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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/07/2015

Mr Justice Warby:

1. This is the pre-trial review of this libel action by the former MP Tim Yeo against the publishers of The Sunday Times, which relates to articles published on 9 June 2013 and 23 June 2013. The action is due for trial by me over 7 days commencing on 12 October 2015.
2. All the articles complained of stemmed from an undercover investigation undertaken by two journalists of the Sunday Times "Insight" team, Heidi Blake and Jonathan Calvert. Ms Blake and Mr Calvert posed as representatives for a solar energy concern in the Far East. Central to the story was what Mr Yeo said at a lunch with the two journalists at Nobu restaurant on 21 May 2013.
3. By a judgment of 20 August 2014 I determined, as preliminary issues in the case, the meanings of the articles complained of. The full meanings I found the articles to bear can be seen from my judgment: [2014] EWHC 2853 (QB), [2015] 1 WLR 971 [121], [126], [138] and [139]. The central factual allegations I identified were to the effect that Mr Yeo was prepared to and had offered to act in a way that was in breach of the Code of Conduct of the House of Commons, by acting as a paid Parliamentary advocate.
4. I also found that the 9 June article contained comment to the effect that Mr Yeo had behaved scandalously, and shown willing to abuse his position in Parliament to further his own financial and business interests in preference to the public interest.
5. The defendant (TNL) contends that the factual meanings of the articles are true, that the comment was fair comment, and, or alternatively, that the content of each article represented responsible journalism on matters of public interest.
6. This judgment addresses the most substantial issues to which argument has been addressed at this PTR, which are the following:

i) The extent to which Article 9 of the Bill of Rights 1689 applies to the issues in the case, and its potential implications for the trial. Mr Yeo's team has raised the question of whether the court should at this stage lay down "ground rules" on that issue.

ii) An application by TNL for an order striking out, or summary judgment on, the claim in respect of the 23 June article.

iii) An application by TNL to strike out passages in the claimant's witness statement which it maintains are irrelevant or otherwise inadmissible or illegitimate, and related parts of the claimant's statements of case.

iv) An application by Mr Yeo for the court's approval of an amendment to his costs budget.

The Bill of Rights

7. Article 9 of the Bill of Rights 1689 provides "That the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament." This embodies a vital constitutional principle, which can conveniently be referred to as Parliamentary Privilege.
8. In my August 2014 judgment at [12] I referred to a report of the House of Commons Committee on Standards of November 2014 (the Standards Report) on which, at that stage, Mr Yeo was relying as having exonerated him of any breach of the MPs' Code of Conduct. I recorded that TNL took issue with that, maintaining that the Standards Report was concerned with different issues, did not exonerate Mr Yeo of the allegations made in the articles, and could not in any event affect the issues in this action.
9. I did not at that stage have to address any issues that this might generate about Parliamentary Privilege, but noted at [13] that "No issue has so far arisen as to whether any of the issues in this case are, on account of their connection with Parliamentary proceedings, fit for adjudication by a court at all". Issues of that kind have now arisen, and to make what follows comprehensible I will need to sketch out how that has happened.

Events since August 2014

10. Following my judgment of August 2014, the parties amended their statements of case to reflect the meanings I had found. Mr Yeo amended his Particulars of Claim to substitute those meanings for the meanings of which he had initially complained. At paragraph 10 he retained his complaints, relied on in aggravation of damages, that TNL had failed to report the Standards Report; that it had delayed in providing a transcript to the Parliamentary Commissioner for Standards, who was conducting an investigation; and that it had continued publishing the articles online even after the Standards Report was published.
11. Turning to the Amended Defence, the gist of the defence of justification or truth pleaded by TNL was that the defamatory factual sting that I found the articles to bear could be proved true by reference to Mr Yeo's behaviour at the Nobu lunch on 21 May 2013. The defence of fair comment or honest opinion relied on his conduct at the lunch, together with a limited range of other factual matters, mainly concerned with business activities and jobs held by Mr Yeo outside Parliament. The defence of Reynolds privilege or public interest set out reasons for concluding that the general and the specific subject matter of the articles were issues of public interest, and went on to assert that "The account of how C had conducted himself at the lunch was a matter of considerable public interest and concern."
12. The three defences pleaded by TNL did not obviously involve any impeachment or questioning of anything said or done in Parliament, or give rise to any need for any such conduct to be impeached or questioned. Plainly, the lunch meeting was not a Parliamentary proceeding of any kind. Nor did the particulars of the facts relied on detail any parliamentary activity on which TNL relied to prove its case.
13. As for the claim for aggravated damages, TNL's position remained in the Amended Defence as it stood before my August decision: TNL disputed Mr Yeo's case about the Standards Report; maintained that it could not affect the issues in this action; and asserted that it provided a copy audio-visual recording to the House "in reasonable time". The statements of case therefore gave rise to live issues about the relevance of the Standards Report, but at that stage neither side apparently saw any issue of Parliamentary Privilege arising.
14. In October 2014 Mr Yeo's Reply was served. This was a lengthy and detailed document. I addressed one aspect of it in my second judgment in this case, in February 2015, when I struck out the plea of malice: [2015] EWHC 209 (QB), [2015] 1 WLR 3031. For present purposes however the important aspect of the Reply is paragraph 7, which responds to the Reynolds/public interest defences. This contains passages which explicitly rely on and quote from Parliamentary statements. Paragraph 7.4(1), for instance, responds to TNL's reliance on the fact that previous Sunday Times articles had led to the suspension of two peers. It does so by quoting statements from a Privilege Committee report which were critical of the journalists concerned, who included Mr Calvert. Paragraph 7.4(4) quotes from and relies on a report of the Committee on Standards concerning a joint investigation by The Daily Telegraph and BBC Panorama concerning Patrick Mercer MP.
15. Paragraph 7 of the Reply goes on to refer to the need, under the Editors' Code of Practice of the Press Complaints Commission, for journalists to have a public interest justification before resorting to the use of subterfuge. At paragraph 7.11, noting that "the Defence contains no particulars whatsoever of the alleged decision to use subterfuge", the Reply makes clear that "pending disclosure and/or further information on this point" the Claimant's case is "that the Defendant had no sufficient basis on which to justify the use of subterfuge against the Claimant." Paragraph 7.27 refers to "the journalists' blatant fishing expedition [which] was utterly inconsistent with the tenets of responsible journalism." Paragraph 7.28 alleges that the journalists had "no evidence that [Mr Yeo] had ever given any indication that he would act [as a public advocate in breach of the rules]."
16. The rules of pleading do not call for any response to a Reply. Even in libel actions, which feature more statements of case than many other kinds of claim, a Rejoinder is extremely rare. But TNL responded to the case for Mr Yeo when witness statements were exchanged on 22 May 2015. TNL's statements, of which there were 5, included an account of how and why the journalists came to investigate Mr Yeo, the evidence they obtained that led them to conclude that Mr Yeo might be behaving improperly, and the way in which the justification for subterfuge was approached by them and the Editor, Martin Ivens, and Managing Editor (News), Charles Hymas. Some of the material relied on by the witnesses for this purpose related to Mr Yeo's past Parliamentary conduct.
17. Mr Yeo's team does not appear to have seen this as presenting a problem, initially. Indeed, they served a statement from Mr Yeo which itself contained a large number of passages placing reliance on the Standards Report, or what Mr Yeo had said to the Commissioner. According to the submissions of Mr Browne QC the first time that the claimant's team appreciated that there might be an issue of significance concerning Parliamentary Privilege was when they received a letter from TNL's solicitors on 6 July 2015. This attacked the content of Mr Yeo's witness statement, and parts of his pleadings, and invited his solicitors to agree that specified paragraphs or parts of paragraphs should be struck out.
18. The first objection taken by TNL, which applied to considerable parts of the witness statement, was that it referred to the Standards Report. Such material was said to be irrelevant and inadmissible for four separate reasons: (1) the issue considered in the Standards Report, namely whether Mr Yeo had acted in breach of the Code of Conduct, does not arise in this claim; the published allegation was that he was "prepared to and had offered himself as willing" to act in a way that was in breach of the Code; (2) in any event, it is for the court to adjudicate on the dispute and the views expressed in the Report are immaterial; (3) reliance on Parliamentary proceedings in support of Mr Yeo's case was objectionable in principle, as there would otherwise be unfairness to TNL because Parliamentary Privilege would preclude it from disputing the views relied on; (4) for similar reasons references to alleged delay in the provision of recordings by TNL to the Commissioner were objectionable. The first two of these points had been made at the outset, in TNL's original Defence.
19. The application to amend the claimant's costs budget reveals that over the following days Mr Yeo's solicitors and Counsel incurred nearly £21,000 in costs addressing the Parliamentary Privilege issue and related matters. They responded by letter of Friday, 10 July 2015. Their letter did not address the detailed objections raised on 6 July. Instead, under the heading "References to the Standards Report" the letter expressed surprise that the point had been raised so late. It was said that if it had been raised sooner Mr Yeo could, if necessary, have waived Parliamentary Privilege by virtue of s 13 Defamation Act 1996, which provided so far as relevant as follows:

"13.— Evidence concerning proceedings in Parliament.

(1) Where the conduct of a person in or in relation to proceedings in Parliament is in issue in defamation proceedings, he may waive for the purposes of those proceedings, so far as concerns him, the protection of any enactment or rule of law which prevents proceedings in Parliament being impeached or questioned in any court or place out of Parliament.

(2) Where a person waives that protection—

(a) any such enactment or rule of law shall not apply to prevent evidence being given, questions being asked or statements, submissions, comments or findings being made about his conduct, and

(b) none of those things shall be regarded as infringing the privilege of either House of Parliament."

20. This is the provision that enabled Neil Hamilton MP to sue Mohammed Al Fayed for allegations about his Parliamentary activities often described as "cash for questions". Section 13 was however repealed by the Deregulation Act 2015 with effect from 26 May 2015. Both parties were therefore bound to ensure that their evidence did not offend Article 9, suggested Carter-Ruck. It was proposed that the parties should try to agree the "ground rules" for the application, and invite the court to make a ruling. A schedule of what were said to be the principles was attached to the letter of 10 July.
21. The letter went on:

"Our preliminary view is that much of the potentially problematic evidence can be omitted with little or no effect on the claim or defence. Even without Article 9, good case management would demand that the essential issues in this case are tried by reference to the transcript/recordings of the meeting, the dealings between the parties before and after the meeting and your client's post-Meeting/pre-publication conduct.

Conversely, it seems to us that the evidence which delves into past parliamentary proceedings – such as our client's alleged previous conduct – is simply unnecessary."

22. TNL disagreed with this approach, and issued an application to strike out the parts of the witness statement and statements of case, as it had threatened to do in its letter of 6 July.
23. The presentation of Mr Yeo's case at this hearing has broadly followed the line taken in Carter Ruck's letter of 10 July. The claimant has prepared and submitted a Schedule, prepared by Ms Jolliffe and served on Tuesday 14 July, two days before this hearing, listing passages in the evidence "potentially affected by parliamentary privilege and the admissibility of which requires the establishment of ground rules." The parts of TNL's statements which are labelled in this way are, generally, passages in which the witnesses explain their views of the relationships between parliamentarians and business, both in general and specifically. Some such passages refer to Mr Yeo, and explain why the journalists "suspected [Mr Yeo] in particular might be behaving improperly by profiting from clear conflicts of interest". But no application notice seeking the striking out of any particular passages in TNL's statements of case or witness statements or any other procedural order has been issued. And Mr Browne, while offering illustrations of passages said to be objectionable, has not sought to address the claimant's objections to the TNL statements in detail. Instead, he has invited me, in the absence of agreement on "ground rules", to hear argument and lay down rules as to Parliamentary Privilege.
24. The justification for that approach which is offered by Mr Browne is twofold. First that this matter, though very important, is really a matter of case management. Secondly, that Mr Yeo's team wished to avoid a protracted and costly examination of the detail of some 200 pages and more of pleading and witness statement. It would be better, suggests Mr Browne, for ground rules to be established, after which junior Counsel could agree on the application of those rules to the particular documents. I do not consider these to be adequate reasons for a failure to identify with precision, in an application notice, what it is that the court is being asked to do.
25. I agree with Mr Millar's primary position, which is that it is not appropriate for the court to be asked, on short notice to TNL, to embark on an attempt to identify the relevant principles or ground rules. The fact that these issues fall under the umbrella term of "case management" does not justify departure from these ordinary procedural requirements, which serve an important purpose. As Mr Millar points out, these are delicate issues that depend on the detail rather than broad propositions. The claimant's Schedule, though helpful, is not adequate for the purpose. The nature of the objection raised, or potentially raised, to the passages of evidence listed in the Schedule is identified only as "Parliamentary Privilege", without further elaboration.
26. Mr Millar has nonetheless outlined the nature of TNL's response to the contention on behalf of Mr Yeo. In summary, it is that the passages in TNL's witness statements that appear to be objected to are not objectionable on Parliamentary Privilege grounds or, if they are, some issues of very substantial constitutional importance arise. Mr Millar makes the following submissions:

i) Reference to business interests developed by Mr Yeo or other parliamentarians cannot engage Article 9 as these are not proceedings in Parliament. Such activity does not "form part of, nor is it incidental to, the core or essential business of Parliament, which consists of collective deliberation and decision making": R v Chaytor [2011] 1 AC 684 [62] (Lord Phillips).

ii) It is not a breach of Article 9 for a journalist to hold an opinion about parliamentary conduct, or to express such an opinion in print, online, in a broadcast, or otherwise. As Lord Browne-Wilkinson said in Pepper v Hart [1993] AC 593, 638: "Plainly article 9 cannot have effect so as to stifle the freedom of all to comment on what is said in Parliament, even though such comment may influence Members in what they say."

iii) Nor can it infringe Article 9 for a journalist to give evidence in defence of a libel claim, explaining why such an opinion was held. That is the purpose of the evidence here. Its function is, essentially, to rebut the case pleaded by the claimant in his Reply, by explaining the justification for investigating Mr Yeo, and using subterfuge in the process. That is not a process which "questions" any parliamentary proceeding.

iv) If that is wrong, then Parliamentary Privilege is in conflict with the requirements of a fair trial and/or it represents an interference with freedom of expression that requires, and may not have, a proportionate justification. It is established that Parliamentary Privilege may so limit what can lawfully be investigated in a libel action that proceedings must be brought to a halt by a stay, to avoid an unfair trial: Prebble v Television New Zealand [1995] 1 AC 321 (PC). That, however, may not suffice to avoid a breach of Article 10 of the Convention. The threat or prospect of proceedings which may or may not be stayed, with all the costs involved, may represent an unjustifiable interference with free speech. Furthermore, a stay leaves the publisher unable to vindicate its position. Thus, Parliamentary Privilege represents an immunity which may be in conflict with the Convention.

27. These are clearly important issues, which might arise, but are plainly unfit for disposal on short notice. They are certainly not ripe for decision on this pre-trial review, in response to Mr Browne's invitation to lay down ground rules. I suspect that they may not need to be resolved in this action at all, because a rather simpler point has come to the fore in the course of the hearing. This is that it is hard to see how Mr Yeo can simultaneously (a) object that it is "unnecessary" to "delve" into Mr Yeo's past conduct and (b) maintain, as he presently does in his Reply, that TNL had no basis for engaging in the subterfuge it employed. He cannot, fairly, stand by his pleaded case yet require on grounds of Parliamentary Privilege, case management, or any other grounds that TNL be prevented from responding to that case, in a relevant and proportionate way.
28. In these circumstances I have declined Mr Browne's invitation to hear argument on ground rules, and suggested that Mr Yeo's team consider how to proceed. There is a great deal to be said for the argument that this case can fairly be tried by reference to the issues identified in Carter-Ruck's letter of 10 July that I have quoted above. For my part, I agree that there is no real need to go beyond those issues. But those are not the issues raised by the statements of case as they stand. Having taken the view they have, Mr Yeo's team may conclude that the appropriate course is for the Reply to be trimmed down so as to make it unnecessary for TNL to explain and justify the decision to investigate Mr Yeo, or to use subterfuge for that purpose. If they do, TNL will need to consider what consequential amendments are appropriate to its witness statements.
29. Alternatively, it is open to Mr Yeo to issue an application to strike out passages in TNL's witness statements on the grounds of Parliamentary Privilege. In that event I would expect to see not only a precise identification of the passages under attack but also a detailed explanation of the reasoning behind each attack. It may be that some combination of these two courses of action is open to Mr Yeo. At all events, it is clearly important to ensure that these issues are dealt with promptly, so I accept Mr Millar's invitation to set a short time limit for the issue by Mr Yeo's team any application arising from this issue, and my order sets a time limit of 2 working days.

The claim in respect of the article of 23 June 2013

30. TNL's application notice seeking the dismissal of this claim was issued on 13 July 2015 for hearing on 16 July. It sought dismissal pursuant to CPR 3.4(2)(a) and/or (b) and/or summary judgment pursuant to CPR 24.2. The basis for the application can be summarised as being that Mr Yeo has no real prospect of establishing that the publication of this article represented a real and substantial tort.
31. The application faced some valid procedural objections, as the requirements of CPR 24 plainly had not been complied with, and the Amended Particulars of Claim clearly disclose a reasonable cause of action. However, evidence is admissible in support of an argument that a claim is an abuse of the court's process, and in the end Mr Browne has addressed the application on its merits, as shall I.
32. The article of 23 June 2013 was not about Mr Yeo. It focused on a separate alleged Parliamentary scandal. The key passage in the words complained of is in the paragraph which has been numbered [8] for ease of reference:

"Three lords and a select committee chairman are being investigated by the parliamentary authorities after The Sunday Times revealed that they were selling themselves as parliamentary advocates for paying clients."

33. Mr Millar reminds me of what I said about this claim at [130] of my August 2014 judgment:

"The article did not name Mr Yeo but his case is that he was identified as the "select committee chairman" referred to in para [8]. In support of that contention Mr Yeo says that there were readers of this article, he says a "large but unquantifiable number", who had already seen the articles of a fortnight earlier and who would therefore know that it was he who was being referred to."

34. Mr Millar emphasises that the class of readers to whom the defamatory meaning complained of could have been conveyed is a limited one. It comprises readers who had read the whole of the earlier articles, and remembered their contents when reading the "snippet" in the 23 June article. He points out that, as I observed in the same paragraph of my judgment, the allegation that there was a "large" number of such readers "is not admitted by TNL and is a matter that would require proof at a trial." Paragraph 8b of the Amended Defence puts Mr Yeo to strict proof that there was a substantial number of such readers, so that some substantial publication of this defamatory allegation is made out.
35. Mr Yeo's witness statement says, at paragraph 99:

"Although I was not named, the article stated that 'Three Lords and a select committee chairman were being investigated…' It would have been obvious to anyone who read this, from the extensive publicity about the original allegations that I was the "select committee chairman" to which this article referred".

36. Mr Millar describes this as an "assumption" which, he submits, provides a wholly inadequate basis upon which to establish the series of propositions of fact required. Mr Millar submits that this is the only evidence on the point, and that absent cogent evidence on identification, the claim relating to this article has no realistic prospect of success and the relevant paragraphs should be struck out of the Particulars of Claim, along with paragraph 99 of Mr Yeo's statement.
37. I do not consider it would be right to dismiss this claim on this basis. A claim should only be struck out if it is plain and obvious that it cannot succeed, and cannot be saved by amendment. Summary judgment should only be granted if it is fanciful to suppose the claim might succeed. On this issue I accept Mr Browne's primary argument, which is that it is realistic to view the claim as it stands as one that may succeed, on the basis of inference.
38. The essential issues for determination at a trial, on the pleaded case as it stands, will be (a) how many of those who read the Sunday Times article of 23 June 2013 had read the articles of 9 June, and recalled enough of what had been published then to identify Mr Yeo as the "select committee chairman" referred to; (b) is the number of such readers sufficient to make the publication on 23 June a real and substantial tort? I do not accept that in order to sustain such a case it is necessary for a claimant to adduce evidence from readers in the relevant class. That may be so, if the inference that would otherwise have to be drawn is an inherently improbable one as, for instance, in Fullam v Newcastle Chronicle & Journal Ltd [1977] 1 WLR 651 (CA). But I see no reason why in this case the court may not proceed by way of inference, in the absence of evidence from such readers. This is a national newspaper with a very substantial circulation; it is well-known that newspaper readers are reasonably loyal to a given title; the articles of 9 June were prominent; and only a fortnight passed between the two articles. The inference cannot be said to be fanciful.
39. Mr Browne has added some submissions which go beyond the parameters of the pleaded case as it stands. He argues that the 9 June article not only appeared in print but also online, and its online publication was continuous. Thus, there will have been online readers who read that article much less than 2 weeks before reading the article of 23 June. This is not in dispute, but it is not yet pleaded in support of the reference innuendo. Mr Browne also argues that there had been extensive republication of the sting of the 9 June article elsewhere in the media, which will have extended the class of readers of the 23 June article who knew the identity of the "select committee chairman" referred to. It is true that in aggravation of damages it is alleged, in paragraph 10.4 of the Amended Particulars of Claim that the sting of the earlier article was republished in whole or in part "in virtually every newspaper and by every broadcaster in the UK and beyond". But the details are not given (it was said in the statement of case itself that it was not proportionate to do so at that time) nor are they in evidence. Mr Millar submits that it is unclear whether these republications will have conveyed the information necessary to identify Mr Yeo, and to carry the meaning complained of. In the circumstances I do not rest my decision on these unpleaded points. Mr Yeo's team can of course consider whether they wish to re-amend the Particulars of Claim to rely on them.

Mr Yeo's witness statement and other parts of his statements of case

40. I have described above the nature of TNL's objections to the content of Mr Yeo's statement and pleadings. By the time of this hearing extensive concessions had been made on Mr Yeo's side. It was accepted, in particular, that it is not legitimate for Mr Yeo to rely in support of his case on (a) what he said to the Commissioner or to the Standards Committee or (b) the findings of the Commissioner or the Standards Report, and that the many references to such matters that are contained in his statement must be removed.
41. It is not necessary, in order to reach that conclusion, to enter into debate about the reach of Parliamentary Privilege. Evidence of what Mr Yeo said to the parliamentary authorities in the form "As I said to the Commissioner ..." is objectionable as impermissible self-corroboration, regardless of whether it would also infringe Parliamentary Privilege, or be unfair because a response would do so. As for evidence of findings made by the Commissioner or in the Standards Report, this is inadmissible according to well-settled principles recognised in Hollington v Hewthorn [1943] KB 587 and the majority in Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1: see in particular [28]-[33] [79], [103], (Lord Hope), and [130]-[133] (Lord Hutton). The issues in this case must be resolved by the court, and not by reference to what Mr Yeo said to parliamentary bodies, or the findings made by those bodies.
42. Some further concessions have been made in the course of argument at the hearing. Those concessions include the removal of a section of the witness statement relating to a falling out between Mr Yeo and Paul Staines, aka "Guido Fawkes", which was rightly accepted to be irrelevant. But there remains a small number of areas of dispute about the admissibility of passages objected to by TNL. I have identified orally to the parties my conclusions on those issues, and given brief reasons for those conclusions. I will summarise them shortly.

i) Para 89. Objection is taken to the inclusion of a complaint of unreasonable delay by TNL in providing a copy of the video recording of the Nobu lunch to the Standards Commissioner. Mr Millar points out that TNL's case is that it acted with reasonable speed. He submits that TNL has a case which could not be advanced without infringing Parliamentary Privilege, as it would involve a critical examination (in both senses) of the conduct of Mr Yeo in instigating the investigation and of the dealings between TNL and the Commissioner. He cannot go into further detail to support this argument without infringing privilege, he submits. The argument is that it is unfair to allow Mr Yeo to make this complaint, if TNL would be prevented or hampered by privilege from defending itself. I accept that submission. As Lord Woolf MR said in Hamilton v Al Fayed [1999] 1 WLR 1569, 1586G, the courts cannot and must not pass judgment on any parliamentary proceedings. See also Stanley Burnton J in Office of Government Commerce v Information Commissioner [2010] QB 98 at [58]. In deciding to strike out this passage, and the corresponding pleading, I bear in mind proportionality. We are concerned here with complaints made in aggravation of damages, in a case where, if the claim succeeds, there will be substantial damages awarded.

ii) Para 90 makes a similar complaint, of deliberate withholding of evidence from the Commissioner. That must be struck out for the same reasons.

iii) TNL objects to a number of passages in a section of the witness statement that deals with whether Mr Yeo "coached" a witness to a Parliamentary Committee, one John Smith. The fundamental nature of the objection taken is that Mr Yeo does not complain of any defamatory allegation of that nature, there is accordingly no pleaded defence in that regard, and this section is irrelevant prejudice. I have concluded as follows:

a) Para 77: deletion of the first and last sentences is conceded. The other material is of little assistance, perhaps, and to some extent repetitive, but not so prejudicial that it is necessary to strike it out.

b) Para 78: the objection that has not been conceded is to Mr Yeo's statement that if "the coaching allegation" had been put to him he would have denied it, but it was not mentioned until too late. Since he does not complain of such an allegation this is irrelevant. He complains elsewhere in his statement of being given late notice of the allegations of which he does complain.

c) Para 80: the first three sentences deal with the merits of a complaint about "the coaching allegation" and the way it was put to TNL in correspondence. Mr Browne submits that the facts related here are true and unobjectionable. They are however irrelevant and should be removed.

iv) The part of paragraph 10.2 of the Amended Particulars of Claim that corresponds to Mr Yeo's paragraph 89 must be struck out, for the reasons given above.

Revision of Mr Yeo's costs budget

43. In February 2015 I approved the parties' costs budgets in reduced sums: [2015] 1 WLR 3031 [52]-[73]. On Friday 10 July 2015 Mr Yeo's solicitors served a revised Costs Budget, and on Monday 13 July 2015 they issued an application for approval of the Revised Budget, seeking to add various sums. Some of those items have since been abandoned. One has been agreed and approved by me: an additional £450 for trial. A much more substantial item amounting to £36,120 in total is however disputed.
44. The item is described in the Revised Budget in this way: "Contingent Cost A: Considering impact of parliamentary privilege and considering and making amendments to statements of case and witness evidence of both parties." A breakdown appears on page 5 from which it appears that, as noted above, a total of nearly £21,000 had been incurred in this connection by the time the budget was signed. This was split more or less equally between solicitors' and Counsel's fees. A further £15,440 was then estimated as future costs.
45. On behalf of Mr Yeo it is submitted that I can and should approve this budget variation pursuant to PD3E 7.6, which provides, so far as relevant, that

"Each party shall revise its budget in respect of future costs upwards or downwards, if significant developments in the litigation warrant such revisions. … The court may approve, vary or disapprove the revisions, having regard to any significant developments which have occurred since the date when the previous budget was approved or agreed."

46. The objections raised by TNL give rise to the following issues:

i) Can PD3E 7.6 be employed to obtain approval for costs that, by the time of the revised budget, are incurred costs? Paragraph 7.6 itself refers to "future costs", and PD3E 7.4 provides that the court "may not approve costs incurred before the budget".

ii) Has there been a "significant development in the litigation"? TNL submit that there has been none, and that the approach to Parliamentary Privilege adopted on Mr Yeo's side has been both tactical and misconceived.

iii) To the extent that there are costs, incurred or future, which it would be reasonable for the claimant to recover what mechanism is available, other than PD3E 7.6? The answer is of course relevant to issue (i) above. Mr Millar identifies two alternative routes:

a) CPR 3.18(b) (a Court may depart from a budget where "there is good reason to do so") or

b) PD3E 7.9 ("If interim applications are made which, reasonably, were not included in a budget, then the costs of such interim applications shall be treated as additional to the approved budgets.")

47. It seems to me that Mr Millar is right to submit that PD3E 7.6 is not an apt vehicle for obtaining the court's approval for costs incurred before the budget. The wording of that paragraph and of PD3E 7.4 point firmly in that direction. In support of his submission to the contrary Mr Browne has reminded me of what I said at [71] of my February judgment:

"If work identified as a contingency is included in a budget but not considered probable by the court no budget for it should be approved. If the improbable occurs, in the form of an unexpected interim application, the costs will be added to the budget pursuant to PD3E 7.9, unless the matter involves a "significant development" within para 7.6^[1] in which case, if time permits, a revised budget should be prepared and agreed or approved."

48. I still take that view, but I do not think it supports Mr Browne's position. The key words in that passage are "if time permits". If the unexpected happens, and time does not allow for a revised budget to be approved before costs are incurred, then there will often, perhaps usually, be an unexpected interim application and PD3E 7.9 will apply. The fall-back position is CPR 3.18(b).
49. Mr Browne points out that this puts a high premium on swift action to prepare a revised budget. That must be right, but I do not see it as a good reason to adopt a different interpretation. Take this case. The issue is said to have arisen on 6 July. It has not been made clear to me why a revised budget could not have been prepared sooner than 10 July. There is some force in Mr Browne's submission that the analysis I have set out is unsatisfactory for an individual paying privately, such as Mr Yeo. It leaves him in undesirable uncertainty about the recoverability of a large slice of cost until after the assessment stage. But I do not think that leads to a different conclusion. As I have said, such a litigant will normally have an unexpected interim application on which to peg reliance on PD3E 7.9. In any event the wording of the Practice Direction is too clear to allow me to accept that incurred costs can be approved in this way.
50. In any event, I am not persuaded that there has yet been a "significant development in the litigation" within the meaning of PD3E 7.6 which would justify the approval of the additional costs incurred (assuming for this purpose I am wrong in my above conclusions) or the additional costs forecast in the revised budget. The "significant development" in the litigation identified by Mr Browne is the repeal of s 13 of the Defamation Act 1996 in May 2015, and the consequent need to address issues of Parliamentary Privilege when this could otherwise have been managed by a waiver on Mr Yeo's part, pursuant to that section. I find it hard to see the repeal of the section as a development of significance for the action. There is no evidence nor is there any indication that any thought had been given to Parliamentary Privilege, or waiver pursuant to s 13 before 6 July 2015. It is not a question of whether the claimant's legal team were aware of the repeal of the section, which had escaped many of us, but whether the prospect of reliance on it had at any point been a real consideration.
51. In any event, as Mr Browne's submissions implicitly acknowledge, the repeal of the section is not itself a development in the litigation, but something separate from it. I do not doubt that between 6 and 10 July Mr Yeo's legal team did give attention to Parliamentary Privilege and the issues identified in the Revised Budget. But their approach does seem to me to smack of tactical maneouvering. The probability seems to me to be that one significant reason they paid attention to Parliamentary Privilege is that they had to consider the objections taken to Mr Yeo's statement, which they realised were on analysis justified. That cannot be a significant development, let alone one justifying a budget increase.
52. The second main reason, in my assessment, is that they had identified aspects of TNL's evidential case that they saw as undesirable from their client's perspective. I can see that there is a good deal in the TNL statements that is, in the abstract, not necessary for the fair resolution of this claim. But as explained above, the evidence has been put forward in response to Mr Yeo's Reply. Provided it is relevant and proportionate to that purpose he cannot complain. I do not consider this to be a "significant development" which requires significant expenditure on issues of Parliamentary Privilege. Whilst recognising the desirability of cutting the issues down, I am far from persuaded that the proper means of doing so is to engage in an elaborate or any debate about the ramifications of Article 9, rather than to revisit and cut down the case pleaded in the Reply.
53. It may yet be that some revision in the budget of one or both parties may in future be shown to be justified in order to deal with issues of Parliamentary Privilege, but at present I am not persuaded that I have been presented with any justification for approving the revision put forward on that ground, pursuant to PD3E 7.6.

Note 1   I have corrected a typographical error in the original.    [Back]