|IN THE HIGH
COURT OF JUSTICE
Courts of Justice
MR JUSTICE VINELOTT
B E T W E E N:
CHURCH OF SCIENTOLOGY OF CALIFORNIA
- and -
(1) RUSSELL MILLER
(2) PENGUIN BOOKS LIMITED
(Transcribed by Beverley F. Nunnery & Co., Official Shorthand Writers and Tape Transcribers, 25 Dulverton Mansions, Gray's Inn Road, London WC1X 8EJ. Telephone: 0l 278-7047/0975)
MR A. NEWMAN and MR J. ALGAZY (instructed by Hamida Jafferji) appeared on behalf of the Plaintiff.
MR G. LIGHTMAN Q.C., MR M. BRIGGS and MR P. JONG (instructed by Peter Carter-Ruck & Partners) appeared on behalf of the Defendants.
(As approved by Judge)
MR. JUSTICE VINELOTT: In this action the Church of Scientology seek an interim injunction pending the trial of an action against a Mr. Russell Miller and Penguin Books Limited. The Church of Scientology, California, is registered under Californian law as a religious organisation. It has, of course, subsidiary or associated organisations with similar objects elsewhere, including the United Kingdom. The subsidiary or associated organisation in the United Kingdom is a company. It has not been registered as a charity. It should not therefore be assumed that the plaintiff or its subsidiary or associated organisations will be recognised in England as established for the advancement of religion. I shall, nonetheless, for convenience refer to this group of organisations as "the Church"; I shall, where appropriate, refer to the plaintiffs alone as "the plaintiffs".
The founder of the Church was the late Mr. Ron Hubbard. Mr. Russell Miller is a well known author with a reputation for investigative journalism. He has written a biography of Mr. Hubbard. Penguin Books Limited are, of course, the intended publishers. Proof copies of the book were available to a limited circle on 5th August last. The plaintiffs obtained a copy of it. It is not clear from the evidence precisely how or, more importantly, when they did so. The intended date for publication is 26th October. The publication date has been arranged to coincide with the serialisation of excerpts from the book in successive editions of the Sunday Times. The publishers planned to send the first print run to booksellers and wholesalers early this week. Distribution to them cannot be delayed much longer if the intended publication date is to be adhered to. In turn, much of the impact of the publication of excerpts in the Sunday Times which is likely to go ahead, albeit if necessary with some editing whatever the outcome of this application, will be lost if publication date is delayed beyond 26th October.
The plaintiffs seek an injunction, pending trial, to restrain the author and the publisher from distributing the book in its present form. The writ was issued and notice
of an application for an interim injunction was given on 29th September. The hearing commenced on Tuesday of this week and concluded at 10.45 this morning. In these circumstances and having regard to the planned publication date and the need for urgent distribution of the first print run, I have thought it right not only to give judgment without delay but also to make my judgment as brief as possible in the hope that if my decision is challenged in the Court of Appeal a transcript can be made available to it.
Injunctions are sought on three grounds. First, it is said that the plaintiffs own the copyright in two photographs, one of which appears on the dustsheet and, indeed, appeared in earlier publicity material put out by Penguin Books, and the other as an insert in the body of the book. They say that the publishers would be in breach of this copyright. Secondly, it is said that the book contains quotations from and information derived from diaries and journals and letters of a confidential character which were communicated in confidence to one Gerald Armstrong while an employee of the plaintiffs, and that the plaintiffs are entitled to protect those documents and information from publication by a defendant who, whether or not he acquired them innocently, now knows of the confidence attaching to them. Thirdly, it is said that the documents in question were obtained by Mr. Miller directly or indirectly in breach of a sealing order made by the courts of California in litigation to recover the documents from Mr. Armstrong.
I can deal with the photographs very briefly. Mr. Miller says that he obtained the dust cover photograph from a library which supplies newspapers and publishers with, inter alia, photographs. An executive of that company says that he attended a photographic session at the Church's college in East Grinstead when he was handed the publicity brochure which included this photograph. The plaintiffs say that the photograph he was given was a different photograph and they have produced a copy of the photograph they say he was given. It is admitted by the plaintiffs, though the
admission was made at a late stage, that the library is entitled to supply copies of the photograph it was given in the ordinary course of its business. There are some, but only minor, differences between the photographs. The one on the dust jacket is not an exact reproduction of the one in which the plaintiffs claim copyright; it has been reproduced in a way which increases its dramatic impact. The photograph admittedly supplied to the library, similarly reproduced, would be virtually indistinguishable.
The claim that the plaintiffs would be injured by infringement of its copyright, assuming that it has copyright in the photograph actually supplied to Mr. Miller by the library, and that the library had no authority to supply that photograph, is simply incredible.
The other photograph is, on its face, a snapshot of a number of people, including Mr. Hubbard, taken on the beach at Curacao. Unlike other photographs on the same page, it is not a "posed" or official photograph. The plaintiffs say that it was taken by an official photographer employed by them. The defendants say that it was taken by another employee, who was not employed as a photographer, and was a snapshot taken for his own purposes. They say that it later came into the possession of a lady resident in California, who supplied it to Mr. Miller. I do not think that it matters which of these accounts is ultimately found to be correct, if this action is tried. Even if the plaintiffs have copyright in the photograph, it is no more than a snapshot, and the use of it in breach of copyright cannot, in my judgment, possibly harm them. It could, by contrast, gravely impair the defendant's plans for launching the book if it now has to remove that inserted photograph.
This is not a case where a defendant has deliberately made use of copyright material for profit or otherwise, and used it in deliberate disregard of the owner's rights. In my judgment, the plaintiff is not entitled to any interlocutory relief in respect of the photographs.
The background is shortly this. Mr. Armstrong, then a senior employee of the plaintiffs, was employed to compile, protect and preserve Mr. Hubbard's personal papers and other biographical material. Mr. Hubbard was then alive and it is said that Mr. Armstrong was allowed to carry out this task on the footing that he would hold confidential all documents and information obtained by him in pursuance of his duties, which documents were to form part of the archives of the Church. Much of the material collected by Mr. Armstrong was given to him, it is said, after he had promised that it would be kept confidential. Later, a Mr. Garrison was employed to write an official biography. Mr. Armstrong was assigned to be his researcher. Then Mr. Armstrong left the church. Mr. Garrison's engagement was also terminated, though that was later. Mr. Armstrong took with him a substantial amount of what I shall call "the archival material".
The plaintiff took proceedings in the courts of California to secure the return of this material and to prevent disclosure of any of the contents. A temporary restraining order was made on 25th August 1982 requiring Mr. Armstrong to surrender all the archival material to the court. The action then came before Judge Breckenridge in the Californian Superior Court in May 1984. On 20th June he gave a memorandum of intended decision. Shortly stated, one defence advanced by Mr. Armstrong was that he was entitled to remove the material and to lodge it with his attorney for his own protection. He reasonably believed, he said, that possession of this material would afford him some protection against unlawful harassment (or worse) by the Church, under practices, in particular the fair game doctrine, which have been sufficiently described in other decisions of the English courts, to which I shall later refer.
Judge Breckenridge, while holding that Mr. Armstrong had been guilty of conversion, found on the facts that this defence was amply made out. The documents, he said, were to remain with the court pending a further
hearing of the action. I should at this point cite the decision of the learned judge as to what was to be done with the documents in full. He said:
"As to the equitable actions [that is, breach of confidence and constructive trust], the court finds that neither plaintiff" --
I interpose to say that Mr. Hubbard's wife, Mary Sue, was joined as a party --
"has clean hands and at least as at this time is not entitled to the immediate return of any document or object presently retained by the court clerk. All exhibits received in evidence or marked for identification, unless specifically ordered sealed, are matters of public record and should be available for public inspection or use to the same extent that any such exhibit would be available in any other law suit; in other words, they are to be treated as henceforth no differently than similar exhibits in any other case in Superior Court. Furthermore, the 'inventory list and description' of materials turned over by Armstrong's attorney to the court shall not be considered or deemed to be confidential, private or under seal.
"All other documents or objects presently in the possession of the clerk not marked herein as court exhibits shall be retained by the clerk, subject to the same orders as presently in effect as to sealing and inspection until such time as trial court proceedings are concluded as to the severed cross-complaint."
And then he goes on to say when the conclusion of the case is to be taken as occurring.
I shall return to the outline history of the litigation in a moment. First, I should say something about the documents, publication of which or of information derived from which is sought to be prevented in this action. The particulars in the application cover eight categories of documents; four were abandoned in the course of the hearing when it became plain that the Church itself had brought them into the public domain. The remainder can be categorised under two heads.
This category comprises documents which became exhibits during the hearing before Judge Breckenridge. There
are two subcategories. The first comprises diaries kept by Mr. Hubbard during the years 1927 to 1929. In 1929 he was 18 years old. The second is a letter written to Mr. Hubbard by his mother, also in 1929. The case for the defendants is that they obtained copies of these documents from a Mr. Atack who in turn obtained them from a photocopying agency employed by Mr. Flynn who was Mr. Armstrong's attorney, and that they were supplied to Mr. Armstrong at a time when the order made by Judge Breckenridge that exhibits should be available to the public was in force. The plaintiffs say that this is impossible because the order did not remain in force for a sufficient period for that to be done.
The tangled history of the Californian litigation is shortly this. The memorandum of intended decision became a decision and an order on 20th July 1984. Until then it was, as its title suggests, an intended decision; the intention being announced to enable the parties to seek other relief in a higher court before the order was made. In fact the plaintiff obtained a temporary stay order from the Court of Appeal on June 25th which was vacated on 18th July but reinstated on 20th July 1984 by the Supreme Court of California. That was the very day on which Judge Breckenridge made his order. No disclosure, it is said, could properly have been made up to or after 20th July. Then, on the 23rd August, the temporary stay order made by the Supreme Court was vacated. It was re-entered on 28th August. That gap of five days has been referred to in argument, as "the first window". Then, on 15th November the temporary stay order was again vacated by the Supreme Court, but on 21st November an injunction w~s entered by the Ninth Circuit Federal Court of Appeals. That is the second window. Then, on 19th December the trial exhibits, which had been ordered to be unsealed by Judge Breckenridge, were made available to the public for viewing. However, a temporary restraining order stopping that was made on 20th December. That is the third window.
The plaintiffs say that the documents could not properly have escaped through these windows because no order
vacating a stay order by the Court of Appeal or the Supreme Court would release the documents from the stay order unless and until the order vacating that stay order had been made an order of the Superior Court of California that is, Judge Breckenridge's court - a process which they say, with the support of expert evidence from Californian attorneys, would take some five to six days. So the window was never open except for the very short period on 19th or 20th December.
The answer given by the defendants is that although the Supreme Court would not act on an order vacating a stay order by releasing documents in its custody until that order had been made an order of the Superior Court, there was nothing to prevent Mr. Flynn, who was the attorney for a party in the appeal, from releasing copies of exhibits which he had in his possession in accordance with Judge Breckenridge's original order as soon as the order vacating the stay order had been made and perfected by the Court of Appeal or the Supreme Court; a process which clearly would take less time than the communication of that order to the Superior Court and its entry in the Superior Court. On that footing the windows were open for a significant period.
Reliance is placed by the defendants on what is alleged to have been said by Mr. Flynn to the plaintiffs' Californian Attorney in relation to documents which he had. I do not propose to deal with this evidence in detail; it is hearsay evidence and, more importantly, too vague to found any conclusion.
I accept that there is an issue whether there was a period during which Mr. Armstrong and Mr. Flynn were entitled to release to others copies of exhibits in the possession of Mr. Flynn or, for that matter, in the possession of Mr. Armstrong (if there were any). But the claim that there was never the faintest chink in the window seems to me flimsy.
This comprises documents, which were never exhibited, and which, it is said, were throughout sealed.
There are two subcategories. The first is a letter written by Mr. Hubbard to his first wife, Polly. The second comprises three letters written by Mr. Hubbard to one Helen O'Brien in 1953. The defendants founded an argument on Judge Breckenridge's order. The argument, as I understand it, is this. It is said that the first part of the order related to exhibits - and there were of course exhibits other than those derived from archival material - and declared them to be available for inspection, save only for certain specified exhibits put in evidence and sealed by specific orders made in the course of the proceedings. Then it is said that the next sentence: "The inventory list and description shall not be considered or deemed to be confidential," relates to all the archival material. On that view the remainder of the decision, "all other documents or objects shall be retained by the clerk, subject to the same order as are presently in force," apply to other documents put in evidence in the proceedings, and not the archival material.
That seems to me a strained construction. I would construe the first paragraph as dealing with exhibits, and the last sentence of that part as referring to the list of the archival material and not to the archival material itself.
The next paragraph, "All other documents ..." then catches the archival material other than that put in evidence. Any other construction seems to me to give rise to wholly capricious results.
However, that is not the end of the story. Mr. Miller says that he did not in any event obtain these documents from Mr. Armstrong or his attorney, or anyone connected with them. His evidence is that he obtained the letter to Polly from a source which he is reluctant to disclose and that he obtained the documents in the second subcategory from a Mr. Ronald Newman. That is all I need say about the factual background.
The conclusion I reach is that as regards the first category, the plaintiffs claim that the defendants could not
properly have obtained the documents under an order which specifically released them into the public domain is flimsy. There is a triable issue whether the defendants obtained the second category of documents directly or indirectly from Mr. Armstrong or Mr. Flynn or, as Mr. Miller claims, from another source unaffected by any duty of confidence to the plaintiff. The decision of the judge who hears that issue may well turn on the view he takes of the credibility of Mr. Miller's evidence.
With that in mind, I turn to the two grounds advanced to restrain publication or use of these documents and the information contained in them.
The plaintiffs' case is that Mr. Armstrong owed it a duty to keep the archival material confidential and that the plaintiffs' correlative right to prevent disclosure by Mr. Armstrong is binding on any person who comes into possession of the archival material directly or indirectly through a breach of that duty by Mr. Armstrong. The first difficulty which confronts the plaintiffs is that it is well settled that the only person who can complain of a breach of confidence is the person to whom the duty of confidence is owed (see Fraser v. Evans  1 Q.B. 349). The plaintiffs cannot rely on the duty of confidence, if any, in respect of the diaries which was owed to Mr. Hubbard. Similarly, the plaintiffs cannot rely on the duty of confidence, if any, owed to the writers or recipients of the letters (the letter to Mr. Hubbard from his mother, or the letters written by Mr. Hubbard in category B). Prima facie the writer or the recipient of each of the letters is the only person who could assert confidentiality.
Mr. Newman had two answers to this difficulty. The first was that the material in respect of which a duty of confidence was owed by Mr. Hubbard was entrusted at his direction or with his consent to a Church of which he was the founder and which is in substance the living embodiment of his beliefs and teaching. In the unusual circumstances of
this case, it is said, the Church can claim to enforce the duty of confidence owed to Hr Hubbard in his place. The second was that apart from any duty of confidence owed to Mr Hubbard, Mr Armstrong owed a duty to the Church as his employer on whose behalf he collected material to be stored in the archives. In considering these submissions it is, I think, important to bear in mind that the duty of confidentiality owed to Mr Hubbard and the duty of confidentiality owed by Mr Armstrong to the plaintiffs as his employer are separate and distinct. Prima facie the maker of a diary intends the contents to be kept confidential, and if he entrusts it to another a duty of confidentiality arises.
An employee may also in the course of his employment come into possession of material (for instance a list of customers and their requirements) which the employer has a legitimate interest in keeping confidential. It does not follow from the fact that Mr Hubbard had or may have had an interest in keeping confidential the contents of his diary that Mr Armstrong owed a similar duty to the plaintiffs. The plaintiffs must be able to show that there is something in the nature of the material gathered together by Mr Armstrong or in the terms of his employment which give rise to a duty not to divulge that material to anyone outside the Church. It can hardly be said that that duty extended to every part of the vast mass of material collected by Mr Armstrong from a wide variety of sources -- in part, at least, for the purpose of preserving it for Mr Hubbard's biographer.
Mr Newman's answer to this difficulty was that in the circumstances of this case the Church can be regarded as standing in Mr Hubbard's shoes and can avail itself of the same rights of confidentiality which he had. Alternatively, it is said, the material gathered together by Mr Armstrong dealing, as it does, with the development of Mr Hubbard's personality and with the
discoveries or revelation which lead to the foundation of the Church is part of the arcanum of the Church and should not be divulged to those outside the Church. These are novel arguments and seem to me to invite an extension of law which the court should be cautious of making in interlocutory proceedings. Moreover the argument leads Mr Newman into a further difficulty.
The affairs, the doctrines and activities of the Church are a matter of legitimate public interest and concern. An official investigation into these matters was carried out by the late Sir John Foster many years ago and following his report entry by alien scientologists into the United Kingdom was barred. I should add that this bar was lifted in 1980. The doctrines and activities of the Church have been considered by the courts in a number of cases, in particular Re B & G Minors [1985) Family Law Reports 134, where Latey J. deprived a father and stepmother of the custody of infants which he would otherwise have given them on the grounds that they were members of the English branch of the Church. That decision was affirmed by the Court of Appeal. Of course the Church was not a party to those proceedings, but that point was not overlooked and indeed was dealt with specifically by Dunn L.J., who said at p.502:
"In this case it was in the interests of the children that the judge should not only hear evidence about scientology but should make definitive findings upon it, otherwise he could not assess the risk to the children if they continued to be brought into contact with the father. In any event, no application was made to the judge for the Church to be joined as a party and there has been no appeal against the refusal of the Registrar to allow an application for the Church to be joined in this court."
In the Court of Appeal the decision of the trial judge was attacked on the ground that he had made observations critical of Mr Hubbard and that these were matters which ought not to have been taken into account. As to that Dunn L.J. said, also on p.502:
"It seems to me, with respect, that it was unnecessary for the judge to have gone into the detail in which he did, but when one is considering a set of beliefs it is, I should have thought, relevant to know the sort of person who is the original proponent of those beliefs."
Purchas L.J. similarly observed on p.508:
"The behaviour of Mr Hubbard was an integral part of the whole context of mainline scientology, an examination of which the judge had a duty to make and which he was entitled to announce as part of the background justification for his findings."
As I have said, the doctrines and activities of the Church are matters of legitimate public concern. Mr Hubbard is, as Mr Newman himself forcefully expressed it, the revered founder of the Church. He is believed by members of the Church to be someone whose appearance on this earth was an event of cosmic significance. Mr Hubbard's life history and the story of the psychological discoveries made by him and of his revelations are matters in respect of which large claims are made in Mr Hubbard's writings and by the Church. In these circumstances the life of Mr Hubbard, his relationship to the Church and the circumstances in which the Church was founded are also matters in which the public has a legitimate interest. Of course that does not mean that everyone has carte blanche to disregard every bond of confidence affecting any matter communicated to them and concerning Mr Hubbard. The public interest in maintaining the bonds of confidentiality must be weighed against the legitimate public interest in the affairs of the Church and its history and the history of its founder.
However, I have read Mr Miller's biography, or the larger part of it, and it is to my mind clear that the public interest in the affairs of the Church and in the life of its founder far outweigh any duty of confidence that could possibly be owed to Mr Hubbard or the Church. The diaries covering the years when Mr Hubbard was between 16 and 18 years old contain direct contemporaneous evidence of his activities and thoughts at the
time. They are essential if his early development and achievements, for which, as I have said, large claims are made by the Church, are to be properly evaluated. The letter to his mother is a letter of the kind that an affectionate and responsible parent would write to a son starting at a new school. It is of importance in understanding his relationship to his parents. It is evident from reading the letter to his wife that it was written at a time which was critical in the development of ideas and beliefs that later became the doctrines of the Church. The letters to Helen O'Brien similarly relate to Mr Hubbard's relationship to someone who had given financial backing to an earlier movement called Dianetics founded by Hr Hubbard, which later evolved or was subsumed into the Church. Mr Miller interviewed Helen O'Brien or had telephone conversations with her and the letters form a natural part of the narrative of his account.
It is in my judgment plain beyond question that the legitimate public interest in Mr Hubbard as the founder of the Church in the circumstances in which it was founded and in motives which led to its foundation far outweigh any duty of confidence that could conceivably attach to any of the documents in issue, even assuming -- contrary to my view -- that Mr Armstrong owed the same duty of confidence to the Church which he owed or would have owed to Mr Hubbard if living.
Shortly stated, the Church is an active proselytising church and in its efforts to obtain converts the personality, qualifications, history and intellectual and moral development of its founder are matters on which the Church itself relies. The public equally has an interest in evaluating the image of Mr Hubbard so projected. The Church having collected this material cannot claim a monopoly in it and release to the public only that information which it chooses to make available.
The order of the Californian court
I can deal with this point shortly. Mr Newman referred me to Dicey and Norris and the well-settled principle that the judgment of a foreign court may be enforced if and to the extent to which it creates an obligation and is recognised by English courts as made by a court having jurisdiction and is not tainted by fraud and if the enforcement is not contrary to English public policy or in breach of the rules of natural justice.
I do not find it necessary to examine the foundations or limits of this doctrine or the circumstances in which the English courts will grant injunctive relief. As I understand the position, while the Superior Court has decided that the archival material was the property of the plaintiffs and that Mr Armstrong was guilty of conversion, it has not finally decided that in respect of all its archival material Mr Armstrong owes a duty to the plaintiffs to keep the archival material and all information derived from it confidential which is enforceable against him and all other persons who have come into possession of copies of any of this archival material and of information derived from it. The sealing orders and all the orders of the Superior Court were interlocutory and cannot be relied on as founding such a duty. Moreover, in so far as considerations of comity have to be considered, they must be weighed against -- and in my judgment are plainly outweighed by -- the public interest to which I have already referred.
The plaintiffs became aware of Penguin Books' intention to publish a biography of Mr Hubbard written by Mr Miller at latest in May of this year. They had been aware that Mr Miller was writing a biography and that he had been in contact with Mr Armstrong for some time. They were told by Mr Armstrong in the Summer of 1986 that Mr Miller might well have some archival material. Nothing was done to obtain any undertaking by Mr
Miller that this material would not be used. The proof copies were available and were circulated in confidence to persons concerned by Penguin Books on August 5th. The plaintiff obtained a copy of the proofs and exhibited it -- wrongly described as a manuscript -- to the affidavit in support of the application. No explanation has been given as to how or more importantly when they obtained a copy of the proofs. This application was made on 29th September, by which time the plaintiffs must have known that the printing of the first run was complete and that the book was ready for distribution to wholesalers and retailers. The application was thus made at a time, whether calculated or not, when it would give rise to the greatest possible damage and inconvenience to Penguin Books.
In the absence of any evidence as to when the plaintiffs obtained a copy of the proofs and of the reasons for delaying thereafter in instituting proceedings, if there was delay, the apparent delay is, in my judgment, in itself sufficient to bar any claim for interlocutory relief.
Mr Newman submitted that the plaintiffs could not be criticised for delay, which could not on any view exceed the two months since 5th August, bearing in mind the huge task of relating the material in the book to the thousands of documents in the archival material. The short answer to that submission is that it is plain on a cursory reading of the book that substantial use is made of Mr Hubbard's diaries which they must have known were part of the archival material.
Mr Lightman submitted that the plaintiffs do not come to this court with clean hands. He relied upon the fact that the plaintiffs obtained a copy of the proof, said to have been circulated within a narrow circle and which was plainly the subject of confidence, in circumstances which are unexplained. He also relied upon the doctrines of the Church which have been
frequently commented on, in particular in Hubbard v. Vosper  2 Q.D. 84.
On this last point Mr Newman submitted that unlike the Vosper case no link exists between the doctrines and conduct complained of and the matters in issue in this action. He reminded me of the often cited passage in the judgment of Lord Chief Baron Eyre in Derry v. Winchelsea 1 Cox 318 that:
"The principle that a litigant must come to court with clean hands does not mean a general depravity, it must have an immediate and necessary relation to the equity sued for. It must be a depravity in a legal as well a moral sense."
I do not propose to go into this aspect of the case, save only to observe that one statement of policy to be found in the writings of the Church is in substance that litigation may be resorted to in order to stifle criticism. This litigation to my mind precisely answers the description of oppressive litigation, that is, litigation (which the authors equally clearly had in mind) which is not bona fide launched to protect any legitimate interest of the church in preserving confidentiality in information contained in Mr Miller's biography.
For these reasons I have reached the conclusion that this application is both mischievous and misconceived and must be dismissed and in my judgment dismissed with costs to be taxed and paid forthwith.
Anything else, Mr Lightman?
MR LIGHTMAN: On the costs I would ask your Lordship to direct that the costs should be paid on an indemnity basis.
MR JUSTICE VINELOTT: Well, Mr Lightman, these are interlocutory proceedings. What I can do is to order that the costs be taxed and paid forthwith on a common fund basis, but to reserve for a future argument, in the light of any evidence adduced at the trial, the question whether they should be taxed again upon some other basis.
MR LIGHTMAN: If your Lordship pleases.
MR JUSTICE VINELOTT: I do not think on an interlocutory application I really would be justified in making an order --
MR LIGHTMAN: One other small matter on costs I would like to mention to your Lordship. I do ask your Lordship to ask for a certificate for three counsel. Can I explain to your Lordship the special circumstances?
MR JUSTICE VINELOTT: Yes.
MR LIGHTMAN: Your Lordship will have in mind the time scale when this matter came and the immense amount of work that has had to be expended throughout the period on preparing our evidence to get this matter proceeding. In those very special circumstances I do ask your Lordship for certificate for three counsel.
MR JUSTICE VINELOTT: Yes. Mr Newman?
MR NEWMAN: My Lord, there are two matters relating to costs. Your Lordship has ordered standard costs rather than indemnity costs, but I would submit that your Lordship should reconsider that part of the order which says to be taxed and paid forthwith for this reason, my Lord: that at the trial all sorts of evidence may emerge which would put a different complexion or may put a different complexion on matters, and I would submit that this is an example of an application where your Lordship ought to make what is the usual order which is defendant's costs (inaudible) and then if at the trial matters emerge which put a different complexion -- and the plaintiffs were to win despite, I appreciate, your Lordship's observations today -- they would not have to pay the costs of this application. On the other hand, if they lose then they would. That, in my respectful submission, is the fair balance which I ask your Lordship to make.
MR JUSTICE VINELOTT: Mr Newman, I had of course considered before I came into court whether I should make that form of order which is -- I will not say the usual order -- but the one most frequently made or order payment of costs to be taxed forthwith. I have come to the conclusion, for reasons which I think will be apparent when reading my judgment, that this application made in the circumstances in which it was made and at the time when it was made was one which ought not to have been made, at least without further evidence of the kind which I have already explained. In the circumstances I think that the costs should be taxed and paid forthwith.
MR NEWMAN: If your Lordship pleases. I would resist my learned friend's application for certificate for three counsel. Of course I would not dream of opposing a submission on the basis that it was appropriate to have leading counsel and one junior
counsel, but whilst it may be wholly appropriate on a solicitor and a client basis for those instructing my learned friends to have briefed three counsel, on a party and party basis of taxation it would not, in my respectful submission, be reasonable to order a certificate for three counsel.
MR JUSTICE VINELOTT: Mr Newman, I am mindful of the fact that you have not had the advantage of leading counsel and that you have had to manage with the assistance of one junior, but I think the volume and complexity of the evidence in this case and the shortness of the time scale was such that the defendants were entitled to have that additional assistance.
MR NEWMAN: If your Lordship pleases. The only other matter is this: arrangements are in hand -- I am not quite sure how advanced they are -- to move to the Court of Appeal hopefully this afternoon. Even appreciating the findings of your Lordship and the way in which your Lordship has expressed them, may I ask this: that your Lordship will in fact request my learned friend to give an undertaking until the end of today. Now, that cannot make any difference in terms of distribution.
MR JUSTICE VINELOTT: Yes, I cannot believe that anything else is going to be done today. What I would like ideally is for an undertaking to be given for a period which will suffice to enable the matter to be brought to the Court of Appeal and for the Court of Appeal then to decide, having regard to its other commitments and to the nature of the case and the urgency, when the case will be heard and whether any interlocutory orders should be continued in the meantime. As I understand it, arrangements are in hand for the matter at least to be mentioned in the Court of Appeal today and I hope that an undertaking will be forthcoming to cover today.
MR LIGHTMAN: Might I take instructions? (After a pause) Can I give an undertaking until the hearing before the Court of Appeal or, say, four o'clock today.
MR JUSTICE VINELOTT: Let us say 4.30.
MR LIGHTMAN: Can I explain, it is not a matter that any time is unimportant.
MR JUSTICE VINELOTT: Of course, I am very well aware of the --
MR LIGHTMAN: If I can give an undertaking until 4.30 or the hearing before the Court of Appeal, whichever is the earlier, I shall be grateful.
MR JUSTICE VINELOTT: For my part, if it becomes necessary to make a further application because the court of Appeal cannot even have the matter mentioned then I will be available to hear it.