Full case report
King v Sunday Newspapers Ltd
Reference  No NICA Ref GIR 8547
Court Northern Ireland Court of Appeal
Judge Higgins, Girvan and Coghlin LJJ
Date of Judgment 29 Jun 2012
King- Sunday Newspapers- Northern Ireland- personal injury- harassment- misuse of private information- Article 2 ECHR- Article 3 ECHR- Article 8 ECHR- costs order appeal- basis of costs order- injunction- damages
C had brought proceedings against D following publication of a number of articles in 2002 which had accused A of involvement in serious criminal activity, murder and drug dealing.
A sought an injunction and damages contending that the content of the articles, which included details of his partner, and a photograph of them together at a wedding, had created a real risk to his life and security, infringed his right to privacy and damaged both his and his family’s family life and relations (breaches of Arts 2, 3 and 8 ECHR). He claimed for both misuse of private information and harassment.
An interim injunction was granted in 2009 restraining publication of certain particulars, which was followed by a full trial of the issues.
Ultimately the privacy claim was successful in part, but the harassment claim failed. On appeal, the CA upheld the judge’s decision, albeit on different reasoning. It also allowed A’s appeal in relation to the identification of his partner in the articles and the publication of a photograph of them together.
The CA awarded A 70% of the costs of the appeal and, following that decision, in a later quantum hearing on damages, the judge awarded A £1,000.
After hearing submissions on costs the judge, in a costs ruling on 2 Dec 2011, concluded that there was no ‘special case’ to warrant a departure from the normal rules under s. 59(2) of the Judicature (Northern Ireland) Act 1978 (the “Act”). S. 59 stipulated that, if the relief or damages sought could have been obtained in the County Court, unless there is some special cause, costs should be limited to those that could be awarded there.
Whilst A did not seek to appeal the £1,000 damages award, he did seek to challenge the basis on which costs were ordered under s. 59 of the Act, contending:
1) That the decision did not appropriately reflect the complexity of the case; and
2) That it failed to take account of the fact that the case established two points of general interest, namely: (i) that a claim can be brought in relation to interference with the privacy rights of members of a person’s family who are not before the court, and (ii) the case identified the importance to be given to the interests of the child.
The issue was therefore whether or not a ‘special cause’ had actually been established under s59(2) of the Act, such that the costs ought to have been awarded at a High Court level, as opposed to at the County Court level.
Appeal allowed. The lengthy and protracted nature of the proceedings would justify their being conducted at the High Court level and there was little doubt that, had a remittal of the proceedings to the High Court been applied for, it would have been granted. Given the complexity and novelty of the proceedings there was ‘special cause’ to award costs on the High Court scale, and to depart from the normal rule under s59.
This appeal represents the first occasion on which the NI courts grappled with a full privacy trial and, consequently, also the first time the CA was afforded the opportunity to review a costs order made in that context.
What seems clear from the CA’s ruling is that it will be the specifics of each individual case that will determine the basis on which costs will be awarded. Notably, the Court rejected A’s Counsel’s attempts to suggest that costs should be awarded on a High Court level in privacy proceedings on the basis that similar English cases are routinely conducted in the High Court, notwithstanding the modest award of damages. At  the Court explained that it seemed “unlikely that in absolutely straightforward cases of misuse of private information where the damages are likely to be very modest that such cases would have to be commenced at the High Court level. Accordingly we do not consider that the English case law is in any way determinative of the issue.”
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