Charles Elphicke v Times Media Ltd (formerly Times Newspapers Ltd)

This is my last judgment. It arises from my unaccountably long service as a judge after the equally unexpected reality that Her late Majesty saw fit to appoint me despite my flaws, declaring (as all Warrants appointing Masters do), that I was ‘right and trusty’.

I have been most grateful to both sides for the courtesy and competence of their representation and argument, in which Mr Elphicke represented himself in person very ably and the Defendants were represented by counsel Mr Silverstone, also very ably.

Those who know this judge will be aware that she is a long-time Samuel Beckett enthusiast, and one of his finest works is Krapp's Last Tape, a self-referential, recursive work in which the eponymous Mr Krapp, who savours the word ‘spool’ greatly, reviews previous voice tapes in which he charted his life, hearing himself as he ages over the years and who retreats into recollection of his past. This is my ‘Last Tape’ though I suspect neither it nor I will ever aspire to the standard of Krapp.

I was assisted, not by spools, but by transcripts of digital recordings of the dates on which this court sat on these applications spread over some time, and so have had the benefit of re-reading the entirety of the hearings when writing this judgment.

Points arising in this judgment. This judgment concerns the discretion to disapply rule 38.6 (effect of discontinuance) and connected matters as well as principles relating to interim payments. The novel point arises as to reliance on misconduct by a party happening after the date of discontinuance as a ground for disapplying the ‘default’ costs rule that the party who discontinues pays the other side's legal costs, and generally questions arise as to how to exercise discretion in this area.

Also of central relevance are two very important duties essential to the administration of justice which parties owe to the court and to each other. The first is the duty to preserve evidence when on notice of proceedings or likely proceedings ( CPR 31 Practice Direction 31B) and the second is the at least equally important principle that there is an implied undertaking to the court not to use witness statements or affidavits served in proceedings for a collateral purpose ( CPR 32.12).

Additionally at the end of this judgment I consider Dispute Resolution in the context of legal costs between the parties (under ‘Costs’ later in this judgment) following recent case law such as Churchill v Merthyr Tydfil BC [2023] EWCA Civ 1416 and my learned former brother judge Master Thornett in Jenkins v Thurrock Council [2024] EWHC 2248 (KB). I make observations on the role of ADR (or DR as the Master of the Rolls would prefer) in the context of legal costs. There I make an order which extends time for detailed assessment to enable ADR over costs. The expending of large sums on Detailed Assessment as a form of collateral litigation is a luxury few parties can, or wish, to make use of but of equal importance is the use of court resources at a time when courts are busy.

A final and somewhat unusual factor is my consideration of recusal of my own motion which I shall deal with shortly below.

The underlying case

The underlying case (the defamation claim to which this case relates and which was managed by me throughout over several years) included the Defendant's argument in its defence about the role of the Press in the public interest investigating rape allegations and publishing them in respect of a then sitting Conservative MP (Mr Elphicke). That point played some part in argument on these applications because it goes to the question of the manner in which the case was fought and the reasonableness of certain actions taken by those involved in the course of pre-action steps. For example the Defendant refused to agree to settle the claim on the basis of a statement that the Claimant was innocent of rape, which the Defendant considered would be unethical, and the Claimant via lawyers made it plain there would be ‘meticulous’ cross examination of the complainant which would likely cause distress. The case was fought robustly on both sides on the basis of a defence both of truth and of publication in the public interest, and of innocence on the part of the Claimant.

Consideration of Recusal

Behind this case, as I have noted, we have a woman who alleged rape and whose centrality must not be diminished.

The position has been expressed publicly by current and former Ministers of the Crown and by some in the Law, during the currency of this case, that people who are transsexual are the embodiment and expression of a ‘ transgender ideology’ (sometimes ‘ gender ideology’), or that steps must be taken to protect women from transsexual people by isolation or segregative legal measures in...