Tierney v News Group Newspapers Ltd (No.2) (Costs)

Reference: [2006] EWHC 3275 (QB)

Court: Queen's Bench Division

Judge: Eady J with Senior Costs Judge Hurst

Date of judgment: 20 Dec 2006

Summary: Defamation - Libel - Appeal - Costs capping orders - Conditional Fee Agreements - Level of costs cap - Expenditure within a costs cap - Recoverability of a QC's fees

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Appearances: Adrienne Page KC - Leading Counsel (Claimant) 

Instructing Solicitors: Kirwans for the Claimant; Farrer & Co for the Defendant


The Claimant sues upon allegations published in The Sun that she was the granny prostitute known as the “Auld Slapper” who slept with Wayne Rooney in return for money. The defence was justification. McCombe J ordered that a costs cap be imposed upon the costs recoverable by the Claimant. Costs Judge Campbell set the costs cap. The Claimant appealed on the basis that he set the level too low.


Whether to increase the costs cap imposed by Costs Judge Campbell in order to permit extra solicitor expenditure and the instruction of a QC. Whether the costs cap ought to include an amount for the making and resisting of interim applications.


The level of the cap ought to be increased to permit the Claimant to incur an extra £20,000 in solicitors’ costs. However, given that the Defendant had agreed not to instruct a QC at trial, the Claimant would not be able to recover the costs of instructing a QC. Costs cap ought not generally to include an amount for the costs of bringing and resisting interim applications.


Cost capping is still in its infancy. In this case, the Defendant indicated to the Court that it would not be instructing a QC. Had the situation been different, there would have been a potential clash between the principle of equality of arms and the observations of Brooke LJ in Musa King (that litigants on CFAs would have to face the same realities in choice of counsel that many legally aided litigants had to face).