Defamation – Libel – Cost-capping orders – Conditional Fee Agreements – After-the-event insurance policies – CPR Rule 3.1 – CPR Part 26 Practice Direction
The Claimant sues upon allegations published in The Sun that she was the granny prostitute known as the Auld Slapper who slept with Wayne Rooney in return for money. The defence was justification. The Defendant applied for a cost capping order.
Whether a costs cap should be imposed.
Granting the application. The power to grant a costs cap was discretionary and should not be placed in a straightjacket. Following Musa King and Henry, the Court was “likely to be ready to intervene” in cases like the present. The level of the costs cap would be determined by a costs judge. It was not necessary for a High Court judge to participate in that assessment.
This is the first costs cap imposed by a High Court Judge and the first to be supported by a reasoned judgment. Interestingly, McCombe J. very much interpreted the obiter judgment of Brooke LJ in Musa King as establishing that where a defamation claimant is impecunious, is funded by a CFA and does not have ATE insurance, there will almost be a presumption that a costs cap be imposed. Although the Judge did not accept the suggestion that the costs cap should be fixed by a costs judge sitting with a High Court judge, there is much to be said for such a proposal. Costs judges are unlikely to be familiar with the sort of work that particular issues in defamation cases will require. If active case management means anything under the CPR, then it has to be carried out by Judges with experience of the subject matter. Given their increasing importance, the same must be said about costs caps.