Anthony Gilberthorpe v John Hawkins; News Group Newspapers Ltd; Mirror Group Newspapers Ltd; Gloucestershire Newspapers

On an application to strike out for want of prosecution, the court must balance the public interest in finality and prompt progress against the justice of allowing the dispute to be properly determined. The inherent jurisdiction is exercised to achieve justice in the particular case.

In an exceptional case involving serious allegations that evidence supporting a retrial may have been perjured or improperly obtained, delay and possible prejudice may not justify preventing the retrial. Prejudice must be assessed against the issues that will actually require determination. Faded memories are not decisive where the central issue can still be tested through the principal witnesses and existing records.

The claimant brought libel proceedings concerning newspaper publications alleging that he had admitted receiving treatment for AIDS. At trial, a jury rejected the defendants’ defence of leave and licence and awarded damages. The defendants appealed on fresh evidence, and the Court of Appeal ordered a retrial.

The retrial was not pursued promptly. The defendants applied to strike out for want of prosecution. Drake J held that the delay was inordinate and inexcusable and likely to cause serious prejudice, and struck out the action against the relevant defendants. The claimant appealed. The central issue was whether, despite the delay, justice required the retrial to proceed in light of subsequent retractions and allegations concerning the evidence that had led to the retrial order.

1. Appeal allowed unanimously. McCowan LJ held that Drake J was not plainly wrong in finding that the delay had not been sufficiently excused. Although the judge had been too cautious in his initial remarks about lack of finance in defamation proceedings, he had considered the explanation on its merits. The evidence concerning ill health and the pursuit of further evidence from Hoffman also did not make the delay excusable.
2. The judge was nevertheless plainly wrong because he failed to give sufficient weight to the exceptional justice issue. Hoffman’s evidence had materially influenced the earlier decision to order a retrial, yet he had subsequently made several retractions and counter-retractions. The Court of Appeal could not determine the truth of those matters without hearing and seeing the witnesses. Justice required that the allegations of deception, perjury or improper interference with the administration of justice be fully explored at a retrial.
3. The finding of serious prejudice was also unsustainable. The essential issue at the retrial would be whether the principal justification witnesses had sexual relations with the claimant and whether the claimant had lied at the first trial. That issue was substantially direct and factual. Faded memories of the leave-and-licence witnesses were mitigated by notes, statements, recorded conversations and the original trial transcript. The defendants had obtained the retrial order on the basis of their principal witnesses and had to bear the risk if those witnesses failed to attend or failed to establish their evidence.
4. Ward LJ agreed with McCowan LJ and separately emphasised the public interest in finality, avoiding delay and requiring parties and witnesses to disclose the truth where it assists determination of the dispute. He treated this consideration as reinforcing the need to resolve the alleged assault on the administration of justice. Sir Roger Parker agreed without adding reasons. Costs before Drake J and in the present Court of Appeal were awarded to the claimant. Costs of the first trial and the last Court of Appeal hearing were reserved to the judge at the retrial.

1. Court of Appeal (Civil Division) — In the present appeal, the court allowed the claimant’s appeal against the strike-out order.
2. High Court, Queen’s Bench Division — Drake J, on 26 October 1993, struck out the action against the relevant defendants for inordinate and inexcusable delay likely to cause serious prejudice.
3. Court of Appeal (earlier appeal) — The defendants’ appeal on fresh evidence was allowed and a retrial was ordered.