Ukraine president handed costs penalty over libel claim approach

Poroshenko: “Wasteful and obstructive stance”

The “wasteful and obstructive stance” taken by the president of Ukraine in refusing to agree to a preliminary hearing on meaning in a libel case against the BBC has been penalised in costs.

Mr Justice Nicklin said that, where meaning was at issue, it would be for the party opposing a preliminary hearing to justify their position.

Poroshenko v British Broadcasting Corporation [2019] EWHC 213 (QB) is a libel claim brought by the Petro Poroshenko over an item on the BBC’s News at Ten and similar report on the BBC News website.

Mr Justice Nicklin held a preliminary hearing on meaning, and also the costs of dealing with the issue.

He recounted that the BBC invited the claimant’s solicitors to agree that meaning should be determined as a preliminary issue – a process the High Court has encouraged in recent rulings.

“That was an obviously sensible suggestion by the BBC,” the judge observed.

The claimant’s solicitors – Atkins Thomson – protested that this suggestion was made just two days before the BBC was due to serve its defence, and contended that it should have been made upon receipt of the particulars of claim.

They argued that this was “yet a further example of your client’s unhelpful and dismissive attitude to these proceedings”.

However, despite prompting, the claimant did not respond to the substantive issue.

The BBC wrote again to say that an application would have to be issued and sought consent to an extension of time for service of the defence pending determination of any application for a preliminary issue. “That was an entirely reasonable request to make,” Nicklin J said.

In response, the claimant’s solicitors complained that the BBC had not made clear whether it intended to defend the charge as true, and as a result said there would be no benefit in dealing with the preliminary issue.

“That letter was obstructive,” the judge said. “Whatever criticism the claimant’s solicitors believed was warranted by the lateness of the proposal for meaning to be determined as a preliminary issue, once raised, it needed to be dealt with constructively.

“The obligation on the parties to litigation is clear. It is to assist the court to further the overriding objective. That includes the early identification of issues of dispute and the most proportionate, cost effective and expeditious way of resolving them.

“In defamation claims, as explained in Morgan and Bokova, that includes express consideration of trial of meaning as a preliminary issue. The letter’s treatment of these two authorities suggests that the author had failed to understand their general application.”

As a result, the BBC issued an urgent application seeking an extension of time for the service of its defence and a direction for meaning to be tried as a preliminary issue.

The claimant’s solicitors then offered a short extension for service of the defence while they considered the proposal further with counsel.

Nicklin J said: “It is not clear to me why counsel had not been asked about the BBC’s proposal that meaning should be tried as a preliminary issue before the letter of 5 October 2018 had been written (with input from counsel), or indeed, why it was necessary for experienced solicitors in the field to seek advice from counsel about this issue at all, unless it was to disabuse themselves of the view that the decisions of Morgan and Bokova were simply case management decisions in the instant cases and of no general application.”

Master Davison then extended time for service of the defence until 21 days after determination of the BBC’s application for meaning to be tried as a preliminary issue.

“What followed was some further pointless correspondence from the claimant’s solicitors,” Nicklin J said, but the claimant finally agreed to the preliminary hearing.

The judge rejected the claimant’s assertions that the BBC’s applications had been “premature and unnecessary”, and were a direct result of the BBC’s actions.

“The claimant was responsible for this wasteful and obstructive stance. Agreement to the trial of meaning as a preliminary issue should have been provided swiftly after the BBC’s proposal…

“In the end, the claimant’s solicitors never did articulate any reasoned opposition to meaning to be determined as a preliminary issue.”

Nicklin J said that, once it was clear that meaning was in dispute, “the issue should be considered by all parties, and a burden will normally fall on any party who contends that the issue should not be resolved by determination at a preliminary issue trial to present cogent and case-specific reasons why not.

“The disadvantages of ploughing on, not only to the parties in terms of potentially wasted costs, but also in disproportionate drains on the resources of the court mean that that burden may be difficult to discharge.

“In my judgment, the conduct of the claimant in this case more than justifies an order that he should pay the costs of and occasioned by the BBC’s application.”

In the substance of the hearing, the judge largely preferred the meaning contended for by the claimant.

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