Reference:  EWHC 122 (QB)
Court: Queen's Bench Division
Judge: Eady J
Date of judgment: 29 Jan 2009
Summary: Defamation - Libel - Contract - Malice - Costs - Discontinuance by Claimant - Whether Claimant could accept an 'offer' made by Defendant in without prejudice save as to costs correspondence - Indemnity costs - Payment on account of costs
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Adam Speker QC (Defendant)
Instructing Solicitors: Daltons for the Claimant; Russell Cooke LLP for the Defendants
The Claimant, a will writer, sued the Defendants, a solicitor and firm of solicitors, for libel in respect of a letter written by the First Defendant on 12 January 2006 to another firm of solicitors accusing the Claimant of negligence in a different case and stating that this negligence had been admitted by him or on his behalf. Qualified privilege was upheld in September 2007. The trial was due to take place on 12 January 2009. However, in December 2008 the Claimant indicated that he did not want to proceed. He applied to be allowed to accept in December 2008 an ‘offer’ he said had been made by the Defendants in August 2008 and was still open for acceptance. He stated that, if unsuccesful, he would discontinue his claim. The Defendants opposed the application and applied for indemnity costs and a payment on account of costs.
(1) Whether the Claimant was able to accept in December an ‘offer’ made by the Defendants in August 2008;
(2) If not, whether the Defendants were entitled to the costs of the action on the indemnity basis; and
(3) Whether the Defendants were entitled to a payment on account of costs.
(1) The Claimant’s submission that the Defendants’ letter of August 2008 was an offer which would continue indefinitely into the future was untenable. It was not open for acceptance in December. Further, the parties were not ad idem. The acceptance in December did not match the ‘offer’. The application failed.
(2) The Defendants were entitled to the costs of the action on the indemnity basis throughout. The Claimant’s behaviour in starting the claim and persisting with it was unreasonable.
(3) The Defendants were entitled to a payment on account of costs in the sum of £45,000.
This case is a lesson to potential litigants about the dangers of starting actions for libel and then persisting with claims beyond when it is sensible to do so.
Eady J said at  that ‘unreasonable reliance on a plea of malice would clearly be a relevant factor in determining whether or not costs should be payable on the indemnity basis.’