Edmund Patrick Jordan v MGN Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mann |
| Judgment Date | 24 July 2017 |
| Neutral Citation | [2017] EWHC 1937 (Ch) |
| Docket Number | Case No: HC-2014-002255 |
| Court | Chancery Division |
| Date | 24 July 2017 |
[2017] EWHC 1937 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Rolls Building, 7 Rolls Buildings
Fetter Lane, London EC4A 1NL
Mr Justice Mann
Case No: HC-2014-002255
Simon Browne QC, David Sherborne and Julian Santos (instructed by Hamlins LLP) for the Claimant
Richard Spearman QC and Richard Munden (instructed by Reynolds Porter Chamberlain LLP) for the Defendant
Hearing date: 20 th July 2017
Judgment Approved
Introduction
The application which I have to decide is one which was made on the eve of an intended trial in which Mr Jordan, a well-known person in Formula 1 circles, sought remedies in respect of phone hacking and other unlawful activities said to have been carried out by the defendant's newspapers, some of which are alleged to have resulted in the publication of articles based on or containing private information gathered unlawfully. The matter was due for trial, along with 3 other cases, in the week commencing 3rd July 2017, and the actual first hearing day was eventually fixed for Wednesday 5th July. However, at the end of the preceding afternoon, in circumstances set out below, the claimant made the present application which sought to bring the action to an end by a determination that the defendant's conduct had become abusive of the process, or a determination that there was or could be a valid compromise, or that the claimant was entitled to accept, and did accept, a very old Part 36 offer. Since it became plain that a trial would be unnecessary the actual trial date was vacated and arrangements were made for the hearing of this application.
I am the managing judge for a large raft of similar cases; all those cases are managed by me to trial, and I conduct any trials. Accordingly, the application was made to me.
The short background to it is as follows. The action was started by a claim form issued on 12th August 2014. During the course of its progress to trial there were a number of Part 36 offers and a number of Without Prejudice Save As To Costs ("WPSAC") offers. The first was a Part 36 offer on 24th September 2014. 2016 saw a number of WPSAC offers by the defendant, none of which were accepted, or indeed responded to as such, by the claimant. There was a particular flurry of settlement activity over the period leading up to the trial in this year, and particularly over the preceding weekend. Based on that activity, at the very last minute (almost literally) the claimant sought to say that there has been agreement on everything other than costs, and that it would be an abuse to allow the proceedings to go on; alternatively, that there was a binding agreement. In support of that case counsel put before me all the Part 36 offers and WPSAC material notwithstanding that the case had technically not yet come to an end. If those argument failed then the claimant accepted a very historic Part 36 offer which was still open.
The application notice taking these points (dated 4 th July 2017) sought the following relief:
"(a) Judgment be entered in the Claimant's favour for £90,000, with the incidence and amount of costs to be determined by the Managing Judge, on the basis that the figure for compensation is agreed, and in the circumstances it would be an abuse of the Court's process for the Defendant to insist that the claim proceed to a lengthy and costly trial.
(b) Alternatively, a declaration that the Claimant is entitled to accept the Defendant's Without Prejudice Save as to Costs offer of £90,000 compensation plus £90,000 in costs made on 30 June 2017.
(c) In the further alternative, a declaration that the Claimant is entitled to accept, and has accepted, the Defendant's Part 36 Offer of 9 June 2017, and that the Defendant pay Claimant's costs to date.
(d) In the further alternative, a declaration that he Claimant is entitled to accept, and has accepted, the Defendant's Part 36 Offer of 24 September 2014, and that the Defendant pay be Claimant's costs to date."
The scope of the application dwindled over the course of its short life and the points put before me by Mr Simon Browne QC, who appeared for the claimant, were much more limited than the application made by the application notice. He had abandoned point (c) in his skeleton argument served 6 days before I heard the application, and when he advanced the case before me he abandoned all the others except those arising out of point (d). He no longer sought to have a judgment of £90,000 in his client's favour. He made an application solely on the footing that his client had accepted the September 2014 Part 36 offer. His application was that he should not have to pay the costs after the Relevant Period relating to that offer, and indeed his clients should have the costs. Alternatively, if his client was obliged to pay the costs then he resisted the claim of the defendant that they should be paid on the indemnity basis.
His submissions that he should have his costs for the period after the initial acceptance is a striking one, based (as was his resistance to paying indemnity costs) on submissions which were similar to those which would have been advanced under the abuse paragraph (paragraph (a)) of the application notice. In order to resolve the issues it is necessary to set out a large amount of detail relating to the Part 36 and WPSAC dealings in this case, in the context of the key steps in this action.
The history of the action and of the negotiations for settlement
In the narrative that follows Hamlins were and are the solicitors to the claimant and RPC were and are solicitors to the defendant.
As appears above, the claim form was issued on 12th August 2014 specifying the value of the claim at £100,000. Particulars of Claim followed on 12th September 2014, relying on a pattern of phone hacking across a period and on 5 specific newspaper articles said to have derived from unlawful information gathering. This valuation of the claim at £100,000 in the claim form acquires some significance in the light of subsequent events.
Mr Jordan, like all or practically all of the claimants in the phone-hacking litigation, has instructed his lawyers on the basis of a conditional fee agreement ("CFA"). He has also had the benefit of ATE insurance to cover adverse costs (and, I think, disbursements). The premium under that policy accrued in instalments, the last of which was due shortly before the trial.
The action joined a growing cohort of similar claims which are all managed to trial by me as managing judge. There have been many dozens of such claims and most have settled at various stages prior to a trial. Every so often a batch of unsettled cases was selected for trial, and as their trials approached most of them settled. This has become a familiar pattern. The cohort of cases has been managed at a series of Case Management Conferences. Eventually Mr Jordan's case emerged as one of a batch of cases headed for trial in the week starting 3rd July 2017.
I revert to the history. Not long after the Particulars of Claim, on 24 th September 2014, RPC made a Part 36 offer. The letter is also headed "Without Prejudice Save as to Costs" but all parties have treated the letter as a proper Part 36 offer. It sets out all the usual consequences of acceptance and a failure to accept it. It explained why it was not possible to accede to some of the claims in the Particulars of Claim for reasons which do not matter, and then made an offer of damages of £15,000 and offered an undertaking not to intercept voicemail messages or to re-publish the articles complained of in the action (then numbering 5). In a letter headed "Without Prejudice Save as to Costs" dated 14 th October 2014 Hamlins stated that their client was unable to accept MGN's offer for short reasons given in that letter. This is the Part 36 offer which Mr Jordan has now decided to accept.
On 31 st December 2014 RPC made a further Part 36 offer in the same terms as the September offer save that the damages offer was increased to £20,000. That offer was not accepted.
2015 was devoid of settlement activity. On 21st May 2015 I delivered judgment in Gulati v MGN Ltd [2015] EWHC 1482 (Ch). This provided guidance for assessing damages in future cases.
On 17th September 2015 MGN provided some early disclosure in accordance with a regime established for these cases. That would have assisted Mr Jordan in assessing the merits and strength of his claim, but was not all the disclosure to which he would be entitled in the action. The information comprised call data, invoices and articles written about him. On 10th November he served amended Particulars of Claim which increased the number of articles sued on from 5 to 26.
The next piece of settlement activity was a further WPSAC offer by MGN on 15 th January 2016. This letter offered damages of £45,000, contractual undertakings not to re-publish articles and not to intercept voicemail, a public apology by way of a Statement in Open Court, and payment of Mr Jordan's reasonable costs up to the date of the acceptance of the offer. The last day for the acceptance of the offer was 28 th January 2015. The letter ended by saying:
"If your client is prepared to accept the terms outlined in this offer on the condition that other remedies are provided by MGN please let us know what those remedies are."
There was no apparent response to that letter.
By a WPSAC letter dated 24 th February 2016 RPC offered damages of £30,000, contractual undertakings not to intercept voicemail messages, a public apology by way of a Statement in Open Court and costs up to the date of acceptance. This offer was expressed to be open until 3 rd March 2016. There was no response to it.
A letter from RPC dated 24 th...
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Svetlana Lokhova v David Longmuir
...proper basis for inferring such unreasonable conduct, at least if the failure is itself inadequately explained: see Jordan v MGN Ltd [2017] EWHC 1937 (Ch) [72] (Mann J) and Optical Express (above) at [51]. In the present case, however, the claimant has provided an explanation, which can be ......