Noorani v Calver (No 2 Costs)
Reference:  EWHC 592 (QB)
Court: Queen's Bench Division, Liverpool District Registry
Judge: Coulson J
Date of judgment: 25 Mar 2009
Summary: Defamation - Libel - Discontinuance - Indemnity costs - Payment on account - Conditional fee agreements
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Jacob Dean (Defendant)
Richard Munden (Defendant)
Instructing Solicitors: E Rex Makin & Co. for the Defendant; Kirwans for the Claimant
C sued D over a letter published in June 2007 to fellow members of the Executive Council of the West Wirral Conservative Association. D admitted publication of the letter and defended the libel claim on the basis of qualified privilege and justification. C discontinued on the third day of trial before a Judge and jury, shortly after the conclusion of his cross-examination.
Should the Claimant pay the Defendant’s costs of the action on the indemnity basis?
An indemnity costs order was appropriate, for two reasons. First, the Defendant had made offers which the Claimant had failed to beat and the Claimant’s pre-trial conduct was both “unreasonable to a high degree” and “out of the norm”. Second, the underlying claim was fundamentally flawed and the jury was highly likely to find that the allegations complained of were true. C was ordered to pay £50,000 on account within 14 days.
A factor in the award of indemnity costs was the Judge’s disapproval of the way in which the Claimant’s CFA with his lawyers had inured him “to the chilly winds of reality”. In a phrase which may echo through the ongoing debate about CFAs in defamation Coulson J said: “In my judgment, the conduct of libel proceedings on credit is a thoroughly bad idea”.