[2025] EWHC 2621 (KB)

As I have described earlier, and as the parties accept, the Libel Claim and the PI Claim have a substantial degree of factual overlap in terms of whether the allegations of sexual assault made by each of the five PI claimants are true or not. As regards witnesses, as matters stand, and at the very least, each of the PI claimants and Mr Odey will have to give evidence twice over in relation to the disputed events. Each claimant's account relates to different time periods and different alleged events, and in light of the extensive factual dispute between the parties, it is likely that each of the six core witnesses I have referred to would face substantial cross-examination. It is also likely that there will be some supporting witnesses of fact called by one or other or probably both parties in respect of the various incidents, albeit the precise number of such additional witnesses is not known at this stage.

Accordingly, in considering the best way to manage these cases, my starting point, in line with the observations of Warby J (as he then was) that I cited from Mitchell, is that it is clearly desirable to avoid these substantial issues being tried twice over in different actions. To do so would be inherently wasteful, involving as it would duplication of time, effort and cost, and it would carry with it the potential risk of inconsistent or apparently inconsistent outcomes.

As Popplewell LJ and Warby LJ said in Limbu in such a situation, the court will take steps to case manage the cases in question, in order to avoid or minimise duplication of effort and cost, and the prospect of inconsistent outcomes or findings. A trial by judge alone of the common factual issues was one of a number of potential solutions that was referred to in the examples given by Warby LJ as to the ways in which the court's flexible case management powers could be deployed.

In addition, in cases of this nature involving allegations of a highly personal and distressing nature, whatever the court ultimately decides, there is a further important consideration, namely the desirability that those involved should not have to give their evidence about such events on more than one occasion. I have already referred to the court having recognised this in cases involving allegations of sexual abuse in the context of section 33 Limitation Act issues.

In the circumstances, I consider it is incumbent upon the court to try and arrive at a case management solution that avoids the prospect of there being these two separate trials, that both hear evidence about and determine the veracity of the PI claimants' accounts of being sexually assaulted by Mr Odey. Of course, any solution the court identifies must be mindful of the potential prejudice that could result, and of the need to be fair to all of the parties involved.

In this instance, strikingly, none of the parties' proposals would avoid the two trial scenario.

I was told that when the applications were made, The FT and the PI claimants understood, or at least hoped, that for the purposes of a subsequent trial of the PI claims, Mr Odey would agree to be bound by the findings made in respect of the truth defence, if The FT succeeded in establishing this at a prior trial on liability in the Libel Claim. However, he has declined to do so. I do not intend to take up Mr Millar’s and Ms Gumbel's invitation to assess the adequacy of his stated reasons for adopting this approach. They have criticised his reasoning and Mr Odey's counsel have defended it, but we are where we are. The fact of the matter is that it is common ground that issue estoppel would not apply because of the different parties, and also common ground that the court has no power to direct or require Mr Odey to be bound by the findings of the libel trial if that went first. Nor has it been suggested to me that it would be an abuse of process for him to decline to do so and to robustly defend the PI Claims, even if he lost the libel claim as a result of The FT making out the defence of truth.

Accordingly, I simply cannot be confident that granting the stay application would address my core concern. A second trial as to whether the sexual assaults took place, would only be avoided in the event that the evidence of the PI claimants was not accepted by the judge hearing the liability trial (because of the concession I have explained the PI claimants have indicated).

Whilst I am not asked to stay the Libel Claim, I note for completeness that doing so would also not provide an effective solution . The FT is not a party to the PI claims, and does not agree to be bound by their outcome or by findings made in those proceedings. If Mr Odey successfully defended the PI claims The FT could, nonetheless, pursue its truth defence in the Libel Claim, including by relying on the accounts of the five PI claimants.

The authorities I have referred to indicate the court has a broad discretion, exercisable by reference to the overriding objective and the particular considerations I have already identified.

Having carefully reflected upon the matter, I am quite satisfied that the Joint Trial Proposal is the best option, or, it might be said, the least worst option in all the circumstances. It is the only option that avoids the highly undesirable prospect of a second trial on the same substantial factual issues. As will be apparent from my summary of their respective submissions, none of the parties contended that the Joint Trial Proposal would be unworkable, and I am satisfied that it provides a feasible solution. In terms of whether the women were sexually assaulted as they alleged, the same burden and standard of proof applies in both the Libel Claim and the PI Claims.

Further, I do not consider that a joint trial would require the trial judge to undertake unrealistic and mind bending mental contortions, as suggested by Mr Kent. He said that this was because some of The FT's evidence in the libel trial, particularly the accounts of the other women, would not be admissible in the determination of the PI claims. Whilst this phrase is more commonly used in the context of criminal proceedings, I will refer to this question as one of cross-admissibility, as the parties did so in their submissions to me.

The specific extent to which cross-admissibility issues would arise is unknown at this stage when disclosure and exchange of witness statements have yet to take place in the Libel Claim and witness evidence is yet to be exchanged in the PI Claims and the parties have yet to indicate the extent to which it is relied upon or opposed. However, I am satisfied that cross-admissibility issues would not present an insuperable problem. Firstly, High Court judges are well used to putting inadmissible evidence out of their mind when they have to decide particular issues. Indeed, juries in criminal cases are often expected to follow relatively complex directions on the extent to which, if at all, cross-admissibility applies in relation to evidence given in respect of several counts of sexual assault on an indictment. Secondly, even if there were separate trials in this instance, the judges at both the libel trial and the PI trial would have to grapple with the extent to which evidence in respect of one of the allegations of sexual assault was admissible in support of other allegations of sexual assault made in the same proceedings. Whilst I accept cross admissibility issues will be more complex in a joint trial, given that such issues would likely arise in any event (as I have explained) and are not confined to a scenario where there is a joint trial, this aspect is not a reason in itself to avoid the joint trial option.

As will be apparent from my summary of their submissions, Mr Kent and Mr Speker did not put forward any alternative solution to the two-trial problem, despite the court's invitation to do so, other than to suggest that consideration of a joint trial be deferred until after disclosure was complete, and witness statements and expert evidence have been exchanged in both the Libel Claim and the PI Claim. I am not attracted to the idea of kicking the can down the road in this way. The central imperative of the desirability of avoiding two liability trials on the same disputed factual evidence will apply then, as it does now and there is nothing to suggest that an alternative credible solution will have presented itself by that juncture.

I heard comprehensive submissions on the matter, and I believe it is important to grasp the nettle at this stage. There is a further reason why I consider it undesirable to defer consideration of the Joint Trial Proposal. Whilst I have not found it necessary or productive to set out the details, it was apparent to me from the witness statements and the parties' correspondence, that there has been a considerable amount of tactical manoeuvring taking place in advance of this hearing. If I make no decision at this stage as to whether or not to direct a joint trial and simply allow for both sets of proceedings to continue towards their respective trials, there is a significant prospect that the tactical manoeuvring will continue. Those who will want to argue in due course that the libel trial should be heard first, will have an interest in slowing down the progress of the PI Claims to trial, whereas those who will want to contend in due course that the PI Claims should be heard first, will have an interest in slowing down the progress of the Libel Claim to trial. I make clear, I am not seeking to apportion blame in this regard, I am simply identifying that this is a likely feature going forward, if a decision is not made at this juncture.

I also note that most of the objections raised by Mr Kent and Mr Speker to the stay application are, in fact, met by the Joint Trial Proposal. By way of example:-

In the circumstances, I will refuse the application for the stay and direct that there is to be a joint trial of the issues that I will come on to identify.

I acknowledge that the proper and fair conduct of the joint trial will involve careful thought and planning. With the agreement of the parties, I did not hear detailed submissions at this stage as to the way in which the trial will be conducted. It is right that the parties should first have the opportunity to reflect upon this, and it may also be that the court will be better placed to undertake that exercise after the evidential position is clearer, at least in relation to the PI claim, which is further advanced in terms of evidence.

However, the parties did address me on the scope of the joint trial. They wanted to do so, as if I adopted the Joint Trial Proposal, the scope of the trial would, in turn, inform the trial preparation steps that are to be undertaken. Accordingly, I will return to the scope of the joint trial after I have addressed the split trial application.