[2025] EWHC 2621 (KB)

Mr Kent KC resisted the application for a stay on the basis that the PI claims should be brought onto trial first. He pointed out that in four of the five cases the allegations related to events which occurred many years ago, and well outside the primary limitation periods. Delay would have an impact on the cogency of the evidence and this will impact on all aspects of the PI claimants' evidence, not just upon whether they were sexually assaulted by Mr Odey. He said they would need to be asked about why they had not commenced the claims earlier, as this was relevant to their credibility as well as to limitation, and they would need to be questioned about the alleged impact of the events upon them, as this was also relevant to their credibility, as well as to the assessment of their damages claims for psychiatric injuries and loss of earnings.

Accordingly, he did not accept the issues of limitation, causation and quantum could be disentangled from the facts of the alleged assaults for the purposes of trial.

Mr Kent also suggested there was a lack of relevant information available to the court at this stage. As the PI claimants have not yet served their witness evidence in the PI Claims, it is not known whether and to what extent they do seek to rely by way of similar fact evidence upon the accounts of the other ten women whom The FT plans to call as witnesses in support of its truth defence.

Mr Kent said that in the Libel Claim, the court would be considering a more wide-ranging set of allegations and hearing evidence directed to the question of whether the agreed meaning is "substantially true". The agreed meaning included "sexually harassing" women as an alternative to sexually assaulting them. Accordingly, resolution of the truth defence would not necessarily involve the court making any specific findings on the factual allegations made by the PI claimants.

Furthermore, much of the evidence relied upon by The FT in its truth defence would or may be inadmissible in the trial of the PI claims, including the evidence of the other ten women who are not PI claimants. In these circumstances, it would be unfair to Mr Odey if the findings on the truth defence in the Libel Claim were treated as dispositive of the issues in the PI claims.

As I have already flagged, Mr Kent confirmed that Mr Odey does not agree to be bound by the findings made in the Libel Claim (if that were tried first) for the purposes of the PI Claims. He pointed out that as the parties were not the same, issue estoppel would not apply. He said that the rule against collateral challenge identified by the House of Lords in Hunter v The Chief Constable of West Midlands Police [1982] 1 AC 529, would not have any application, as that only applied to a claimant bringing a claim that involved mounting a collateral attack upon a final decision made by another court of competent jurisdiction in previous proceedings, in which the contended claimant had a full opportunity of contesting that earlier decision. However, Mr Kent indicated he accepted that in the reverse position, if the PI claims were tried first and Mr Odey lost, then the collateral challenge principle would prevent him as the claimant from relitigating those issues in the libel claim.

Mr Kent contended the PI claims were well advanced. Insofar as they were not yet ready to be listed for trial, this was due to the PI claimants' unreasonable failure to comply with the deadline for service of witness statements. Thus, it was not something they could now rely on to their advantage. They were only likely to be allowed a short extension of time for them to exchange witness evidence if those claims were not stayed.

Mr Kent said that if the joint trial option was preferred by the court, "there are ways of doing it, but it is not as simple as others have suggested." He argued that now is not the right time to determine this question and that it was something that could be revisited once disclosure had been completed and witness statements and expert evidence exchanged in both sets of proceedings. In addition, he maintained his concern about cross-admissibility, suggesting that a single joint trial would require the trial judge to undertake "mind-bending" feats to ensure that they did not take into account inadmissible evidence in the form of the accounts of the other women, when deciding whether a particular claimant's allegations were made out. If the section 4 defence were included in the joint trial, this would result in the admission of a great deal more material that would be inadmissible in the PI trial.

Mr Kent said that if there were to be a single joint trial, then in terms of the PI aspect, it should include issues of limitation, causation and general and special damages, to ensure the credibility of the women's accounts were fully explored and tested.

Mr Speker addressed me on Mr Odey's objection to the split trial application. He disputed that a split trial would lead to any real or substantial advantage. He also suggested the application was premature and that the court was not in a position to make an informed decision on this when the libel litigation was at a relatively early stage.

Mr Speker did not accept a split trial would result in the libel claim proceeding more quickly, and he said there would be unnecessary duplication and potential delay, particularly from the bifurcated appeal process.

He observed there was no cost benefit analysis or evidenced basis to support the proposition that splitting the trial in the way proposed would save costs, as there would to be two trials instead of one in the Libel Claim. He noted The FT's position in its Defence had been to not admit the special damages claim, rather than to deny this aspect of the claim and advance a positive case.

Mr Speker submitted that the task of assessing general damages was quintessentially one for the trial judge. It is most conveniently undertaken at the same time as the liability trial, and it is not a complicated or time-consuming exercise. He noted that even where the trial judge upholds a defence, they will usually indicate the notional award of damages that they would have awarded, had they found in the claimant's favour, in order to avoid the need for a subsequent remedies trial if the judgment on liability is overturned on appeal.

Mr Speker also maintained that causation should be a matter for the trial judge to resolve. He noted that The FT had not pleaded a positive case on causation and that its journalists had accepted in their subsequent reporting that the Articles had been responsible for Mr Odey's removal from OAM, and its subsequent collapse, so that causation should be a straightforward aspect to determine at the same time as liability.

Mr Speker accepted there are cases where it is appropriate to determine special damages at a subsequent trial, but he suggested this was better addressed after disclosure in exchange of witness evidence, when the position would be clearer.

Mr Speker considered The FT's draft timetable, as set out in his draft order, was wholly unrealistic. The scale of disclosure in respect of liability was extensive. It included, for example, disclosure of all the documents relating to The FT's trawling investigation on LinkedIn, its meetings and communications with numerous sources and the likely need for redaction of confidential material.

Mr Speker agreed with Mr Kent's position in respect of the stay application. He emphasised that determining the section 2 truth defence in the Libel Claim would not necessarily involve the court making findings on each of the five PI claimants' accounts. He also suggested there was a risk that the PI claimants may not attend the libel trial, as they would be less invested in this than their own PI litigation, which should be heard first. He suggested that hearing the PI claims first would allow the court to "drill down deeper", into the credibility of the claimants’ accounts, including by reference to medical records and expert psychiatric evidence. He emphasised this was particular important given the serious allegations involved.

As regards the Joint Trial Proposal, Mr Speker emphasised that the section 2 and section 4 defences should be tried together because of the degree of overlap.