[2025] EWHC 2621 (KB)

Mr Millar emphasised that the split trial application was made with a view to securing the earliest possible trial date at which all 15 women would give evidence in relation to the sexual assault and sexual harassment allegations. In addition, The FT wanted the earliest possible opportunity to vindicate the truth of its journalism.

Like all counsel, he disavowed the suggestion that tactical considerations have played any part in his client's position.

Mr Millar estimated that a trial of liability in the Libel Claim would take 18 days, plus two days pre-reading. He noted that trials of 10 - 20 days in media and communication cases are currently being listed between 5 May and 31 July of next year. He said that this would be before the PI claims could be listed for trial, as cases other than media and communications trials of between 5 days - 4 weeks are currently being listed between 1 October and 18 December 2026 (according to the information made available by the King's Bench Division regarding hearings and trial dates). He said the timetable for disclosure and exchange of witness statements in the draft order was a realistic one which The FT was committed to adhering to.

Mr Millar also suggested that a delay in the Libel Claim being tried may have the consequence that some of the ten women who are not the PI claimants, could decide they no longer wish to be involved.

Mr Millar submitted that a split trial between liability and remedy in the Libel Claim was eminently possible, given that serious harm is not in issue, and that the first trial would address the truth defence and the public interest defence. The trial judge, he said, would already have complex issues to deal with at this liability stage, and a split between liability and remedies was the cleanest way of implementing a split. This approach would lead to a substantial savings of cost and a quicker trial date, particularly as the quantification of special damages in this case, if Mr Odey succeeded on liability, would be a far from straightforward exercise. If a split trial was ordered, there would be no need to give disclosure of documents that were purely related to quantum at this stage, and this would be a significant saving of time and costs as disclosure in that area is likely to be extensive. He suggested there were also complex questions of causation, including as a result of the Financial Conduct Authority's decision to ban Mr Odey from the UK financial services industry for a lack of integrity, a decision which he is challenging in the Upper Tribunal. Furthermore, said Mr Millar, the cost of expert evidence required to deal with the special damages claim is likely to be in the region of £500,000.

In relation to the specifics of the special damages claim, Mr Millar said there would be a need for complex expert evidence regarding the value of Mr Odey's interest in the hedge fund, OAM, at the time of his removal. In relation to the alternative loss of earnings claim, the scale of his likely future earnings (absent publication of the Articles) would need to be evidenced and assessed, and issues could also arise around his likely retirement date, and/or in relation to mitigation of loss. It was essentially, he said, a loss of a chance claim that would need to be assessed by expert evidence. Expert evidence would also be required in respect of the third limb of the financial claim, as to the difference between Mr Odey's investments absent the matters complained of and their actual value.

Mr Millar considered that the special damages aspect would add approximately a week to the length of the trial. He did not accept Mr Speker's contention that causation should be determined at the same time as liability. Whilst Mr Speker indicated a wish to question The FT's journalist who had worked on the Articles about their impact on Mr Odey's business and career, Mr Millar noted that what the journalist had said about this in their subsequent reporting was a matter of record, and there was little they would be able to add to that.

Although The FT's preference was for the split I have indicated, Mr Millar said his principle concern was to avoid the special damages claim being litigated to trial at the same time as the liability issues. Mr Millar also disputed that there would be any significant disadvantage in holding split trials, even if the same judge was not available for the second trial, because the judge hearing the second trial would have the benefit of the judge's reasoned judgment from the first trial and, if necessary, transcripts of evidence from the first trial. This would also enable Mr Odey to rely upon the conduct of the first trial in support of his claim for damages, should he wish to do so.

Mr Millar said that each of the eight considerations identified in the Electrical WaterRecycling case pointed in favour of the proposed split trial.

Mr Millar supported the PI claimants’ stay application, and he rejected a suggestion that it was unfair for the libel trial on liability to go first; the PI claimants could be cross-examined at that stage about matters which were said to go to their credibility, including delay in bringing their PI claims.

Although he had initially indicated that The FT's proposal would avoid duplication of evidence, Mr Millar accepted that this would not be the case if The FT were successful in the Libel Claim, given Mr Odey had now made it clear he would not agree to such findings binding him in the PI claim; albeit Mr Millar suggested that even in this scenario, there would likely be some narrowing of the issues once the various parties took stock after the first libel trial.

Mr Millar indicated that The FT were "very interested" in the Joint Trial Proposal, and he thought that whilst it would require careful thought, it could work. He suggested the joint trial should only encompass the truth defence, as this was where the overlap lay and a trial focussed on this aspect could be heard more quickly. However, he said The FT were content for it to include the section 4 defence as well and, as he put it, "possibly limitation".

As regards Mr Kent's concerns about cross-admissibility of the alleged victims' accounts, he said this was not something I could address at this stage; it would be for the trial judge to assess and determine.