Parties must obtain court order for preliminary issues hearings

In a preliminary issues hearing on the meaning of the words complained of in a defamation action, the High Court has given guidance on the procedure to be adopted when parties seek ruling on a preliminary issue, which may have wider application outside of defamation claims.

The claimant in Irina Bokova v Associated Newspapers Ltd [2018] EWHC 320 (QB) applied to the court for early determination of the meaning of words that she complained were defamatory in articles published by the Daily Mail and Mail Online. As is usual in such cases (after the general abolition of juries for defamation claims by the Defamation Act 2013), Dingemans J, in a preliminary hearing on the issue of meaning, gave a ruling on the meanings attributable to each of the alleged libellous statements.

However, the judge also handed down some brief procedural guidance which is likely to have more general application to preliminary issues hearings.

Although, in her application, the claimant had requested (amongst other things) an order for ruling on meaning by way of preliminary issue, the court had made no order to this effect. The problem with this, the judge said, was that it meant the court had been given no opportunity to determine which issues should be heard, or exercise any case management powers.

As it was, the parties arrived at the hearing prepared for all issues set out in the claimant's application to be heard when in fact only the issue of meaning was suitable for preliminary trial at that stage in the proceedings. For example, the claimant's request for an order that sections of the defence be struck out could not be determined until after the court had ruled on the meanings of the articles.

Dingemans J highlighted the costs implications of this – both parties had incurred unnecessary costs preparing for issues that would not be heard, and the court had not been able to require them to file costs budgets. He emphasised that "excessive or disproportionate costs should not be allowed to become or remain a barrier to either bringing or defending claims for libel" in the context of preliminary issues hearings.

Both parties were also criticised for the late filing and "excessive length" of their skeleton arguments. The judge highlighted that the Queen's Bench Division Guide provided that skeleton arguments should be "as brief as the issues allow and not normally be longer than 20 pages…" Those of the claimant and defendant totalled 39 and 34 pages respectively. He cited case law stating that failure to comply with procedural rules is likely to result in costs penalties.

Implications

Clearly, parties applying for a trial of a preliminary issue must ensure that they seek and obtain an order for the hearing of the issue together where appropriate with directions most obviously regarding the provision of evidence.

Parties to hearings of preliminary issues, particularly those to defamation proceedings, can also expect at this early stage a higher degree of case management following this ruling. In particular, parties may find that the courts include provisions for costs budgeting in orders for preliminary hearings in an attempt to ensure that the costs involved do not put up barriers to claimants or defendants.

The full judgment can be found here.