Selvaratnam Suresh v Abdul Samad and Others

At this hearing I have to reach decisions on some issues as to costs and other matters consequential on decisions made by me and by other judges who have dealt with this libel action on and before 27 January 2017 and, to a limited extent, in relation to recent decisions made over the last few days. The hearing is also concerned with costs management and case management for the future.

The background can be briefly summarised. The claim arises from the publication of videos on YouTube and Facebook which impugned the claimant's conduct as chairman and trustee of a charity, the Oriental Fine Arts Academy of London ("OFAAL"). The defendants are all alleged to bear in different ways responsibility for the publication of those videos. The case first came before me on 27 October 2016, when I heard an adjourned application by the claimant to strike out the defences that had been filed by the three defendants or for summary judgment on his claims against them. The defendants were at that stage unrepresented.

After hearing from both sides, I gave summary judgment in the claimant's favour on a number of issues but identified some as fit for trial. I adjourned the remainder of the claimant's application, allowing the defendants to cross-apply for permission to amend their defences. The effect of those decisions was to leave these issues as issues for trial on the statements of case as they then stood: first, the responsibility of the first, second and third defendants for the publication of the videos on YouTube; secondly, whether the third defendant's publication of the video or videos on his Facebook page caused serious harm to the claimant's reputation within the meaning of section 1 of the Defamation Act 2013; and thirdly, if this arose, damages and other remedies. My judgment on those matters was handed down on 31 October 2016.

The defendants took advantage of the opportunity to apply for permission to amend. On 18 January 2017, I heard their applications, which had been filed in time and in accordance with directions that I gave in October, for permission to plead the affirmative defences of truth and public interest provided for by sections 2 and 4 of the 2013 Act, together with the remainder of the claimant's application. On this occasion the defendants were represented by counsel, Mr Richard Owen-Thomas, acting under the Bar's Public Access Scheme. He had prepared draft Defences asserting and particularising the statutory defences. I reserved judgment

I handed down a written judgment on 27 January 2017, with no attendance from the parties. So far as truth is concerned, I dismissed the defendants' applications and granted summary judgment on the issue in favour of the claimant. I refused the applications of the first and second defendants to amend to plead a public interest defence; but I granted a further adjournment so far as the third defendant was concerned to allow him to attempt to reformulate his defence of public interest. At paragraph [67] I said as follows:

"The third defendant's position was different [from that of the first and second defendants]. He had not been involved in the facts in the way that the first and second defendants had. His role as the interviewer was closer to the role of the media, reporting the allegations of others. The draft Amended Defence does not reflect this, and does not as it stands set out a reasonable defence of public interest on his behalf."

I gave reasons for that conclusion. I explained that I could not give the third defendant permission to amend in the form of the then draft, but that I could not reach the conclusion either that he would be bound to fail on the issue at trial. I therefore said I was prepared to allow time for a recast defence of public interest to be prepared. I gave an indication as to what it should contain.

The judgment ("my January judgment") had been circulated in draft beforehand, it seems on or before 23 January. It was known before the 27 ^th that I would make the orders that I did. They included (apart from giving effect to the principal decisions) directions for what was called a further adjourned hearing at which I would consider the appropriate costs orders, any application for permission to appeal and any application by the third defendant for permission to amend to plead public interest. The order also provided that costs and case management would be addressed at this hearing.

There have been many delays between then and now, and they have included attempts by the defendants to defer or adjourn the further adjourned hearing. To some extent those attempts have succeeded, but the most recent efforts have failed for reasons that have been explained in email correspondence and, in some detail, in a written order and ruling that I made on Wednesday, 10 May. There is no need to repeat the reasons now. The result is that today, some three and a half months after my order, that further adjourned hearing has now at last taken place.

There are four or perhaps as many as five main issues for consideration. The first is whether the third defendant should be granted permission to amend his defence by adding a plea of public interest; secondly, there are questions of costs relating to applications to and hearings before Master Leslie, Jay J and myself between June 2016 and today; thirdly, case management; fourthly, costs management; and fifthly, if it arises, any application to me for permission to appeal my decisions. I propose to deal with each of those matters in turn, but there are some preliminary matters I should mention.

First, non-compliance: some of the directions I gave as to preparation for this hearing have not been complied with. My order of 27 January directed at paragraph 8 that

"8. Any further draft amendment on behalf of the third defendant must be filed and served not less than seven clear days before the further adjourned hearing".

That has not been done. The first anyone saw of such a document was at 8.33 am yesterday, when the third defendant emailed the draft to my clerk. That email was not (or not evidently) copied to the claimant's representatives, who I understand did not see the draft until after that. The email stated that there was an excuse for the delay and that there was evidence to prove it, but no evidence was provided at the time. I shall come to what that evidence has been.

Further, my order of 27 January directed as follows:

"12. Short skeleton arguments not longer than ten pages must be filed and exchanged not less than 24 hours before the further adjourned hearing, identifying the orders sought and the arguments in support."

I received a skeleton argument from Mr Santos, who represented the claimant, at around 10.40 am yesterday. That was no doubt delayed a little by the late receipt by him of the third defendant's draft defence. It is apparent on the face of the skeleton that it was updated to reflect that, by adding a further five paragraphs at least. There has been no skeleton argument of any kind at any stage from any of the defendants.

These failings are by...