The judge whose decision on meaning in the libel battle between former Tory co-treasurer Peter Cruddas and the Sunday Times was partially overturned by the Court of Appeal has rejected an application by the newspaper that he should let another judge conduct the trial of the case.
In a judgment handed down on 26 June ([2013] EWHC 1791 (QB)) Mr Justice Tugendhat said he had concluded that a fair-minded and informed observer would not conclude that, in the circumstances of the case, the tribunal was biased.
He also ordered that the trial, which he is to conduct without a jury, should start on June 25, although he had been told that John Kelsey-Fry QC, who is due to represent the newspaper’s publisher, Times Newspapers Ltd, at the trial, would not be available before July 22.
He rejected the suggestion put by Heather Rogers QC, for the newspaper, that the trial should be listed to start on July 22, saying that that would allow only eight working days before the legal term ended on July 31, which he believed would be insufficient to complete the oral hearings.
Mr Cruddas is suing the Sunday Times over three articles published in March last year after he had a meeting with two of the newspaper’s undercover journalists, who were posing as representatives of Middle Eastern investors with funds in an account in Liechtenstein.
He is suing both the newspaper and journalists Jonathan Calvert and Heidi Blake for defamation and malicious falsehood, claiming that the defamatory meanings of the words were that in return for cash donations to the Conservative Party, he corruptly offered for sale the opportunity to influence government policy and gain unfair advantage through secret meetings with the Prime Minister and other senior ministers; that he made the offer although he knew that the money offered for secret meetings was to come, in breach of the ban under UK electoral law, from Middle Eastern investors in a Liechtenstein fund; and that, to circumvent the law, he was happy for the foreign donors to use deceptive devices to hide the true source of the donation.
The Sunday Times argues that that the articles only meant that what Mr Cruddas said in the course of the meeting was “inappropriate, unacceptable and wrong and gave rise to an impression of impropriety”; and that Mr Cruddas was prepared to contemplate ways in which donations from an overseas fund could be made through using a legal loophole to hide the source.
Mr Justice Tugendhat held when dealing with the preliminary issue of meaning that for libel Mr Cruddas’ meanings were the relevant single meanings, and that for malicious falsehood they were possible meanings ([2013] EWHC 1427 (QB)).
He also said he considered “corruptly” in the first meaning to mean, among other things, that Mr Cruddas was guilty of a criminal offence and that that was what the defendants were alleging, and also struck out part of the defendants’ defence, leaving them with no defence of justification.
In the Court of Appeal, Lord Justice Longmore, with whom Lady Justice Rafferty and Sir Stephen Sedley agreed, said he had “no difficulty” in agreeing with Mr Justice Tugendhat that the articles bore the meanings of claimed by Mr Cruddas, but added that he did have “difficulty in agreeing that the word ‘corruptly’ necessarily (or on the facts of this case) connotes that a criminal offence has been committed” ([2013] EWCA Civ 748).
The newspaper applied to Mr Justice Tugendhat to recuse himself from the case because of various criticisms of his decision on meaning made by the Court of Appeal, and because he had already expressed a view of the evidence in his previous judgment.
Desmond Browne QC, for Mr Cruddas, said the Court of Appeal had also upheld some of the judge’s findings on meaning, and pointed out that if the Court of Appeal had expected that if it considered that the effect of its decision was that there should be a different trial judge it would have said so.
Mr Justice Tugendhat said:
“After considering the submissions of the parties on individual points, it is necessary to stand back and consider the question which is at issue, … would a fair-minded and informed observer conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased?” [43]
“In my judgment the answer is No. Judges in particular (but everyone else who holds any position of responsibility) regularly have to bring a fresh mind to questions that they have considered previously, and they regularly have to change their minds when faced with new arguments or new facts. Here the issues in the case have changed to the extent that the Court of Appeal upheld the Defendants’ appeal. I have not yet heard any evidence, and I have not made any findings of fact (whether about Mr Witherow or any other witness). I have made decisions in this case which are adverse to the Defendants, but also an important decision on which I accepted the Defendants’ submissions. It is important that I do not accede too readily to suggestions of apparent bias” [44].
“Any judgment that a trial judge delivers at the end of a case is required to be fully reasoned. I reject Ms Rogers’ submission that a fair minded and informed person would conclude that, if I were to make a finding adverse to the Defendants at trial, it would not be for the reasons I would set out in my judgment, but because there was a real possibility that I might be biased against the Defendants. Accordingly I decline to recuse myself” [45].
On the issue of the trial date, the judge said that he was sceptical of the time estimate of seven days for the trial put forward by the defence, and considered there was a real possibility that oral hearings may take longer.
“This case is hard fought on both sides, and both sides appear willing to devote to it substantial resources in time and money. The issues in the case are important not only to the parties but also to the public at large,” he said
He had not overlooked the importance to a party of having the counsel of their choice, he said, adding:
“But the availability of counsel cannot be the governing factor. Dealing with a case justly and proportionately includes allotting to the case an appropriate share of the court’s resources and the need to allot resources to other cases.”
He had considered the other cases in the list, and the resources required for this case as well as for other cases, and had “no hesitation” in rejecting July 22 July as a suitable date to start the trial, as there was a real risk that the hearings would not be completed by the end of term.
In addition, setting aside the last eight days of term for this case would leave the court without the time it needed to deal with other cases already listed for July, still less for other cases which the court had to be able to make provision.
The Judge decided that the trial would be listed to start at 2pm on next Tuesday, 2 July 2013, and that he would be the trial judge.
This post originally appeared on Media Lawyer and is reproduced with permission and thanks
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