[2025] EWHC 2621 (KB)

I am satisfied that the costs involved in preparing for and conducting the trial of the complex special damages claim will be very extensive. I have already summarised the nature and elements of this claim. Substantial disclosure would, inevitably, be involved. It is likely that witnesses of fact would be required who were not involved in the liability trial. Moreover, complex expert forensic accounting evidence would be required, as Mr Millar described, and Mr Speker did not take issue with this in his response. Indeed, Mr Odey accepted in his Directions Questionnaire, that the court will require "significant expert assitance" on this aspect. An early estimate of the expert's costs on Mr Odey's side was given as £100,000 - £150,000.

Whilst it is right to say a full budgeting exercise has not been produced, it is apparent at this stage from the nature of the pleaded claim that substantial costs would be involved in preparing and trying the claim for special damages.

It is also possible that material from Mr Odey's challenge to the FCA's decision may need to be disclosed. I understand his appeal is likely to be heard by the Upper Tribunal in March 2026. There will then be some further time after the hearing before a judgment is issued. It would be unfortunate if this were to delay preparations for the trial, and that risk can be removed if the special damages aspect is deal with separately.

Obviously if the trial is split in this way and The FT succeeds on liability, there will be no need for the special damages claim to be tried at all, and significant time and cost will have been saved. Whereas, if the special damages aspect is heard with the liability issues, costs will have been incurred unnecessarily. In addition to the time and cost involved in preparing for trial, I was told that including the special damages claim within the libel trial would have the effect of adding a week to its length, as I have indicated. If Mr Odey were to succeed on liability, then settlement of the special damages claim, or at least agreement of aspects of it will be significantly more likely in those circumstances. Failing that, the judgment on liability will likely assist with the narrowing of quantum issues, and the parties could prepare their respective cases on quantum on the basis of what had actually been found.

If the question of whether there should be a split trial is deferred, as Mr Speker suggested, substantial time and cost will, in any event, be expended in the interim on the extensive disclosure exercise and in the preparation of witness statements and expert evidence. This is plainly undesirable in circumstances where this may prove to have been unnecessary if the split trial is then ordered. Given the scale and nature of the special damages claim it is, in my view, better for the decision to be made at this stage. This also has the advantage of avoiding the unnecessary delay that would arise from including these substantial preparatory steps in the directions timetable.

In the circumstances, I am satisfied that savings of cost considerations are in favour of a separate trial of the special damages claim.

The position is different in relation to general damages. I appreciate that serious harm is not in issue and thus Mr Odey is likely to adduce some evidence in relation to general damages that would not otherwise be before the court on a trial that was confined to the section 2 and section 4 defences. However, the compass of that evidence is unlikely to be extensive, and nor are the preparation costs, particularly on The FT's side.

I also consider that the cost position is different in relation to causation. The FT's defence does not advance an alternative cause for the loss of Mr Odey's employment, and the collapse of OAM. As I have noted, the impact of the Articles was accepted by the journalists who had worked on them. Accordingly, I do not consider that the trial preparation steps in relation to this aspect is likely to involve a significant escalation of costs, and the evidence in respect of it is likely to be limited. The FT will, in any event, be preparing and serving witness statements from the journalists involved.

The grant of injunctive relief tends to follow an unsuccessful libel claim when there is a risk of repetition of the libel. Conclusion of this issue in the main trial will not escalate costs or increase the evidence to be heard to any significant extent at all, and it is unnecessary for me to make further reference to this aspect.