Update 23 June 2025: Former MP Charlie Elphicke has had a new appeal rejected by a High Court judge in relation to legal costs he has been told to pay The Sunday Times over his discontinued libel case.
Elphicke argued that the amount he should pay should have been reduced by more than 20% given the “serious nature” of the “misconduct” carried out by Times Media in failing to preserve evidence.
However Mrs Justice Hill said this was a “substantial reduction, particularly given the high level of [Times Media’s] costs claimed” and that the decision was “comfortably within” the discretion of the previous judge.
Elphicke had been ordered in November to make an interim payment of £229,848.41 to Times Media, weeks before he submitted an earlier appeal, which was also rejected.
Elphicke also argued that he was “double penalise[d]” by being ordered to make an interim payment but Mrs Justice Hill said he had made “no arguable case” that the decision erred in principle. Other grounds of appeal were also refused.
Original story 15 October 2024: 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.
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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