In his libel action the plaintiff was awarded andpound;50,000 damages. The same sum had been paid into court, but he obtained additionally an injunction against further publication of the libel and on that account was awarded his costs by the judge below. The court was asked what costs order should be made after acceptance of a payment into court.
Held: The judge must look closely at the facts of the particular case before him and ask: who, as a matter of substance and reality, has won? Has the plaintiff won anything of value which he could not have won without fighting the action through to a finish? Has the defendant substantially denied the plaintiff the prize which the plaintiff fought the action to win? The real question which the judge should have asked was: Why did the plaintiff go on to trial and not accept the money in court: Or, was it a significant factor in the plaintiff’s decision not to accept the payment in but instead to proceed to trial that he was concerned to obtain an injunction which he reasonably believed he could not otherwise have got? The power to make a payment into court is a most useful weapon in the hands of a defendant faced with a greedy plaintiff making unreasonable demands for damages, but it will be completely blunted if, having failed to beat the payment into court, the plaintiff can say, ‘Oh well, I’m entitled to an injunction, the defendant didn’t offer me that and I have had to come to court to get it so I’m entitled to my costs.’ Where there is a substantial payment into court which the plaintiff fails to beat, it cannot be right that, because the defendant omits to make a ritualistic offer of an undertaking not to repeat the libel, he has to pay all the costs after payment in.
Judges:
Sir Thomas Bingham MR, Stuart-Smith LJ
Citations:
Independent 31-Dec-1992
Jurisdiction:
England and Wales
Cited by:
Cited – Sugar v Venables and Michael Joseph Limited (2) CA 17-Oct-1997
The appellant challenged an order for costs against him. He had begun defamation proceedings which were settled upon the terms of an offer without prejudice as to costs. The plaintiff was ordered to pay the defendant’s substantial costs incurred . .
Cited – Butcher v Wolfe and Another CA 30-Oct-1998
The parties had been partners in a family farm. On dissolution there was a dispute as to apportionment of costs. An offer had been ‘without prejudice save as to costs’.
Held: Costs may be denied to a plaintiff who had received a Calderbank . .
Lists of cited by and citing cases may be incomplete.
Defamation, Costs
Updated: 31 July 2022; Ref: scu.180506