X v Y & Anor

On an application for permission to appeal after a jury defamation trial, the court asks whether the trial or summing-up was arguably unfair in a way that could have produced the wrong verdict. The trial judge controls the admission and presentation of relevant evidence. Where associated actions are tried together, a witness need not ordinarily give the same evidence twice. Serious allegations do not alter the civil standard of proof, which remains the balance of probabilities. Appropriate directions may be required about delayed recollection. Minor criticisms of a summing-up will not justify a new trial. A modest interim costs order may be payable forthwith, subject to repayment of any excess revealed on assessment.

The claimant brought defamation actions against his son and former wife concerning allegations of paedophilia, brutality and related conduct. The actions were tried together before Mr Justice Eady and a jury in the Queen’s Bench Division. The claims failed, indemnity costs were ordered, and an interim payment of £10,000 was directed.

The claimant applied to the Court of Appeal for permission to appeal, alleging bias, procedural unfairness, inequality of arms, inadequate evidential opportunities, errors in the summing-up, and an incorrect ruling on qualified privilege. He also challenged the interim costs order. The central issue was whether any alleged defect was arguably capable of rendering the trial unfair or producing the wrong verdict.

Application refused. Lord Justice Longmore found no arguable basis for a new trial or for interference with the interim costs order.

1. The relevant question on an application of this kind was whether the summing-up was arguably unfair so that it could arguably have produced the wrong verdict. Having read the summing-up with care, the court considered it a model of fairness.
2. The trial judge controls the evidence to be heard, particularly when sitting with a jury. There was no arguable basis for saying that relevant evidence had been improperly excluded. Since the two associated actions had been tried together, the former wife did not need to give evidence twice or be called separately in her own action.
3. The judge’s ruling that the written communications were protected by qualified privilege was correct. There was no arguable error of law on that issue.
4. The direction on proof was correct. In a civil defamation action the applicable standard is the balance of probabilities, both for publication and for the defence of substantial truth. The seriousness of the allegations did not convert that standard into the criminal standard.
5. The warning concerning the effects of the passage of time and childhood recollection was adequate. Although there was no express direction on possible contamination, the jury had heard the evidence over ten days and could be expected to appreciate that issue. The remaining complaints were too minor to justify a new trial.
6. The £10,000 interim costs order was modest and appropriate after a failed ten-day action. It was payable forthwith, subject to repayment of any excess if the final assessment produced a lower figure. The costs of the application were to be paid to the respondent and assessed.

1. High Court (Queen’s Bench Division): Mr Justice Eady, sitting with a jury, dismissed the defamation claims and ordered indemnity costs, including an interim payment of £10,000.
2. Court of Appeal (Civil Division): On the application reported at [2001] EWCA Civ 664, permission to appeal was refused. The interim costs order was upheld and the costs of the application were ordered to be paid to the respondent, subject to assessment.