Full case report
White v Express Newspapers (Costs)
Reference  EWHC 814 (QB)
Court High Court, Queen's Bench Division
Judge Tugendhat J
Date of Judgment 25 Mar 2014
libel – costs – meaning – costs of ruling on meaning
The parties disputed the appropriate costs order following a ruling on meaning in a defamation action on which is reported on the 5RB website here. The judgment concerns two separate libel actions in respect of the same article, one brought by the well-known snooker player Jimmy White, and the other brought by his friend and fan Mr Callaghan.
The Defendant in both actions had applied for a determination pursuant to CPR 53 PD para 4.1 that the words complained of were not capable of bearing the meaning pleaded by the Claimants – a meaning pleaded at Chase level 1, attributing actual guilt. The Court of its own motion invited the parties to agree that the issue of actual meaning be decided as a preliminary issue. Consent was given by both parties to that course of action. Tugendhat J determined the meaning in relation to both Claimants to be one of reasonable grounds to suspect them of the wrongdoing in question.
The Defendant sought two-thirds of its costs, or alternatively no order as to costs. The Claimants sought costs in the case. The day before the hearing the Defendant made an open offer to agree that there be no order for costs. The Claimants did not agree to this.
(1) What order should be made as to the costs of a preliminary issue ruling on meaning where a party had pleaded an exaggerated meaning?
(2) What order should be made as to the costs of the hearing at which the costs of the application were argued?
(1) No order for costs in respect of the costs of the determination on meaning:
Although the Defendant had applied for a determination on capability of the Chase level 1 meaning, the Judge did not have to, and did not, make a ruling that the words complained of were not capable of bearing the meaning attributed to them by the Claimants. What was in fact determined was the actual meaning of the words; a court of action agreed by the parties on the suggestion of the Tugendhat J. Thus, the issue of costs was to be approached as if the hearing had been a trial of meaning as a preliminary issue from the start.
There were benefits to both parties to meaning being determined as a preliminary issue.
Tugendhat J accepted the Defendant’s submission that there was a public interest in discouraging parties from exaggerating their claims, particularly in libel claims where to do so is an interference with defendants’ rights to freedom of expression (as per John v Guardian  EWHC 3066 (QB)). Such discouragement may take the form of a costs order. It would unjust if a defendant who was unsuccessful in a libel claim had to pay the costs of a preliminary issue in which it had successfully obtained a ruling that the claimant has exaggerated his or her claim by overstating the seriousness of the attributed meaning.
An order for costs in the case might also be appropriate in some cases, but to do so in this case would not reflect the fact that the Claimants exaggerated their claims.
Thus no order for costs was the right order in respect of both.
(2) From the handing down of the meaning judgment to the open offer, no order for costs. From the open offer, the Claimants to pay the Defendant’s costs:
As the court had determined that the appropriate order was no order for costs, the Claimants were to pay the Defendant’s costs from the date at which the Defendant made an open offer of no order for costs.
This case is of particular interest for the principles that (i) Claimants should be deterred from pleading exaggerated meanings by appropriate costs orders and (ii) the Court should not make costs orders that discourage parties from co-operating.
However, the Court’s approach may be of potential concern to parties who have issued an application to strike out a particular pleaded meaning (as not being one that the words complained of are capable of bearing), who are then invited by the Court to agree instead to a determination of actual meaning. The meaning that the court found was not that which the Claimants had pleaded, the Judge found that the Claimants had exaggerated their claims, and indeed stated that:
“In my judgment the words complained of clearly fell short of alleging actual dishonesty or other wrongdoing.”
On that basis, the Defendant would be regarded as having “won” in achieving that which it had sought – the removal of the Chase level 1 meaning from the case. It is clearly correct that there are benefits to both parties to an early determination of the actual meaning of the words complained of in a libel case. However, parties may think twice about agreeing to convert a hearing on the capability of a meaning to one to determine actual meaning as it does not follow that all the costs will brought to bear on the party who pleaded a higher or lower meaning than that found by the court.
Carruthers Law for C, Express Newspapers for D
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