Jonathan Jason Kingsley v Kim Macaskill

Having been assisted by both Counsel, I am going to make the following Order. (1) The Defendant shall, by 4.30pm on 19.8.26, file a final version of the Amended Defence: (a) verified by a statement of truth (CPR PD17 §1.4); (b) including any further particulars; and (c) accompanied by any further evidence. Thereafter any response evidence by 4.30pm on 16.9.26 (Claimant) and reply evidence by 4:30pm 30.9.26 (Defendant), an agreed bundle by 4:30pm on 7.10.26, skeleton arguments exchanged and filed at 4:30pm on 14.10.26 and an agreed authorities bundle filed by 4:30pm on 15.10.26. (2) The Defendant’s application dated 6.7.26 for permission to file an Amended Defence will be considered at the CMC, currently listed for 20.10.26, by reference to the documents filed in accordance with paragraph (1) above, and with no need for any fresh application notice. An increased time estimate of ½ day will be needed for the CMC. (3) Subject to paragraphs (1) and (2) above, the Defence (filed on 15.1.26) is struck out. (4) Subject to paragraph (5) below, the Defendant shall pay the Claimant’s costs of the application filed on 19.5.26 including the costs of today’s hearing, to be the subject of summary assessment on the papers by Fordham J, to be payable on a date to be specified by Fordham J. (5) The following timetable applies for written submissions limited to (a) the appropriate amount of the summary assessment (based on a served costs schedule giving an overall sum of £101,262) and (b) the appropriate date to be specified for payment of costs (CPR 44.7): (i) 4.30pm Friday 17.7.26 (Defendant’s submissions); (ii) 4.30pm Wednesday 22.7.26 (Claimant’s reply).

Today’s hearing was listed, by an order 6 weeks ago (3.6.26), to deal with the Claimant’s application (filed on 19.5.26) which had sought a Proposed Order. Para (1): to strike out the Defendant’s 3-page Defence (filed on 15.1.26), pursuant to CPR 3.4(2). Para (2): to enter judgment for the Claimant with remedies to be assessed, pursuant to CPR PD3A §4.2. Para (3): costs. The claim relates to two Linked-In posts by the Defendant (17.7.25 and 1.9.25) whose publication and meanings are not in dispute. The Claimant says they constituted defamation and data protection breaches, and that the first Linked-In post also constituted malicious falsehood. The Defendant denies all claims and wishes to rely on statutory defamation defences of truth, honest opinion and public interest.

Proposed Order para (1) has been resolved by agreement. It was expressly accepted by the Defendant’s representatives last Friday (10.7.26) that this part of the Proposed Order was not opposed. In essence, that is because the Defence does not comply with the rules in CPR PD53B. The concession was on the basis of the consequence being that the Claimant should have an opportunity to seek permission to file an Amended Defence.

Proposed Order para (2) has also fallen away. The Defendant’s representatives have put before the Court a replacement 36-page Draft Amended Defence (6.7.26) for which a cross-application was filed (6.7.26). The Defendant’s newly-instructed Counsel Mr Fitzmaurice – acting pro bono through the charity Advocate – had alerted the Claimant’s representatives 3 weeks ago (23.6.26) that he was instructed to draft the Amended Defence and make the cross-application. The Claimant’s solicitors for their part wrote several letters distinguishing between the strike-out (ie. Proposed Order para (1)) and consequences (ie. Proposed Order para (2)). Proposed Order para (2) was opposed by the Defendant. The Claimant has not pursued it. Mr Helme for the Claimant has, very fairly, drawn attention to the principle that: “where the court holds that there is a defect in a pleading, it is normal for the court to refrain from striking out that pleading unless the court has given the party concerned an opportunity of putting right the defect, provided that there is reason to believe that [they] will be in a position to put the defect right” (Kim v Park [2011] EWHC 1781 (QB) at §40; cited in the White Book 2026 at p. 96). Mr Helme accepts that whether any order for strike out affords or denies this opportunity is an important question. He accepts that, if Proposed Order para (2) had been pursued by the Claimant, the Court would have been addressing its mind to that question, whether or not the Court was formally dealing with the cross-application. He also accepts that, in circumstances where Proposed Order para (2) is not pursued, it is clear and explicit that the Defendant is not being shut out. The terms of my order – the contents and language within which were agreed – provide clarity as to how the matter is to be dealt with, in circumstances where the Claimant has made clear its objections to permission to amend in the terms of the Draft Amended Defence and the currently adduced evidence. The Defendant will have the opportunity to address these concerns, in refiling a Draft Defence under the timetable in my Order. At this hearing, the cross-application has not been pursued on behalf of the Defendant. It is all deferred to the CMC, currently scheduled for October.

That leaves Proposed Order para (3). I will grant Mr Fitzmaurice the short time he seeks to assist me further on two specific questions: the proportionality of costs for the purposes of my summary assessment; and how the Court should approach its accepted power (CPR 44.7) to specify a deferred time for payment of those costs. My decision will be made on the papers and will be embodied in a Court Order which will be publicly accessible from the court records. I am satisfied that the Claimant is entitled to the costs of the application, including today’s hearing. Having considered the sequence of events and the correspondence, I am unable to find a proper basis to limit the costs up to 6 July 2026, as Mr Fitzmaurice invites. Nor can I find a proper basis for deferring the costs assessment to a detailed assessment, whether to address proportionality or to address the time-frame for payment. I accept that the Defendant’s pro bono Counsel and solicitors acted conscientiously in preparing the new Amended Defence, and on the evidence that they did so in circumstances regarding the Defendant’s health which called for circumspection and caution. I also accept that the Claimant was alerted by Counsel on 23 June 2026, and the intention to amend the Defence was significant and clear. It was not raised “almost incidentally”. However, the Claimant’s strike out application had been precipitated by the Defendant’s conscious choice when acting in person, in April 2026, not to amend the Defence in light of objections which are now accepted to have been well-founded. The sort of evidence required to support an adjournment of today on medical grounds was not available, as is accepted. By the time the conscientiously drafted Amended Defence landed, the very substantial portion of the costs had been incurred and this hearing was imminent. There was no clear and unqualified proposal from the defence team, obviating the need for today’s hearing, not least because of the question marks about whether the cross-application was to be pursue and because of a deferred costs position being insisted on. The Claimant’s representatives have made clear in open court that it is not the Claimant’s intention to use a costs order to deny the Defendant the opportunity to advance a defence to the claim on the merits. But nothing in the circumstances can serve to deny the Claimant the costs which follow the event, subject only to the two specific points on which I will be receiving written submissions and making a decision on the papers.