Miller v Associated Newspapers Ltd (No.4)

Reference: [2005] EWHC 773 (QB)

Court: Queen's Bench Division

Judge: Eady J

Date of judgment: 22 Apr 2005

Summary: Defamation - Libel - Claim dismissed following trial of the action - Defence of justification upheld - Whether costs should follow the event - Whether costs should be assessed on standard or indemnity basis - Whether interest should be awarded - Whether Claimant should have permission to appeal

Appearances: Adam Speker (Defendant) 

Instructing Solicitors: WHCG for the Claimant; Reynolds Porter Chamberlain for the Defendant

Facts

The Claimant, a former Detective Chief Inspector, now Superintendent, sued the Defendant in respect of articles published in the Daily Mail and Evening Standard on 11 September 2001. At trial the Defendant was successful and its defence of justification was upheld and the claim dismissed. Following judgment, at an adjourned hearing, the Defendant applied for its costs to be assessed on the indemnity basis and for interest before judgment on costs which had passed from client to solicitor. The Claimant applied for permission to appeal.

Issue

(1) Whether costs should follow the event or be assessed in relation to issues
(2) If so on what basis the costs should be assessed
(3) Whether interest should be awarded on costs prior to judgment
(4) Whether the Claimant should have permission to appeal

Held

(1) There was no reason to take an “issues based” approach to costs. It could not be said that one party had dragged in unreasonable matters which justified departing from the conventional approach that the successful party should have its costs. Costs should follow the event.
(2) The Defendant was entitled to have its costs assessed on the indemnity basis from 6 January 2004 being 21 days after it made a part 36 payment of £10,000. The Claimant’s conduct in pressing on beyond that date was unreasonable bearing in mind what a part 36 payment entails in a libel case and he had not suffered in employment terms: Reid Minty v Taylor [2002] EMLR 347 and Excelsior v Salisbury [2002] EWCA Civ 879 applied.
(3) The Defendant was entitled to have interest at 1% above base costs on those costs placed into the solicitors hands. It took an incredible risk and faced enormous expense.
(4) Permission to appeal refused. There was no reasonable prospect of establishing that the judgment was perverse.

Comment

This judgment on costs should set alarm bells ringing in the ears of claimants who ignore proper offers to settle. Where the Defendant is faced with what the Court described as “enormous risks on costs” which would have amounted to over £4million if they lost (due to the claimant being funded on a conditional fee with success fee and insurance premium) it was unreasonable for a Claimant to reject proper offers to settle and to press onto trial where he could have have all he hoped for by way of vindication over a year earlier.

The judgment is also interesting for the award of interest under CPR 44.3(6)(g) at 1% over base rate allowed on the money paid by ANL to their solicitors before judgment.