The amount former MP Charlie Elphicke has to pay The Sunday Times in legal costs has been reduced after a new judgment that found the publisher failed to “preserve evidence”.
Elphicke, who was jailed for two years in September 2020 after he was convicted of sexually assaulting two women, sued Times Media Ltd for libel over three articles published in The Sunday Times in 2018, including two which referenced an investigation of rape allegations against him.
The former Conservative Party MP for Dover ended his defamation case before it went to trial in 2022, but asked to avoid paying the costs of multiple applications made by Times Media, saying the publisher had “wiped” evidence.
Times Media, which defended the libel claim, made a bid for Elphicke to pay costs.
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In a 51-page ruling on Monday, former judge Victoria McCloud found Times Media failed to “preserve evidence” in the case and that it was “appropriate to mark the seriousness” by reducing the amount that Elphicke must pay to 80%.
McCloud said Elphicke argued at a hearing in June 2023 that Times Media “had lost or destroyed critical information” that related to the allegations it made against him, including “the most serious matter [that] was said to be the loss or destruction of a journalist’s electronic telephone information”.
In the ruling, McCloud said “the phone material would have clarified… whether for example the complainant was being inconsistent or whether words were being put into her mouth or whether there was another motivating factor such as money, rejection, or pressure from anyone else”.
The former judge added that Times Media had “ample opportunity to preserve the electronic information concerned”.
A hearing in June 2023 heard that Times Media’s lawyers said its “journalist’s loss of phone was inadvertent” and that Elphicke had “chosen not to pursue issues relating to the defendant’s disclosure before discontinuing his claim”.
According to the judgment, the publisher argued that Elphicke “had litigated his claim aggressively, making serious allegations against the defendant and its journalists, its witness and the complainant”.
But McCloud ruled that Times Media had “a duty to preserve evidence when on notice of proceedings or likely proceedings”.
She added that “failures to preserve evidence when on notice to do so, and wrongful collateral use of witness statements” are “not matters which require significant consideration of documents and attendance notes: they go to the heart of the fairness of proceedings”.
Elphicke was found guilty of three counts of sexual assault committed in 2007 and in 2016 after a trial at Southwark Crown Court in 2019.
After the ruling, Elphicke said the judgment was “damning”.
He added: “It’s unprecedented for any media business to be caught misconducting themselves like this.”
Times Media has been approached for comment.
Speaking about the Elphicke case and the legal system under which it was brought, journalist Gabriel Pogrund previously told Press Gazette: “He sued us before, during and after his time living at Her Majesty’s pleasure in prison, and I would pose questions about the legal system that enables that to happen.”
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