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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> HM Attorney General v MGN Ltd [2009] EWHC 1645 (Admin) (23 June 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/1645.html Cite as: [2009] EWHC 1645 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		23 June 2009

1. LORD JUSTICE RICHARDS: By these proceedings Her Majesty's Attorney General alleges that the defendant, MGM Limited, was in contempt of court by publishing in the Yorkshire edition of the Daily Mirror, on 23 April 2008, an article relating to a man called Mustaf Jama, who was at that time in prison facing trial for murder. The article is said to have been in breach of the strict liability rule under sections 1 and 2 of the Contempt of Court Act 1981. MGM admits and apologises for the contempt. The issue for us to decide is the appropriate sanction for that contempt.
2. The case is subject to a reporting restriction made under section 4(2) of the 1981 Act on 26 February 2009. The order remains in effect pending the conclusion of the current criminal proceedings against Mustaf Jama.

The context

3. On 18 November 2005, Police Constable Sharon Beshenivsky was shot and fatally wounded in the course of duty when answering a call to attend the scene of a robbery in Bradford. Three men had entered the premises of a firm of travel agents armed with firearms and a knife. PC Beshenivsky was shot at close range and killed as they were leaving the premises. The other officer with her, PC Milburn, was also shot in the chest but survived.
4. During the course of November and December 2005, five men were arrested and charged with the murder of PC Beshenivsky and with robbery and other firearms offences. They included two of the three men who had entered the premises, one of whom was alleged by the prosecution to have fired the actual shot that killed the officer and the shot that wounded the other officer. The other three men were alleged to have been waiting in the locality and to have been part of the plan to commit the robbery. All five of those arrested at that time were tried and convicted at Newcastle Crown Court in December 2006. It should be noted that the trial had been moved from Yorkshire to avoid local prejudice.
5. Mustaf Jama was alleged by the prosecution to have been the third of the men who entered the premises. He managed to evade arrest and subsequently to flee to Somalia. However, in due course he was arrested in Somalia and in October 2007 he was extradited from there to the United Kingdom. On 1 November 2007, he was charged with the murder of PC Beshenivsky and with robbery and various firearms offences. The following day, 2 November, he appeared before Leeds Magistrates' Court and was sent to Leeds Crown Court for a preliminary hearing.
6. On 9 November he appeared at Leeds Crown Court before Wilkie J. A plea and case management hearing was listed for mid January 2008, and a provisional trial date was fixed for 23 April 2008 at Leeds Crown Court. The judge directed that the case was to be listed for mention if there was to be a defence challenge to the trial venue or to Mustaf Jamma's extradition. It appears that defence applications were originally contemplated in respect of both matters, including that of venue, or at least the possibility of an application as to venue was kept open.
7. The application concerning the extradition matter was, or became, an application to stay the criminal proceedings on the grounds that they constituted an abuse of process. There was an interim hearing at Leeds Crown Court on 7 December 2007 before the Recorder of Leeds, at which a timetable was fixed for skeleton arguments. A plea and case management hearing was directed to take place in mid January 2008 before Simon J, who was appointed the trial judge. That hearing was to take place at Newcastle Crown Court where Simon J was due to be sitting at the time.
8. The next hearing in fact took place before him on 22 January 2008. He gave various directions and directed a further hearing for 15 February. The hearing on 15 February again took place at Newcastle Crown Court where Simon J was still sitting. At that point, as I understand it, the defence withdrew or signified its intention not to proceed with an application as to change of venue, thus leaving Leeds as the expected place of trial.
9. It was envisaged that the application for a stay would be heard in early March, but the next hearing did not take place in fact until 2 April. At that point the substantive hearing of the stay application was directed to take place before Simon J in London, where he would then be sitting, in the week commencing 30 June. The application was duly heard at Woolwich Crown Court on 30 June and 1 July. Simon J handed down judgment dismissing the stay application on 14 July.
10. This meant that the trial could now proceed. As stated, it had been envisaged that it would take place at Leeds. On 30 July 2008, however, as a result of submissions made by defence and prosecution in the light of the newspaper article with which these proceedings are concerned and to which I will turn in a moment, Wilkie J directed that the trial venue should be Newcastle Crown Court. He further directed that the trial be fixed to commence there on 13 January 2009.
11. In the event, the trial commenced on that date, but the jury were unable to agree as to their verdicts. A retrial was directed. It is due to start on 13 July 2009, again at Newcastle Crown Court. That is why a reporting restriction had to be placed on these contempt proceedings.

The newspaper article

12. The article in question had a headline in capitals "SHARON SUSPECT PRISON PROTEST". Beneath that there appeared a smaller headline "Somalian thug hates all women and whites", alongside what appears to have been a photocopy of part of Mustaf Jama's prison file. The article expressly stated that the newspaper "has seen top secret prison files relating to Jama". The extract reproduced alongside the second headline described his Security Category as "A (High Risk)" and included a photograph of him. Underneath it there appeared the caption "BAD RECORD Jama is a known risk".
13. The article, which was described as exclusive, read as follows:

"A SUSPECTED cop killer is refusing to co-operate with anyone white or female in jail - claiming it is an abuse of his human rights.

Mustaf Jamma 27, sparked an international manhunt after he allegedly dressed as a woman, using a full-face Nijab veil, head to toe robes and his sister's passport to flee Britain after the shooting of rookie policeman Sharon Beshenivsky.

His behaviour in Wakefield jail where he awaits trial for the murder of mum-of-five Sharon, 38, and robbery and firearms offences, has appalled prison staff. The Mirror has seen top secret prison files relating to Jamma.

He came here with his family from war-torn Somalia in 1993 and was released from a sentence for robbery and burglary six months before the 2006 Bradford robbery in which PC Beshenivsky died.

The case sparked fury after officials ruled that it would be unfair to deport him in case he was shot by a rival tribe.

Jamma used the Human Rights Act to avoid deportation from the UK - now he is using it again behind bars.

An insider told the Mirror: 'He is refusing to associate with white prisoners or staff, especially white women, claiming it is an infringement of his human rights. Given his record and the fact he is accused of getting out of the country dressed as a woman, you really could not make it up".

Jamma also moans about random drug tests, which are compulsory as he has been convicted of drug offences in the past. But he has made it difficult for staff to carry them out.

His attitude towards white people means he has been assigned his own Muslim prison officer to look after him.

Jamma, who also claimed his prayer meetings were 'bugged', has been moved from the jail's F to B wing as a result of problems with white inmates.

Insiders claim Jamma has been 'radicalised' since his return to Britain from Somalia last November.

He has been in regular contact with Muslim extremist Yassin Nassari.

He was moved to Wakefield jail from Belmarsh last year after he was found with bomb making information.

It was feared Nassari, 28, of Ealing, West London was plotting with other extremists to build a device in the jail. The source went on: 'There is a wide-spread belief Jamma has been exposed to the views of extremists behind bars.'

'He is obviously classified as high risk and posed no problems when he first arrived at Wakefield.'

'But he has been in regular touch with Nassari and his behaviour has changed markedly. He refuses basic stuff like picking up mail and gets other Muslim prisoners to do it so he does not have to associate with whites.

He has a particular dislike of white women and female members of staff.

Jamma is due to stand trial at Newcastle crown court later this year."

14. In the middle of the article there appeared a photograph of PC Beshenivsky with the caption "MURDERED PC Beshenivsky".
15. The article was published in that form on 23 April 2008 in the Yorkshire edition of the Daily Mirror, which has a circulation of just over 144,000 copies. A further 30,000, or so, copies of the Yorkshire edition with this same story were circulated in the Lancashire area. This constituted in total something of the order of ten per cent of the Daily Mirror's daily circulation.
16. All other editions of the newspaper for that day, including the London edition, carried a much shorter version of the story which does not give rise to the concerns that underlie the present proceedings.

The proceedings

17. Publication of the article prompted the solicitors acting for Mustaf Jama to write to the Recorder of Leeds to express their concern. The letter was passed on to Simon J who referred it to the Attorney General. When written to by the Attorney General's office, MGM initially denied breach of the strict liability rule, but since the commencement of proceedings a breach has been admitted.
18. Sections 1 and 2 of the 1981 Act provide as follows:

"1. In this Act "the strict liability rule" means the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so.

2-(1) The strict liability rule applies only in relation to publications, and for this purpose "publication" includes any speech, writing ... or other communication in whatever form, which is addressed to the public at large or any section of the public.

(2) The strict liability rule applies only to a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced."

The submission made by Mr Philip Havers QC on behalf of the Attorney General, and not resisted by Mr Andrew Caldecott QC on behalf of MGM, is that the prejudice or potential prejudice created by this article is self-evident. The following matters are relied on, in particular, by the Attorney General. First, the reference to Mustaf Jama's previous convictions for robbery, burglary and drug offences. It is submitted that such references may well have prejudiced a potential juror against him both generally and specifically, given that one of the charges he was facing was a charge of robbery. A further point taken is that the assertion that he had been convicted of drug offences was itself false. He has no such convictions.

19. The second main submission is that the reference to his radicalisation and the inferential suggestion that he is sympathetic to extremist terrorist elements gives rise to obvious prejudice. Thirdly, it is submitted that the reference to his particular dislike of white women and female members of staff was particularly prejudicial, given the identity of the two police officers who had been shot. Fourthly, the reference to him in the second headline as a Somalian thug, and in the extract from his prison file as a Category A high-risk prisoner, again created an obvious risk of prejudice.
20. As I have said, publication of the article caused the trial venue to be changed from Leeds to Newcastle. In acceding to submissions to change the venue because of the article, Wilkie J said this:

"I am acutely aware that this is a case which has very significant resonances for the West Yorkshire area in particular and that therefore although the publication is in a national newspaper, it would be avidly read within that area and may stick in the mind. This is enhanced by the fact that the substance of some of the allegations do concern events within a prison within that selfsame area and for that reason it would be particularly memorable for people in that area.

It seems to me that a publication in a national newspaper nine months before a trial date in normal circumstances would have minimal impact on a jury selected from within a particular geographical area. This, however, is not a normal case. The original trial of those who are said to be jointly responsible with this defendant was moved away from Leeds and Bradford precisely for that reason.

Both Prosecution and Defence seem to be agreed that the trial judge, particularly if it were in the West Yorkshire area, would have to draw the attention of the jury to the possibility of some publicity that they may have read and that plainly would serve to bring up any memory that there may be."

21. Wilkie J referred to publication nine months before the trial date. There is a suggestion in Mr Havers' written submissions that at the time of publication there was every prospect that the trial would take place during, or even at the beginning of, the Michaelmas term, that is to say within six months of publication. Given the progress of the abuse of process application, that seems to me to have been an unlikely prospect at that time and, in my view, we must proceed on the basis of a trial in about nine months from the date of publication, rather than significantly earlier.
22. In fact it makes little difference in relation to this particular case whether the lapse of time was likely to be nine months or a shorter period. In either case there was a very real risk that if the trial was to take place in Leeds one or more members of the jury trying the case would have read the article and would recall it and its contents. That is the concern that led Wilkie J to make the ruling he did as regards venue, even though he was contemplating a trial nine months after publication of the article.
23. As Mr Caldecott has made clear in his written and oral submissions, MGM accepts Wilkie J's analysis, and indeed it changed its stance in these proceedings after seeing what the judge had said in support of his ruling. MGM accepts this was an exceptional case with a real risk of prejudicial recall, even after nine months, given that it was in the judge's words "a murder with significant resonances for the West Yorkshire area", and the article also expressly referred to the local prison. Mr Caldecott has also referred us to an analysis of press coverage as revealing that various developments kept the case in the public eye over the years.
24. The point is made, however, that the only actual consequence for the administration of justice was the change in trial venue. No other specific consequences, such as the incurring of unnecessary costs, are alleged by the Attorney General.

Explanation for the breach

25. An affirmation of Mr Marcus Partington, Deputy Secretary and Group Legal Director of Trinity Mirror plc, the parent company of MGM, explains the vetting procedure or "legalling" processes which MGM had in place in April 2008, and how the offending article came to be published despite those processes. All material which is potentially of a contentious nature is sent electronically to a dedicated data base with the title "Legal In". Such material is vetted by Mr Partington or another staff lawyer, or in the case of stories found later in the date by a night lawyer.
26. Once checked and amended as necessary by the lawyer the material is passed on by the lawyer to a second data base entitled "Legal Out". All relevant functions of the newspaper production process, such as sub-editors, have access to the Legal Out data base. All stories in Legal Out are marked either to the effect that they are regarded as presenting no legal problem, in which case they are invariably marked "Legal Ok" at the top, or failing that with suitable amendment or amendments to the copy along with a warning notice at the head of the copy. Such warning may draw attention to any legal marks made in the body of the copy, or may assist with general comments.
27. Mr Partington states that the process requires and expects that individuals involved in the production of stories for the newspaper should make sure that they monitor the Legal Out data base and take note of any legal marks made on the copy intended for inclusion within the published newspaper. For example, a sub-editor responsible for preparing a particular story or page for publication is required and expected to check the copy in Legal out to ensure that any legal marks are taken note of and complied with. In the event of a query or difference of opinion concerning legal marks, the sub-editor or executive to whom he reports, or indeed the editor of the newspaper or other executive, can, and is expected to, discuss the matter with the lawyer so that any contentious issues can be resolved.
28. As to the particular article, Mr Partington has provided the original copy for the story, together with his own legal marks as they appeared in the Legal Out data base. His comments at the time included:

"... this man is awaiting trial which is coming up fairly soon. In those circumstances we should not refer to his record and we need to exercise care with the other bits."

It also stated:

"If we use this please make sure the lawyer sees the subbed version."

29. The sub-edited version of the story was vetted by a night lawyer and approved and, as Mr Partington says, it is apparent that his legal marks were heeded by the sub-editor who prepared this version and that he or she had sent this further version to the Legal In data base for further checking. It was this version which was published, without any problem, in all editions of the Daily Mirror on 23 April, other than the Yorkshire edition.
30. It is apparent that the original copy underwent a sub-editing for the regional edition. However, the sub-edited regional version does not appear in the Legal Out data base. This indicates that it was not shown to the night lawyer, unlike the shorter version, and contrary to Mr Partington's instruction.
31. How that came about is not clear. An affidavit of Mr Nigel Wiskar, Assistant Night Editor with specific responsibility for the paper's Regional Department, whose function is to arrange for the production of regional editions, including the Yorkshire edition, states that he has made specific enquiries for the purpose of establishing precisely how it came about that the legal marks made on the raw copy were not heeded. However, he has not been able to establish which individual handled the story that night, or to explain how the systems failed, though he speculates that the sub-editor concerned may have misinterpreted an entry in the Legal Out data base relating to the edited version used in other editions.
32. Mr Wiskar accepts some responsibility himself, stating that he would have read the story in its raw copy form as well as in its sub-edited form on the page, and he regrets that he did not pick up the risks in the final version. He states that it is, however, assumed that processes are followed and that sub-editors comply with legal marks or refer a sub-edited copy to the night lawyer when required to do so. This is basic procedure.
33. Mr Wiskar also describes the steps he has taken aimed at ensuring that there is no repetition of what happened on this occasion. Perhaps I should add that according to Mr Partington this is the first time in his 15 years with MGM that important legal marks have simply been missed in this way.

Apology

34. In its initial response to the Attorney General MGM expressed regret for the failure of its vetting system, but adopted the stance that there had been no infringement of the strict liability rule. In subsequent correspondence liability has been accepted and MGM has expressed a full and unreserved apology in respect of the publication of the article. That apology is adopted and repeated by Mr Richard Wallis, the editor of the Daily Mirror, in an affidavit sworn in these proceedings.
35. Mr Wallis too states that he has taken steps to emphasise to all his senior executives that it is imperative that they, and all members of staff under their control involved in the production of the newspaper, comply with and follow the systems in place intended to ensure that all material published in the newspaper is published lawfully. In particular, he has stressed the importance of checking the Legal Out data base for legal marks on any item or copy intended for inclusion within the newspaper.

Mitigation and penalty

36. Mr Caldecott submits that the following are material to the issue of penalty for the breach of a strict liability rule in this case:
37. The nature and seriousness of the particular error, including the context in which the publication occurred;
38. The causes of the error, with particular regard to the degree to which the contempt reflects a systemic failure or lack of due concern within the media entity in question for the administration of justice, and conversely the degree to which the defendant had at the time sought to have in place a system which prevents such contempt occurring;
39. The consequences of the contempt for the administration of justice, with particular reference to what steps the trial judge in fact took, whether the interference was permanent or temporary, and other inconvenience factors;
40. The promptness and terms of any apology or assistance to the court;
41. The promptness and effectiveness of any remedial action to ensure against such errors in the future;
42. The fact that the defendant will, bar unusual circumstances which do not arise here, be ordered to bear its own costs and the costs of the Attorney General, which contributes to the overall financial penalty;
43. Due regard to sentences imposed in analogous cases allowing for inflation and any relevant changes within the law.
44. I would accept that all those matters are relevant. In relation to them Mr Caldecott first very properly accepts, on behalf of MGM, that the error in this case was a serious one in the context of a pending trial on very serious charges. As regards the content of the article, it seems to me that the contempt is a really serious one. The article contains numerous potentially damaging statements about Mustaf Jama when he was facing trial in the context of a case that was itself very serious and had attracted a great deal of publicity in the region and could be expected still to be high in the public consciousness.
45. Mr Caldecott submits that what happened here was, however, that a system which had hitherto functioned smoothly failed on this one occasion in that correct legal advice was not acted on in the regional department. I accept that we are concerned with a single incident of failure of a system designed to prevent problems such as this arising. But I would add that the failure is very difficult to understand and plainly should not have occurred, not least because even without the legal marks the possibility of prejudice to Mustaf Jama's trial should have been immediately obvious even to any sub-editor reading the article. Mr Wiskar was right to accept a share of responsibility for what occurred.
46. As to the damage actually done to the administration of justice, it is fortunate that because of the delay arising out of the abuse of process application, and the fact that the contempt related only to the Yorkshire edition of the newspaper, it was possible to deal with the situation by changing the trial venue, and in the event it has not been established that any delay was caused to the trial itself. As Mr Caldecott points out, it would have been much more serious if a trial in progress had had to be aborted, or if the article had resulted in a permanent stay on criminal proceedings or in postponement of a trial already fixed.
47. Moving on, the apology proffered on behalf of MGM was not immediate, but when it came it was full and unreserved. Further, it has been accompanied with evidence as to steps taken to underline the importance of complying with the processes laid down for avoiding problems of this kind. Whether that will be effective to avoid a repetition we cannot yet know, but it is strongly to be hoped that nothing like this occurs again.
48. It is accepted, as I have said, that MGM must pay the Attorney General's reasonable costs. Subject to any further submissions, it seems to me that it must be ordered to pay those costs on an indemnity basis.
49. As to analogous cases, both counsel have assisted by drawing the court's attention to a summary of previous cases contained in appendix 3 to Aldridge, Eady & Smith on Contempt, Third Edition, at pages 1323 and following, and, in Mr Caldecott's case, by making submissions in relation to some of the cases there set out so as to examine their relative seriousness as compared with the present case.
50. I do not propose to engage in an exercise of minute comparison with other cases. All have their own factual features and one of the difficulties about the schedule is that since it is a very brief summary it does not contain all the relevant details. In general terms, however, it seems to me to be fair to say that, as is to be expected, the highest penalties are associated with contempts of court that result in aborted trials, postponed trials or permanent stays. I would also accept that account must be taken of the extent to which the contempt resulted in the throwing away of costs of the trial process, such costs not being recoverable prior to a change in the law in 2004.
51. One previous case to which it is right to draw particular attention is that of Attorney General v Mirror Group Newspapers Limited (2002) EWHC 907. That was a case in which a fine of £75,000 was imposed on the same defendant in respect of articles in the Sunday Mirror which were published in breach of the strict liability rule. Mr Caldecott has drawn our attention to significant differences in that case. There was a deliberate editorial decision to publish an interview with the victim's father in the course of a trial of two Leeds United footballers charged with assaulting an Asian student. The articles were published at a very sensitive stage of the case when the jury was in retirement, and they raised issues of racial aggravation although the Crown had confirmed in court in the proceedings themselves that any suggestion of racial aggravation was not being pursued. The summary records that it was said that the gravity of the contempt was at the top end of the range of strict liability contempts, but there were mitigating factors, in particular the company's good record and its acceptance of the fact that it had erred. Moreover, a deterrent was not likely to be a significant factor in the case of a responsible newspaper with an excellent record.
52. The fact that such a serious contempt was committed only a few years ago by the same defendant is itself a factor to be borne in mind in the present case. Equally, however, I accept that the differences in that case are significant and that the points in favour of MGM to which the court referred in sentencing in that case should also be taken into account in the present context.
53. In broad terms the present case is a serious contempt, though not as serious as some of those that have occurred in the past. It arises from what appears to have been a single failure of a generally satisfactory vetting system. On the other hand, it is a failure that should not have occurred, especially given the nature of the article which was so obviously prejudicial, or potentially prejudicial, to the prospective trial of Mustaf Jama. Fortunately it did not, in the event, cause great or irreparable damage to the administration of justice. The court has received a full explanation and apology, and an assurance as to steps that have been taken to avoid repetition.
54. In all the circumstances, I take the view that an appropriate penalty would be to order the defendant, MGM, to pay a fine of £25,000. I would therefore so order in addition to the order as to costs which I have already mentioned.
55. MR JUSTICE MADDISON: I agree. In my view a fine of £25,000 meets the justice of this case, in particular, because it reflects the potentially highly prejudicial nature of the newspaper article concerned, but recognises that the consequences of the publication of the article were happily limited to the need to transfer the trial of Mustaf Jama from Leeds to the Newcastle Crown Court. I also agree with the observations of my Lord, Richards LJ, in relation to the costs of these proceedings.
56. LORD JUSTICE RICHARDS: Mr Havers, I have dealt with costs in the judgment given. I have said that it is of course subject to any submissions as regards an indemnity basis. Indemnity basis will normally follow in a contempt case.
57. MR HAVERS QC: I am not sure that is necessarily true. Your Lordships have a complete discretion as to what order to make as to costs. In my experience there is not any invariable practice. It may be your Lordship has invariable practice but in my experience--
58. LORD JUSTICE RICHARDS: I have certainly ordered indemnity costs in contempt cases in the past, not necessarily as an invariable practice.
59. MR HAVERS QC: My Lord, as I say, it is entirely a matter for this court to decide. You have a complete and unfettered discretion. I have no submissions to make.
60. LORD JUSTICE RICHARDS: Mr Caldecott?
61. MR CALDECOTT QC: The last thing I want to do is to make a submission which sounds -- let me say this--
62. LORD JUSTICE RICHARDS: Let me make clear it was said subject to your right to make submissions.
63. MR CALDECOTT QC: I will be very brief. Certainly in recent cases where there have been pleas of guilty the Attorney General has not sought costs on an indemnity basis. I think the reason being this: as a matter of convention or principle indemnity costs, as your Lordship knows, arise where the conduct of the proceedings, by which I mean the actual contempt proceedings, gives rise to special criticism. The general phrase is that it must be something that is sufficiently unreasonable to take it out of the norm. Of course, it can be said the other way around, that if you are looking at contempt of court in the bigger picture it is itself a quasi criminal cause of action which does arise from abuse of other proceedings.
64. My only problem, I think, with indemnity costs being a standard practice in this field, is that it does remove it as a sanction in cases where the contempt proceedings themselves are conducted unreasonably. That is not as rare as one might think. I emphasise I do not think it will make any difference to the figure at the end of the day. Costs are generally agreed. I am just a little worried about the stigma which might attract to my clients about the way in which they have conducted the proceedings, as opposed to the very proper criticism you Lordships have made of the contempt of court.
65. LORD JUSTICE RICHARDS: Of course, they were denying liability when the proceedings were commenced.
66. MR CALDECOTT QC: That is a point that can be said against them, but of course it rather curiously preceded the reasoning. It was a very short letter they had from the Attorney General. They did change their plea. That is a point that could be taken against me.
67. MR HAVERS QC: My Lord, that is very fair. Thank you.
68. LORD JUSTICE RICHARDS: We will order costs on an indemnity basis making it clear that it is not intended to set a rule for the future. It is something taken into account in deciding on the fine that has been imposed. It is intended, in part, to reflect the original denial, prior to the proceedings being brought, whilst we do accept that there has not been any unreasonable conduct on the part of MGM in the proceedings themselves, and it is not therefore intended to suggest that any additional stigma should attach to MGM. In practice it is unlikely to make a significant difference to the costs. To the extent that it does, we think that it is right that they should be on an indemnity basis.