to take the case on. What is Mr. Bays' suggestion is that in view of the quantity of the disclosure which runs to thousands of documents -- an inspection is going on at present -- rather than ask your Lordship for directions, we would like to be able to bring the matter back to court, presumably back to the Master, for further directions when inspection is completed; which we will do. I thought that I ought to touch on it in case anybody else had views on wanting directions now.
97. MS. MARZEC: My Lord, we are perfectly content with that.
98. MR. JUSTICE EADY: Thank you very much.