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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice
		Tuesday, 11th November 2003

MR. JUSTICE EADY:

1. The background to this libel action is the accusation levelled by a woman called Nadine Milroy-Sloan against Mr. and

Mrs. Neil Hamilton that on a May evening in 2001 they had indecently assaulted her in a flat in Ilford. She also said that she was raped by another man on the same occasion. The allegation against the Hamiltons was false and appears to have been fabricated. Moreover, it emerged in due course that the Hamiltons had an alibi for the Saturday evening in question, when they were giving a dinner party in their flat several miles away in Battersea.

2. The complaint was made to the police on 6th May of that year, the day following the alleged incident, and yet it was not until 28th August that the Metropolitan Police announced that they were in the clear. Following what was described as a "thorough investigation" no evidence had been found to support the allegations against them. In the meantime a good deal of public resources had been devoted the inquiry and the Hamiltons subjected to uncertainty and unpleasant publicity. Indeed, they had actually been arrested and interviewed on 10th August. To the casual onlooker this may have seemed absurd, and indeed the articles forming the subject matter of these proceedings were critical of the waste of money involved.
3. It is, however, necessary to bear in mind the public policy considerations now governing the police with regard to allegations of serious sexual offences. In particular, item 14 of police orders dated 9th November 1990 includes the following principle:

"That it is Metropolitan Police policy to accept as the truth all aspects of an allegation of sexual crime made by a victim and that an allegation will only be considered as falling short of a substantiated allegation of crime after a searching inquiry."

As so often, therefore, there are risks in attempting to over-simplify.

4. The first article was published in the Daily Mail on 11th September 2001, and the second in the Evening Standard for the same day. Both are published by Associated Newspapers Limited. The Mail article was headed "Hamilton Sex Case Shambles to Cost Public £1M", and described the police inquiry as a fiasco. The Evening Standard article headline was:

"Yard admits it should not have arrested Hamiltons".

5. The claimant is Detective Chief Inspector Christopher Miller of the Metropolitan Police. The natural and ordinary meanings pleaded on his behalf are to the effect that he had conducted a grossly incompetent inquiry into the allegations, which had cost up to £1 million of public money, and, secondly, that three years earlier he had conducted another grossly incompetent investigation into the alleged abduction and rape of a 17 year old girl. In respect of this second accusation, it is said that the Mail article also attributed to the claimant the waste of another £400,000 of public money.
6. The defendants have raised pleas of justification and qualified privilege, both of which have been the subject of challenge by Mr. Stephen Suttle QC on the claimant's behalf. By an application notice of 19th June 2003 he sought to strike out both defences pursuant to CPR 3.4 and Part 24. Recently, however, the defendant has sought permission to amend its defence and this has helped to narrow the issues. It is now conceded that the significantly amended defence of justification would, subject to certain relatively minor qualifications, be supportable as a pleading. It is still disputed as to the merits but it is recognised that it is not susceptible to summary relief. It remains the claimant's case, however, that qualified privilege has no realistic prospect of success and ought therefore to be struck out.
7. These applications need to be viewed perhaps against a more general background. Since the decision of their Lordships in Reynolds v. Times Newspapers Limited [2001] 2 AC 127 there has been something of a tendency to plead qualified privilege in rather waffly generalities and these require close scrutiny. There is an undesirable trend to plead in rather vague terms and then to try to avoid the sanctions of Part 24 by resorting to the dicta of Sir Thomas Bingham, Master of the Rolls, in E (a Minor) v. Dorset County Council [1995] 2 A.C. 233 to the effect that in an area of developing jurisprudence an order striking out should not be made. That is an important principle, but it is not to be regarded as a mantra that will guarantee a way round the disciplines of pleading.
8. In particular it needs to be remembered, as Lord Cooke expressed it in McCarten Turkington Breen v. Times Newspapers Limited [2001] 2 AC 277 at 300, that:

"The main principle for which the Reynolds case stands is that the 'classical interest duty test' is adaptable to a great variety of circumstances."

Thus, Lord Nicholls' ten non-exhaustive criteria in Reynolds provide invaluable guidance for testing the primary question in any given case whether the defendant had a social or moral duty to publish the words complained of to the general public. To put it another way, whether it was in the public interest for those words to be made available irrespective of their truth or falsity: see e.g. Loutchansky v. Times Newspapers Limited (Nos. 2-5) [2002] QB 783 at 809, paragraph 41(iii). Another way of putting the same point, or expressing it from a different angle, is to ask if the public has a right to be told the allegations, as published, at the material time.

9. The test to be applied is an objective one and I accept that it has to be directed towards the time of publication or shortly before. It is undoubtedly true that, when the court approaches such a defence nowadays in the light of Lord Nicholls' guidance, matters are likely to be investigated for the purpose of determining whether the publication was privileged which, under the ancien regime, would generally have come into play only at the secondary stage of deciding whether it was actuated by express malice.
10. If a particular publication passes the privilege test now, it is very difficult to envisage circumstances where there would be room for it to be overridden by malice. That is far from saying, however, that a defence of privilege can be established by reason either of the journalist's belief in the truth of what he wrote or even of his belief that he had a duty to pass it on. The test remains an objective one.

It is always necessary to have regard to the principle highlighted by Lord Hobhouse in Reynolds at p.238 to the effect that: "No public interest is served by publishing or communicating misinformation". This is why there is generally no duty to publish mere rumour or gossip or allegations which are still the subject of investigation by an appropriate body or tribunal. (I should perhaps record that the disciplinary charges facing this claimant as at the date of publication were determined later, on or about 18th October 2001 in his favour.)

11. Here, the plea of qualified privilege is introduced by three paragraphs two of which, namely 11 and 13, are of a general nature. I quote paragraph 11:

"The subject matter of the articles complained of was of proper and legitimate interest and concern to the general public. The public has a legitimate concern in the competence and efficiency of the police for a whole variety of reasons including the need to prevent unnecessary prolonged trauma, stigma, injury or embarrassment to or at worst wrongful conviction of those falsely accused of criminal offences (the more serious the offence the greater the public interest); the need to see due process and codes of practice adhered to; the need to prevent wastage and public money and to ensure that limited resources are properly prioritised and utilised in the detection of crime."

Paragraph 13 follows a general plea that the articles in questions were published on occasions of qualified privilege:

"In a democratic society it is the duty of the press to convey to the public at large information on matters of legitimate public interest and concern and the public has a corresponding interest in receiving such information amounting to a right to be informed."

Those paragraphs, so far as they go, are wholly unobjectionable and uncontroversial. There then follows what I might describe as a "puff" for the author of the Daily Mail article. This has in itself little to do with the defence of qualified privilege.

12. Before turning to the substantive particulars, relied upon to support a social or moral duty to publish allegations about Mr. Miller on the material date, my next task is to focus on the test I must apply on an application for summary relief. This is well trodden territory. I was naturally referred to Swain v. Hillman [2001] 1 A11.E.R. 91, from which it is clear that judges should not conduct a mini-trial by trying to resolve genuinely disputed questions of fact, and moreover that it is necessary in a case such as this to inquire whether the defence under challenge has a realistic chance of succeeding or merely one that is no more than fanciful.
13. Specifically in the context of the right to jury trial, judgment should not be given at any stage which has the effect of depriving the parties of a jury decision in any case where the defence may depend at least in part on a finding of fact which would be properly open to that tribunal: see e.g. Wallis v. Valentine [2003] EMLR 8 at [13] and Branson v. Bower [2002] 2 Q.B. 737 at 744. Thus, even if a judge thinks that a particular factual conclusion for which one side contends is somewhat far-fetched, it is the jury's credulity rather than the judge's that must be kept in mind. The parties should therefore be given the benefit of the doubt: see e.g. Spencer v. Sillitoe [2003] EMLR 10 at [31] and Bataille v. Newland [2002] EWHC 1692 (QB) at pp.6-7.
14. Where it is a defence of qualified privilege that is under challenge, the matter turns not merely on questions of fact. There is the ultimate conclusion, to be taken by a judge rather than a jury, whether the facts give rise to a social or moral duty. At a pre-trial stage, clearly any such conclusion has to be judged in the light of all factual assumptions being made in the defendant's favour: see e.g. Gilbert v. MGN [2000] E.M.L.R. 680. Thus, one should take the pleaded facts at face value. Here there are a number of lengthy sub-paragraphs pleaded in respect of the newspaper articles which it would be tedious to cite in extenso. I should, however, attempt to summarise them.
15. I turn first to the plea for the Daily Mail piece. Reference is made to two internal police sources described as A and B. It appears from paragraph 16, and I must assume for present purposes, that the journalist, Mr. Wright, was given information about the content of a confidential so-called "interim progress report" dated 29th August 2001 prepared by Acting Commander John Yates into the police investigation of the Milroy-Sloan allegations. It is not clear that he knew what the source of that information was at the time.
16. It is pleaded, and again I must assume, that the article as published had been read over to source A prior to publication and confirmed by him as accurate. Later the same day, it was also apparently discussed with source B by way of independent verification. Source B also proffered his own personal opinions to the effect that the investigation had been

"a fiasco" and that it had been "a major source of embarrassment to the Metropolitan Police". Also source B opined that, since the claimant was "under a cloud" for his role in investigating an earlier rape allegation by a Miss B, it was "an embarrassment to have had the claimant centrally involved in the Hamilton investigation" (see paragraph 17).

17. It is appropriate to pause at this stage to make two observations. First, the quality of a journalist's sources may well be a subject for investigation in determining whether or not a social or moral duty arose to publish the particular defamatory allegations, at the time they were made, and whether or not other checks were appropriate. So much is obvious and, indeed, expressly listed by Lord Nicholls in Reynolds among his non-exhaustive criteria. It is important, however, not to fall into the confusion of thinking that, just because one has a reliable source on a subject of general public interest, one therefore has a duty to publish whatever he says or, correspondingly, that the general public has a right to hear his particular slant on partially revealed confidential information. Secondly, neither the speculations nor the opinions of the journalist or his source about the claimant are matters which the public necessarily has a right, and I emphasise that word, to hear.
18. Just as in Blackshaw v. Lord [1984] Q.B.1 there was no duty to pass on the journalist's speculation that Mr. Blackshaw was to blame for the loss of £52 million of public money, albeit of itself a matter of public interest, so too there could hardly be a public entitlement to receive opinions, and I emphasise that word, about Mr. Miller whether from the journalist, source A, source B or any other interested bystander. In other cases, of course, the right to express opinions can be important in the context of a fair comment defence, but that gives rise to other questions and most certainly does not depend on a duty to communicate those opinions or a right to receive them. Qualified privilege concerns different aspects of public policy. No plea of fair comment arises for consideration today.
19. Thus, the mere fact that one has a source, or even two sources, does not establish a duty to publish the information derived from the source - let alone the source's personal opinion. To establish the ingredients of qualified privilege, as succinctly summarised by Lord Cooke in Turkington, more is required. I therefore turn back to the pleading to see what factors are relied upon to establish the public's right to hear a partial account of an internal review which was interim, and thus at most expressing Mr. Yates' provisional views irrespective of its truth or falsity. One of the relevant factors in this context, both before and after their Lordships' decision in Reynolds, has long been the status of the information published. Indeed, information released in some circumstances is accorded such high status that it attracts statutory qualified privilege. This would include, for example, fair and accurate reports or summaries of material released by the police for the information of the public. Here I am concerned with a confidential internal and merely interim report which had the status, so to speak, of work in progress. The question is therefore whether the journalist had a duty to publish an incomplete and secondhand account of what it contained because of some exigency requiring the public to be told before the work was completed, and without the opportunity to check the content and to ensure the fairness and accuracy of the summary.
20. It is the status of the report and the information which it contains which primarily matters here, because it is that information which the defendant argues the public had a right to know. It is not the opinions of source A or source B or any other police officer which had the relevant status.

This may be of some importance when, in the light of

Mr. Suttle's analysis, I come to consider how much of the published material does, and how much does not, derive from the interim report. It is clear from a number of authorities that a claim to publish, under a social or moral duty, information about allegations into which an appropriate and/or authoritative inquiry is under way, and in respect of which final conclusions have not yet been reached, will require the closest scrutiny: see e.g. Purcell v. Sowler (1877) 2 C.P.D. 215, CA., Blackshaw v. Lord [1984] 1 QB1 CA and Doyle v. Economist Newspaper [1980] N.I.R. 171.

21. It is important, even after the Reynolds decision, to bear in mind that where the general subject matter or context of allegations is of a general public interest, the premature attribution of blame to specific individuals may not be in the public interest. It is, for example, clear that Lord Nicholls had these older authorities well in mind in setting out his non-exhaustive tests (see e.g. pp.195-197), and in referring to "status" at p.205 he expressly drew attention to the consideration that an allegation may already have been the subject of an investigation which commands respect. That would obviously be a factor in favour of qualified privilege. Examples are provided by such cases as Allbutt v The General Council of Medical Education and Registration (1889) 23 QBD 400, Cox v. Feeney (1863) 4 F&F 13 and Perera v. Peiris [1949] A.C.1. His Lordship's description would hardly be apt to embrace a confidential and partially completed inquiry enjoying the status only of "work in progress".
22. I must now return to other checks said to have taken place which are pleaded with a view to fitting the template of Lord Nicholls' non-exhaustive tests. In paragraph 19 of the draft amended defence, reliance is placed on a telephone inquiry apparently delegated by Mr. Wright to a colleague called Ben Taylor. He was asked to check at Scotland Yard the allegations about the claimant facing disciplinary proceedings. He spoke to someone called Nicky the evening before publication at about 7:30 pm and, thus, presumably relatively shortly before the first edition of the Daily Mail would have reached its published form. It is said, and again I must assume this to be accurate, that following inquiries Mr. Taylor was informed that an unnamed senior officer based in the East Area was facing disciplinary proceedings.
23. Mr. Taylor assumed that this amounted to confirmation that

(a) the claimant was in charge of the Milroy-Sloan investigation and (b) that he was facing disciplinary proceedings in respect of another matter. Why he should have made these assumptions is explained on the basis that when he had made the inquiry to "Nicky" he had mentioned the claimant by name, and had also described him as "the officer in charge of the Milroy-Sloan investigation (or words to similar effect)". This is perhaps analogous to the assumption made by the journalist in Blackshaw v. Lord following a conversation with a press officer to the effect "must be Blackshaw". Nevertheless, as I have already made clear, it is in fact the case that Mr. Miller was facing four disciplinary charges (which were, as it happens, dismissed shortly afterwards or found to be not proven).

24. Finally, and for good measure, reference is made in paragraph 20 of the pleading to other independent sources within the police who had supplied Mr. Taylor with information or opinions. What they told him, I must assume, was that the Milroy-Sloan investigation was considered (by an unidentified person or persons) to have been handled very badly and to represent an embarrassment to the Metropolitan Police.

Mr. Taylor's sources also reported to him:

25. That the claimant was considered (again by an unidentified person or persons) to have mishandled the Milroy-Sloan investigation.
26. That he was not highly rated (again, by whom is left unclear).
27. That he was facing allegations in relation to the handling of another rape inquiry.
28. That he had been criticised by somebody for the lengthy lapse of time between Miss Milroy-Sloan's complaint and the decision to arrest the Hamiltons "which is said to be seen by senior officers as a bad way to run a case like that".
29. That they, the sources themselves, held the view that it was surprising that Mr. Miller was allowed to be in charge of a high profile case when he was facing disciplinary proceedings relating to another rape investigation.
30. It is to be noted that those sources made no mention of any internal review of the Hamilton investigation. Thus, they appear to have been doing no more than passing on the opinions of other unidentified persons, and in one case (identified in sub-paragraph 5 above) their own opinions. This information such as it was could be said to be lacking in status and specific factual content. Nevertheless, in itself it is not pleaded as giving rise to a social or moral duty but rather as confirming Mr. Wright's own judgment as to the "accuracy and public interest" of the words complained of.
31. Having attempted to summarise the case pleaded as giving rise to the relevant social or moral duty, on the part of the Daily Mail, I must now consider to what extent its factual content can be said to derive from the internal interim progress report presented by Mr. Yates on or about 29th August 2001.

I do this to test the extent to which the allegations about Mr. Miller could or could not be said to form part of a fair and accurate summary of the interim report itself. I leave aside, for the moment, whether such a report could have sufficient status to give rise to a right on the part of the general public to have passed on to them even an accurate account of its content, or the provisional conclusions or opinions of its author.

32. Mr. Suttle listed the following significant allegations contained in the article which in themselves cannot be said to derive from the report or the accompanying letter sent by

Mr. Yates dated 30th August 2001:

33. The allegation in the front page headline "Hamilton Sex Case Shambles to Cost Public £1M".
34. The word "fiasco" in the first paragraph which seems to be from source B rather than the interim report.
35. The proposition that an internal police review had "concluded" anything, i.e. reached final conclusions, as opposed to interim or provisional ones.

4. The specific "conclusion" from the same paragraph that the Hamiltons should never have been arrested (a decision in any event apparently taken by the claimant's superior Mr. Croll).

5. The reference to "embarrassing failures" in the third paragraph which seems again to be merely an opinion of source B.

6. The assertion in paragraph 6 that the investigation "... should have been dropped within weeks".

7. The imputation that the interim report singled out

Mr. Miller as "the officer who led the Hamilton inquiry" for criticism over lack of supervision (by contrast with the Detective Inspector described as "day to day charge" who

"has not been blamed").

8. That the arrest was "highly public" (this being brought about by the Hamiltons' liaison with the media).

9. The suggestion that the Hamiltons had "immediately" revealed a "cast iron" alibi; the report in fact reflecting that it was not perceived by Mr. Yates as having been revealed "immediately" or as being "cast iron". (See, for example, paragraphs 2.23 and 2.15.)

36. This is a formidable list and strongly suggests that the plea of qualified privilege may be somewhat optimistic, but if the sole issue were whether or not the report constituted a fair and accurate report of the interim report, it would appropriate to leave it to trial. It is generally accepted that where "fairness and accuracy" arises in connection with statutory qualified privilege it is an issue for the jury to resolve: see e.g. Kingshott v. Kent Newspapers [1991] 1 QB 88 97 E-H and Gatley on Libel and Slander 9th Ed. at paragraph 34.16.
37. The question is to my mind the more fundamental one as to the status of the interim progress report. There would be no urgency requiring that the public should have immediate access on 11th September 2001 even to a fair and accurate summary of interim findings or opinions, let alone to partial or second or third hand observations on what it did or might contain. That is perhaps especially so in the light of the fact that a criminal investigation was still in progress, not only into the Milroy-Sloan allegations themselves but also as to whether she might be guilty (as ultimately apparently turned out to be the case) of attempting to pervert the course of justice. Comments on her credibility were hardly appropriate at that stage at all. It could not be said that there was a duty to make them.
38. There can be little doubt that the views of unidentified police officers, such as Mr. Wright's or Mr. Taylor's sources, as to how the Milroy-Sloan inquiry had been conducted, would not themselves carry such weight as to be accorded the status that Lord Nicholls had in mind. Such opinions belong, if anywhere, in the territory of fair comment on a matter of public interest - provided of course that the views are expressed on facts accurately stated. Thus, of Lord Nicholls' ten non-exhaustive tests, those numbered five and six would tend to militate strongly against privilege even though every factual assumption is made in the defendant's favour.

Mr. Suttle, however, made submissions on the other tests as well. In the light of those submissions, I should briefly address each of the numbered criteria in turn:

39. The allegation about the claimant was undoubtedly serious.
40. While the general subject matter of police investigations into allegations of crime, and that of the Milroy-Sloan investigation in particular, are of public interest, the defendant's attribution of blame to the claimant when the Yates inquiry, and his disciplinary proceedings, were yet to be resolved did not require to be widely published.
41. As to the sources, little is known. I should assume that they were not paid and were believed by the journalist to be in general terms reliable. But since no approach had been made to the claimant, the journalist was hardly in a position to know whether or not they had in fact any "axe to grind" so far as he was concerned. For present purposes I must assume they did not.

4. The steps taken to verify the information, given the absence of urgency, were minimal and in particular did not include any attempt to establish officially the status of the interim report or to verify its contents.

5 and 6. I have already addressed the criteria as to the status of the information and the lack of urgency.

42. The claimant was not approached for his side of the story, but he would not have been able to speak to the press and would inevitably have referred any press queries to the Scotland Yard press office. It would thus have been appropriate at least to address to that office the questions that would normally be directed to the person about to be defamed.
43. The article did not for obvious reasons contain the claimant's side of the story.
44. The tone of the article was in a sense sensationalist,

and so far as it was introduced by front page headlines, in expressed conclusions of fact as to the cost of the "shambles", and the other matters listed.

10. As to the general "sweep up" criterion about "circumstances of publication", there is nothing to add.

45. So far as the Evening Standard article is concerned, this was attributed to Mr. Richard Holliday. In the words of the draft amended defence, he was "confident that he could lift the story safely and without the need to perform independent checks of his own". On that basis it is suggested that the public had a right to have the allegations passed on to them at that time irrespective of whether they were in fact true or false. It is to be noted that the original element in the Standard article, namely the headline, refers to a supposed "admission" that Mr. and Mrs. Hamilton should not have been arrested. That is not reflected in the interim report and is thus in itself inaccurate.
46. I have come to the conclusion that, making full allowance for the modern flexibility of the defence of qualified privilege in respect of publications to the world at large, the plea is here untenable. It is conceded in the light of the amendments that the defendants are entitled to argue justification on the basis of "reasonable grounds to suspect" and that will have to be tried in due course. It seems to me to be undesirable to leave this alternative defence to clutter up the trial. It is after all a judge's duty to strike out untenable defences if there is no factual dispute for the jury to resolve which is capable of making any difference. That seems to me to be the position here, since all factual assumptions have been made by me in favour of the defendant when considering qualified privilege.
47. I should add a few words about the fall-back submission that the law of qualified privilege is in a state of development and, thus, that the pleas should be left in contention for the reasons outlined in E (a Minor) v. Dorset County Council (cited above). I should be surprised if their Lordships believed, after the exposition of the law and practical guidance offered in Reynolds and shortly afterwards in Turkington, that the law itself was still in a state of development. There may be judgments to be made on how to apply the principles, as the years go by, on an infinite variety of facts. It will always be necessary to have regard to a changing and complex society as well as to the values of the European Convention, but there is a fundamental difference in my judgment between recognising that the law is to be applied flexibly, as did Lord Cooke, for example in Turkington, and on the other hand characterising the law itself as in a state of flux. As I suggested earlier, if this distinction is not borne in mind, there is a danger that any plea citing a few generalities about the duty of the media to be a public watchdog will be allowed to pass muster and thus to prolong and complicate unnecessarily a significant number of libel actions in which qualified privilege has no legitimate role to play.
48. There is a final issue for me to resolve. Mr. Suttle has objected to the terms in which the new plea of justification is drafted, specifically as to the Lucas-Box meaning. He submits that it should be drafted differently so as more accurately to reflect the allegations actually made in the article. It seems to me that it is neither for the court nor the claimant to draft the defendant's Lucas-Box meaning.

If it is not such as actually to be struck out, then the appropriate course is to address any criticisms to the jury and to let them decide whether what is pleaded and/or ultimately proved in fact justifies the sting of the relevant article or not.

MR. JUSTICE EADY: Yes.

MR. SUTTLE: My Lord, in those circumstances I have a number of short submissions to make. First, I would ask your Lordship to order that the pleading be reserved without the offending plea. Secondly, my Lord, there is the question of costs. It has already been conceded that the costs of and occasioned by the application to strike out for clear justification, which of course was cured by a late amendment, should be paid by the defendant to the claimant. So there are just the costs of the qualified privilege argument which in my submission should follow the event.

My Lord, there has been a schedule of costs handed up for the purposes of summary assessment that unfortunately contained an inaccuracy, so may I please hand up another?

MR. JUSTICE EADY: Yes.

MR. SUTTLE: (Handed) Embarrassingly, in relation to my fee which has now been corrected. My Lord, may I just make three comments upon it, anticipating points which may be made against me. The first one, the hourly rate of the partner concerned, £400 an hour, my Lord, your Lordship held in May of 2001 in a case called Windsor v. The Express in which I was on the other side that an hourly rate claimed by the solicitors now acting for the claimant in this case, and acting for the claimant in that case, then at £350 an hour was an appropriate rate for this part of London. So there has been an uplift of £50 on that.

MR. JUSTICE EADY: Sorry, I think Miss Page was discussing the matter with her solicitor.

MR. SUTTLE: I am so sorry, I thought it was addressed to me.

MR. JUSTICE EADY: No.

MR. SUTTLE: So there has been an uplift of £50 since May of 2001, and I have, if necessary, an extract from your Lordship's judgment on that occasion in which your Lordship made that observation.

MR. JUSTICE EADY: Well, perhaps I had better hear that a little bit later if necessary following what Miss Page has to say.

MR. SUTTLE: My Lord, yes. That is the first point. The second point, my Lord, is the time claimed for attendances on documents at the bottom of the page. My Lord, I do have here, if necessary, a print out, a computer print out justifying those times and I can hand that up.

MR. JUSTICE EADY: Yes.

MR. SUTTLE: And, thirdly, there was the mistake in my fees which has now been corrected. A rather inflated figure was given for a brief fee which was both inaccurate in itself, and also failed to take account that part of it related to setting the application date. Your Lordship will see it has now been broken down correctly, and also reduced considerably.

MR. JUSTICE EADY: Yes.

MR. SUTTLE: So those are the figures, my Lord.

MR. JUSTICE EADY: Thank you. Miss Page, first of all, it is suggested that the defendants should be re-served. What do you say about that?

MISS PAGE: Yes, that, subject to my application for leave to appeal, obviously followed the question whether it ought to be re-served with what is removed. There has been an outstanding request by my learned friend in relation to whether or not any other matters are relied on in support of justification. That correspondence is still on-going on that because we have asked them specifically for more information which they have not provided us, so I do it with that caveat. But that simply goes I think to timing of re-service rather than anything else at this stage.

MR. JUSTICE EADY: 28 days or something?

MISS PAGE: I think 28 days subject to if we could have some undertaking that we are going to get the answers to the information that we have raised since 3rd October I think from the claimant's solicitors.

MR. SUTTLE: I am sorry, my Lord, I was not aware that these requests had been made. I understand that they have been made in correspondence. There is no formal request.

MR. JUSTICE EADY: I see.

MR. SUTTLE: My solicitor is suggesting to me that they are matters which can be dealt with in a witness statement.

I am afraid I am simply not in a position to help on that.

MISS PAGE: Well, if we say 28 days that gives us time if necessary to come back to court.

MR. JUSTICE EADY: Yes, if necessary. I hope it can be sorted out but I will say 28 days then.

MISS PAGE: Yes.

MR. JUSTICE EADY: Now the question of costs?

MISS PAGE: On the question of costs, so far as the qualified privilege plea is concerned, I cannot dispute that costs should follow the event on the strike out, and it is indeed true that so far as strike out, a plea of justification is concerned, then we have accepted that the costs of the amendment to the application to strike out should be formal by the defendant in any event. Now, the only caveat on the question of a principle of the costs order of course is that we have also had an argument -- a small argument admittedly -- on the justification or the Lucas Box in the skeleton arguments, in the correspondence, which has gone backwards and forwards prior to the last hearing, and in the argument, and something should be deducted from that. On that we have won, and on that I would suggest that perhaps 10%-15% would be the appropriate hiving off on that.

So far as the schedule of costs is concerned, I have to say that on this side we were surprised to see the rate of £400 and were not aware of the decision to which Mr. Suttle is referring. It should be borne in mind here there is also a conditional fee agreement with a success fee, therefore the effective rate one infers is £800 per hour so far as the partner is concerned. The partner has spent some 22½ hours in relation to this application which is, I would submit, on the face of it very surprising bearing in mind that £1,500 is for Mr. Suttle settling the application notice. Mr. Suttle no doubt is the one who has basically done the work on this. These are points of law fundamentally and not a matter in which a partner need conceivably be spending that amount of money. Attendances on documents in these circumstances is usually agreeing the bundle which is usually done by someone at a very junior level.

The broad thrust of all this is that in my submission that this is a case where having regard not only to the hourly rate but also the huge number of hours being charged, that the court should order a detailed assessment and not allow this to be summarily assessed, and certainly not if we are going to have a justification of hours spent which we have not seen or had a chance to consider. So that is what I would ask for on costs. I will come back perhaps to leave to appeal in a moment.

MR. JUSTICE EADY: Yes, Mr. Suttle, what about this point on the justification. It was a tiny point so far as the hearing was concerned, but I suppose it is fair to say that some time was spent on it for the purposes of skeleton arguments and correspondence.

MR. SUTTLE: My Lord, I would submit it is a minimal point on any view, not simply for the hearing but also in correspondence and in the skeleton arguments. Compared with the issues, the very substantial issues that were raised in relation to the original plea of justification and the plea of qualified privilege which, of course, your Lordship ... very lengthy judgment to resolving, this is just a grain of sand, in my submission.

The other point is that of course it came out of a moving of the justification goal posts at the very last minute and, in my submission, when a defendant chooses at the very last minute, having had months to reconsider the position to change the way a defence is put forward, he cannot really expect the claimant simply to take every ... on the chin without raising some queries about matters that concern him, so in my submission this is de minimis compared with the rest of the application and it should be considered in the light of the last minute moving of the goal posts.

My Lord, so far as the costs are concerned, I am concerned that if I hand up the schedule which I have here justifying my solicitors time, it is going to take some time to resolve and I have therefore obtained instructions that if my learned friend wishes the matter to go off to a detailed assessment I will not oppose that.

The only remaining matter is leave to appeal but we do not have ----

MR. JUSTICE EADY: Payment on account I suppose.

MR. SUTTLE: Of course, my Lord, yes. Yes, payment on account.

MR. JUSTICE EADY: Have you received a bill from the other side at all?

MR. SUTTLE: A costs schedule from the other side?

MR. JUSTICE EADY: A costs schedule, yes.

MR. SUTTLE: Yes, there is a costs schedule from the other side.

MR. JUSTICE EADY: Do you have it?

MR. SUTTLE: I have a copy I can hand up. (Handed)

MR. JUSTICE EADY: Sometimes that is helpful.

MISS PAGE: It is a grand total of £8,898.

MR. JUSTICE EADY: I see, thank you.

MR. SUTTLE: Yes, my Lord, I have made three points on that.

The first is that if this is to be taken by way of a base figure for payment on account, the appropriate figure in my submission would not be the £8,898, but would be £10,260 because they have reduced their costs on the assumption that they have conceded the justification, so that the pre-justification figure is £10,260. The second point is that because this is a newspaper defendant there is no VAT in comparison with my schedule, and the third point is that when one is acting for newspapers it is a fact of life that fees are lower than one is not. So, in my submission, the appropriate figure here would be -- and bearing in mind that the particular concern relates to the attendance on documents figure, if that were to be left out of account the appropriate figure would be somewhere in the region of £15,000.

MR. JUSTICE EADY: Yes. Thank you. Is there anything you want to add on any of that, Miss Page?

MISS PAGE: Well, it is not satisfactory simply to say on the justification point it is a grain of sand. This matter has been litigating correspondence in a skeleton argument and at the hearing and account must be taken of it in some form or another otherwise there is a complete windfall to the other side and not fair on the defendants and, unless I missed it, no advance has suggested on my suggestion of 10% or 15%.

MR. JUSTICE EADY: I think that is high, is it not, on any view? If I were to take account of it I would rather take account of it by reference to a modest specific sum.

MISS PAGE: Well, a percentage is probably the only way in which to do it, is it not, unfortunately?

MR. JUSTICE EADY: Yes.

MISS PAGE: Then so far as a payment on account is concerned,

I may have missed whether a figure was suggested by

Mr. Suttle.

MR. SUTTLE: £15,000.

MISS PAGE: £15,000. Well, that is, my Lord, a payment on account in a circumstance where there is going to be a detailed assessment of 50% higher than the bill on the other side, and I would submit that £10,000 would be the appropriate figure in order to reflect the genuine concerns we have about the amount of time spent and the rate of time spent. Plus the fact that there is indeed a financial discrepancy in counsel's fees as well leaving out the application notice that as against me it is 4.5 and £500 for Mr. Speaker as against another £2,500 for Mr. Suttle. In general there should not be these sorts of discrepancies. It is nothing to do with acting for a newspaper so far as counsel is concerned. So I would invite your Lordship to make an interim payment in the sum £10,000.

MR. JUSTICE EADY: Yes, thank you.

49. So far as costs are concerned, it seems to me that the claimant is entitled to his costs as has already been agreed in respect of the bulk of the justification issue and also in respect of the qualified privilege issue. I do not think that it is fair to regard the relatively narrow issue of the formulation of the Lucas-Box meaning as being completely de minimis, but I think the way to deal with it is to say this, that I can make a summary assessment in respect of that and

I would think the sensible way of dealing with it is to say that when there is a final accounting as to what is due between the parties, the sum of £1,500 should be deduced to meet that point.

50. So far as the costs schedule is concerned, it has more or less been conceded now that there should be a detailed assessment in due course which seems to me to be right, and therefore the only question is whether or not and, if so, how much should be paid by way of interim payment. Bearing in mind the general level of costs on applications of this kind, it seems to me right to fix upon the figure of £15,000 by way of interim payment, and that is to be paid in the ordinary way within 14 days I think.

MISS PAGE: My Lord, on the question of an application on my part for leave to appeal, the points in your Lordship's judgment that I submit raise a proper issue for consideration by the Court of Appeal, are these. First of all, that your Lordship's decision turns very considerably on this being an interim progress report partially revealed, and as your Lordship knows from both on the pleading and from the skeleton argument, the fact that this was an interim report, and there were in fact three, was a factor unknown, and indeed unknown to both sides, at the time of publication, so this is an element of hindsight being argued and accepted, the existence of the duty at the date of publication.

Secondly, your Lordship also accepted the argument that the duty is detracted from by the criminal investigation still being in progress, and your Lordship will recall that when I opened the argument for the defendant I referred to the amount of the material that had already been in the public domain including regular material casting doubt on Miss Milroy-Sloan's credibility and criticising commenting on the police investigation.

MR. JUSTICE EADY: I think you described it as dead in the water or something.

MR. JUSTICE EADY: Yes.

MISS PAGE: And dead in the water as well I think too, yes.

But everyone had had their go in the press against her credibility, and it is true to say that in the draft amended defence it is pleaded in a low key way simply referring to the fact that there had been a lot in the public domain before then and that could be substantially increased. So there is an issue there as to whether or not the criminal investigation still being in progress was in the particular circumstances of this case a factor that should have militated against the existence of the duty, but more importantly it is the use of hindsight, including the comparison, and I appreciate your Lordship said that fairness and accuracy is for the jury, but certainly the use of the hindsight test in particular has been a central part of your Lordship's decision that this being an interim progress report did not have the status or the need for publication at that stage, and that I submit does raise an important issue of law, and actually an important issue which I think is troubling practitioners on both sides as to the extent to which one can use hindsight material both to judge the duty and to judge the public interest.

MR. JUSTICE EADY: Yes. Mr. Suttle?

MR. SUTTLE: My Lord, as a general consideration, in my submission it would be very unfortunate if a progress of this case where my client does face a very lengthy plea of justification seeking to criticise almost every aspect of his involvement in the Milroy-Sloan investigation were to be halted by a trip to the Court of Appeal on the issue of qualified privilege unless there were very good grounds for it. My Lord, in my submission there are not. Firstly, it is a very clear case, in my submission. Secondly, all the facts have been assumed in the defendant's favour and, thirdly, your Lordship has analysed and applied existing principles of law in a very full judgment and in a way which in my submission cannot possibly be criticised on appeal. So I would ask your Lordship to refuse leave to appeal.

MISS PAGE: If I can just respond that?

MR. JUSTICE EADY: Yes.

MISS PAGE: The test is the test regardless of what the impact is on a claimant. The court will not give leave to appeal simply because it is going to have -- not matter to the claimant. There has in fact been, it is true to say, a long period of time in which this action was stayed quite properly by reason

of the trial of Miss Milroy-Sloan and because we had to apply to the police for the report.

So far as the facts are concerned, whilst your Lordship has indeed assumed the facts, your Lordship has not necessarily assumed the facts so far as concerns what was in the public domain and the extent to which the criticism of Miss Milroy-Sloan was blown wide in the preceding weeks before this article was published.

MR. JUSTICE EADY: Thank you.

51. Doing the best I can, it seems to me that there is no realistic prospect of success in the light of the principles of law which I have attempted to apply and it seems to me therefore right to refuse permission to appeal. The Court of Appeal may of course take a different view.

MR. JUSTICE EADY: Does that dispose of all matters?

MR. SUTTLE: It does, thank you, my Lord.

MR. JUSTICE EADY: Thank you.

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