Court: Queen's Bench Division
Judge: Master Eyre
Date of judgment: 17 Mar 2005
Summary: Defamation - Libel - Costs capping - Conditional Fee Agreements
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Appearances: Adrienne Page KC - Leading Counsel (Defendant) Adam Speker KC (Defendant)
Instructing Solicitors: Charles Russell for Claimant; Taylor Wessing for Defendant
The Claimant brought a libel action against the Defendant for articles published in the Evening Standard in 2002 about the standards of care in a nursing home of which she was the proprietor. The Defendant pleaded justification and fair comment. The Claimant was represented on a CFA and unable to obtain ATE. At the allocation stage, the Claimant estimated her costs to trial at more than £558,000 before additional liability. The Defendant applied to the Master at the CMC for an Order that the case be referred to a costs judge to set a limit to the costs recoverable by the Claimant, including additional liability, if she succeeded (a ‘costs-capping order’).
(1) Whether the application was one that should be made to a Judge not a Master; (2) whether the Defendant had the onus of proving that the Claimant would be unable to meet an Order for costs if the Defendant succeeded; (3) whether it was necessary for the Defendant to prove extravagance in the Claimant’s conduct of the action; (4) whether the need for vindication precluded the Court adopting a generous view towards the incurring of costs by a Claimant; (5) whether the jurisdiction should be reserved only to exceptional cases.
Granting the application, referring the case to the Senior Costs judge for the cap to be determined and deferring directions to trial in the meantime: (1) There is no good reason not to bring the application before the Master; (2) the fact of a CFA creates a provisional inference of impecuniosity; (3) extravagance in any subjective sense is not a necessary condition of making such an Order; (4) the need for vindication may well induce a more liberal approach to any assessment of the Claimant’s costs, but not an approach so liberal as to ratify costs on such a ‘giant’ scale; (6) this was precisely the kind of case in which a costs-capping Order is appropriate.
There was some doubt after target=_parent>Armstrong v Times Newspapers  EWHC 2928 (QB) as to when such an Order would in practice be made available in a defamation case, pending the publication of new rules and practice directions. Since then, discussions between the jury judges and Master Eyre have resolved that such applications will be dealt with by the Master. A standard form direction is now incorporated into the pro forma Minute of Order issued by the Court at the allocation stage. This will relieve some of the concerns of media defendants when faced with CFA-funded Claimants without ATE.