The defendant appealed against interim costs orders made in the claim against it for defamation.
Held: The general power of cost capping measures available to courts were available also in defamation proceedings. The claimant was being represented under a conditional fee agreement. The court considered that the amount of costs being incurred served to act as an improper deterrent to defendant publishers, and they should not be held in terrorem by inflated costs agreements. If less claimants pursued cases because lawyers were reluctant to take cases unless they were assessed to have a much greater than evens chance of success, then that was a price to be paid. Brooke LJ said: ‘A claimant brings an action like this not only to recover damages but also to vindicate his reputation, but that consideration cannot go too far to bridge the gulf between the value of this action to the Claimant and its value to the lawyers instructed in the case. As I have said, something seems to have gone seriously wrong’.
Brooke J also said: ‘What is in issue in this case, however, is the appropriateness of arrangements whereby a defendant publisher will be required to pay up to twice the reasonable and proportionate costs of the claimant if he loses or concedes liability, and will almost certainly have to bear his own costs (estimated in this case to be about pounds 400,000) if he wins. The obvious unfairness of such a system is bound to have the chilling effect on a newspaper exercising its right to freedom of expression . . and to lead to the danger of self-imposed restraints on publication which he so much feared . . It is not for this court to thwart the wish of Parliament that litigants should be able to bring actions to vindicate their reputations under a CFA, and that they should not be obliged to obtain ATE cover before they do so . . On the other hand, we are obliged to read and give effect to relevant primary and secondary legislation so far as possible in a way that is compatible with a publisher’s Article 10 Convention rights . . In my judgment the only way to square the circle is to say that when making any costs capping order the court should prescribe a total amount of recoverable costs which will be inclusive, so far as a CFA-funded party is concerned, of any additional liability. It cannot be just to submit defendants in these cases, where their right to freedom of expression is at stake, to a costs regime where the costs they will have to pay if they lose are neither reasonable nor proportionate and they have no reasonable prospect of recovering their reasonable and proportionate costs if they win.
If this means . . that it will not be open to a CFA-assisted claimant to receive the benefit of an advocate instructed at anything more than a modest fee or to receive the help of a litigation partner in a very expensive firm who is not willing to curtail his fees, then his/her fate will be no different from that of a conventional legally aided litigant in modern times. It is rare these days for such a litigant to be able to secure the services of leading counsel unless the size of the likely award of compensation justifies such an outlay, and defamation litigation does not open the door to awards on that scale today. Similarly, if the introduction of this novel cost-capping regime means that a claimant’s lawyers may be reluctant to accept instructions on a CFA basis unless they assess the chances of success as significantly greater than evens (so that the size of the success fee will be to that extent reduced), this in my judgment will be a small price to pay in contrast to the price that is potentially to be paid if the present state of affairs is allowed to continue.’
The court re-iterated the ‘conduct rule’ in defamation cases: ‘(1) There is a rule of general application in defamation (dubbed the ‘repetition rule’ by Hirst LJ in Shah) whereby a defendant who has repeated an allegation of a defamatory nature about the claimant can only succeed in justifying it by proving the truth of the underlying allegation – not merely the fact that the allegation has been made;
(2) More specifically, where the nature of the plea is one of ‘reasonable grounds to suspect’, it is necessary to plead (and ultimately prove) the primary facts and matters giving rise to reasonable grounds of suspicion objectively judged;
(3) It is impermissible to plead as a primary fact the proposition that some person or persons (e.g. law enforcement authorities) announced, suspected or believed the claimant to be guilty;
(4) A defendant may (for example, in reliance upon the Civil Evidence Act 1995) adduce hearsay evidence to establish a primary fact – but this in no way undermines the rule that the statements (still less beliefs) of any individual cannot themselves serve as primary facts;
(5) Generally, it is necessary to plead allegations of fact tending to show that it was some conduct on the claimant’s part that gave rise to the grounds of suspicion (the so-called ‘conduct rule’).
(6) It was held by this court in Chase . . that this is not an absolute rule, and that for example ‘strong circumstantial evidence’ can itself contribute to reasonable grounds for suspicion.
(7) It is not permitted to rely upon post-publication events in order to establish the existence of reasonable grounds, since (by way of analogy with fair comment) the issue has to be judged as at the time of publication.
(8) A defendant may not confine the issue of reasonable grounds to particular facts of his own choosing, since the issue has to be determined against the overall factual position as it stood at the material time (including any true explanation the claimant may have given for the apparently suspicious circumstances pleaded by the defendant).
(9) Unlike the rule applying in fair comment cases, the defendant may rely upon facts subsisting at the time of publication even if he was unaware of them at that time.
(10) A defendant may not plead particulars in such a way as to have the effect of transferring the burden to the claimant of having to disprove them.’
Judges:
Lord Justice Brooke, Lord Justice Kay Lord Justice Johnathan Parker
Citations:
Times 21-May-2004, [2004] EWCA Civ 613, [2004] EMLR 429, [2005] 1 WLR 2282, [2004] 3 Costs LR 449, [2004] CP Rep 35, [2004] EMLR 23
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Chase v News Group Newspapers Ltd QBD 29-May-2002
A libel defence of justification which was based on ‘reasonable grounds for suspicion’ must focus on conduct of claimant that gives rise to suspicion. It was not permissible to rely upon hearsay. Defendant may not plead as ‘grounds’ material which . .
Mentioned – Lewis v Daily Telegraph Ltd HL 1964
Ascertaining Meaning of Words for Defamation
The Daily Telegraph had published an article headed ‘Inquiry on Firm by City Police’ and the Daily Mail had published an article headed ‘Fraud Squad Probe Firm’. The plaintiffs claimed that those articles carried the meaning that they were guilty of . .
Mentioned – Evans v Granada Television CA 1996
In a defamation action, it is open to the defendant to justify the imputation by establishing that there were reasonable grounds to suspect the plaintiff from an objective point of view.
Stuart-Smith LJ said: ‘But the jury are concerned with . .
Cited – Shah and Another v Standard Chartered Bank CA 2-Apr-1998
The plaintiffs appealed against refusal of orders striking out the defences of justification to their libel action.
Held: The words complained of bore an accusation of money laundering. A plea of justification based upon a reasonable belief in . .
Cited – Stern v Piper and Others CA 21-May-1996
The defendant newspaper said that allegations had been made against the plaintiff that he was not paying his debts. In their defence they pleaded justification and the fact that he was being sued for debt.
Held: A defamation was not to be . .
Cited – Bennett v News Group Newspapers 2002
The defendant newspaper ran a story about investigations into several police officers at Stoke Newington police station, who had ultimately been cleared. The newspaper had pleaded a Lucas-Box meaning (2) that there were sufficient grounds for . .
Cited – Pedder v News Group Newspapers Ltd QBD 2002
The court expressed concern at the costs being incurred in defamation cases after the introduction of conditional fee agreements. Additional elements in an abuse of process case may include the ability of the claimant to pursue a claim at no risk in . .
Cited – Olakunle O Olatawura v Alexander O Abiloye CA 17-Jul-2002
The claimant challenged an order requiring him to give security for costs before proceeding. The judge had felt he was unreasonable in the way he was pursuing his claim. He appealed saying the order was made outside the scope of Part 25.
Held: . .
Cited – Lillie and Reed v Newcastle City Council, Barker, Jones, Saradjian, Wardell QBD 30-Jul-2002
The applicants sought judicial review of a report prepared for the respondent. They had been accused of child abuse whilst working as nursery assistants.
Held: The report was fundamentally flawed, and almost deliberately designed to . .
Cited – Roache v Newsgroup Newspapers Ltd 1998
In looking at questions of costs in libel actions it is often appropriate to consider, as a matter of substance and reality, who was the true winner in the proceedings. . .
Cited – Mcvicar v The United Kingdom ECHR 7-May-2002
It was not inconsistent with article 6 to expect both claimants and defendants in defamation proceedings to act in person. . .
Cited – McPhilemy v Times Newspapers Ltd and Others (2) CA 26-May-1999
The new Civil Procedure Rules did not change the circumstances where the Court of Appeal would interfere with a first instance decision, but would apply the new rules on that decision. Very extensive pleadings in defamation cases should now be . .
Cited – Alex Lawrie Factors Limited v Morgan and Others CA 5-Jul-1999
A statement of truth or affidavit must reflect the words and thoughts of the witness who signed it. It is not appropriate to include matters about which the witness could not themselves give evidence, including particularly complex arguments sought . .
Cited – A B and others v Leeds Teaching Hospitals NHS Trust QBD 9-May-2003
The claimants were involved in a group litigation with regard to the removal of organs without consent from deceased children. The defendant sought an order capping the costs which might be claimed.
Held: In GLO cases the desirability of . .
Cited – Aquarius Financial Enterprises v Certain Underwriters at Lloyd’s 2001
. .
Cited – Solutia UK Limited v Griffiths CA 26-Apr-2001
The court considered issues relating to the appropriateness of the claimants instructing London solicitors in a case in which those solicitors had submitted a bill of costs totalling pounds 220,000 in connection with a claim in which their clients . .
See Also – Musa King v Telegraph Group Ltd SCCO 18-May-2004
. .
Appeal from – Musa King v Telegraph Group Limited QBD 9-Jun-2003
. .
Cited by:
Cited – Brunt and others v Southampton International Airport Ltd CA 7-Feb-2005
The claimants lived near Southampton Airport. The airport was altered to allow larger aircraft to use it, and they claimed damages for the increased noise and disturbance. Land had been acquired for additional parking. The number of aircraft flying . .
Cited – Corner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .
See Also – Musa King v Telegraph Group Ltd SCCO 18-May-2004
. .
Cited – Al-Koronky and Another v Time Life Entertainment Group Ltd and Another QBD 29-Jul-2005
The defendant to the defamation claim sought security for costs. There had been allegations of dishonesty on either side.
Held: The court should not, upon such an application, enter into the merits of the case in any detail, save in the . .
Cited – Campbell v MGN Ltd (No 2) HL 20-Oct-2005
The appellant sought to challenge the level of costs sought by the claimant after she had succeeded in her appeal to the House. Though a relatively small sum had been awarded, the costs and success fee were very substantial. The newspaper claimed . .
Cited – Three Rivers District Council and others v The Governor and Company of the Bank of England ComC 12-Apr-2006
The claimants had pursued compensation over many years from the defendants alleging various kinds of misfeasance in regulating the bank BCCI. The action had collapsed.
Held: ‘this was extraordinary litigation which came to an abrupt albeit . .
Cited – Buglife – The Invertebrate Conservation Trust, Regina (on the Application of) v Thurrock Thames Gateway Development Corp CA 4-Nov-2008
The court considered an application for a protective costs order in judicial review proceedings in environmental law cases.
Held: The central decision was Corner House Research, but that was to be applied purposively and not rigidly. It was . .
Cited – Prince Radu of Hohenzollern v Houston and Another (No 4) QBD 4-Mar-2009
Orders were sought to strike out part of the defendants defence of justification to an allegation of defamation.
Held: Where there remains the possibility of a jury trial, it becomes especially important to identify the issues the jurors are . .
Cited – MGN Limited v United Kingdom ECHR 18-Jan-2011
The applicant publisher said that the finding against it of breach of confidence and the system of success fees infringed it Article 10 rights to freedom of speech. It had published an article about a model’s attendance at Narcotics anonymous . .
Cited – Hunt v Evening Standard Ltd QBD 18-Feb-2011
The defamation claimant sought that certain paragraphs of the defence should be struck out.
Held: Several paragraphs of the defence were struck out, and others left. . .
Cited – Caplin v Associated Newspapers Ltd QBD 20-Jun-2011
The defendant sought clarification through the court as to the meanings inherent in the words complained of.
Held: The application failed. ‘I do not consider the ordinary reasonable reader would be perverse to conclude that the suspicions . .
Cited – Coventry and Others v Lawrence and Another SC 22-Jul-2015
The appellants challenged the compatibility with the European Convention on Human Rights of the system for recovery of costs in civil litigation in England and Wales following the passing of the Access to Justice Act 1999. The parties had been . .
Cited – Turley v Unite The Union and Another QBD 19-Dec-2019
Defamation of Labour MP by Unite and Blogger
The claimant now a former MP had alleged that a posting on a website supported by the first defendant was false and defamatory. The posting suggested that the claimant had acted dishonestly in applying online for a category of membership of the . .
Lists of cited by and citing cases may be incomplete.
Defamation, Costs
Updated: 27 November 2022; Ref: scu.196967