Phillipps v Associated Newspapers Ltd & Another
Reference:  EWHC 190 (QB);  1 WLR 2106;  2 All ER 455;  EMLR 218
Court: Queen's Bench Division
Judge: Eady J
Date of judgment: 10 Feb 2004
Summary: Defamation - Acceptance of Defendants' Part 36 Offer to Settle - Entitlement to Unilateral Statement in Open Court - Part 53 PD 6.1 - Costs
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David Sherborne (Defendant)
Instructing Solicitors: Davenport Lyons for the Claimant; Reynolds Porter Chamberlain for the Defendants
The Claimant brought libel proceedings complaining about an article published in the Daily Mail that suggested that she had manipulated a very ill, confused and dying man (George Carman QC) into making or altering his will on his deathbed so as to make her the largest beneficiary of his estate. The Defendants made a Part 36 Payment into Court, which the Claimant accepted. The Defendants refused to join with the Claimant in a joint Statement in Open Court. The Claimant applied to the Court for permission to read a unilateral Statement in Open Court. The Defendants opposed the application on the grounds that the amount of the Part 36 Payment into Court was insufficient to justifiy the Claimant being allowed to make a unilateral statement. On the issue of costs, the Defendants contended that the acceptance of the Part 36 payment into court meant that the Claimant had to bear her costs of the application for a unilateral statement in open court.
(1) Whether the Claimant should be granted permission to make a unilateral statement in open court pursuant to CPR 53 PD 6.2;
(2) Whether the fact that the Claimant had made the application after accepting the Part 36 Payment into Court meant that she was not entitled to the costs of the application from the Defendants;
(3) Whether, following an acceptance of a Part 36 Payment into Court, a Claimant was entitled to recover the reasonable costs of applying for and making a unilateral statement in Open Court pursuant to CPR 53 PD 6.2.
(1) Permission was granted to the Claimant to make a unilateral statement in Open Court. The remaining objections of the Defendants to the wording were rejected by the Judge. The sum in damages accepted by the Claimant was well above any level which could be characterised as nominal; Church of Scientology v Borth News (1973) 117 Sol Jo 566 and Barnet v Crozier  1 WLR 272 considered.
(2) The Claimant was entitled to her costs of the application. The Court had a discretion as to Costs notwithstanding the wording of CPR 36.13, as CPR 53 PD 6.2 envisaged the possibility of a further application being made even after acceptance of a Part 36 Payment into Court. Any such application was required to be made under CPR Part 23 and the Court would have a discretion over the costs of any such application in the usual way. (3) The incidental costs of applying for and making a statement in open court after acceptance of a Part 36 Payment into Court were costs of the action.
This case reaffirmed the principle that a Claimant who has recovered more than nominal or derisory damages will be entitled to a reasonable statement in open court as part of his/her vindication. A Defendant who objects unreasonably to the Claimant’s application for permission for a unilateral statement in open court is at risk of an adverse ruling on costs.