Defamation- Libel – Justification – Conditional fee agreements – Proportionality – Costs capping
Eady J struck out in part the defendant’s Lucas-Box meaning and particulars of justification on the grounds that they infringed the repetition and/or conduct rules. The judge also refused to impose any condition on the claimant’s further conduct of the claim which was being funded on the basis of a CFA. The defendant appealed.
(1) Whether it was permissible for the defendant to justify a meaning that ‘the police suspected’ the claimant of involvement in terrorism.
(2) Whether the court could and, if so, should impose some financial discipline on the claimant’s conduct of the claim.
(1) The Defendant was entitled to rely upon the fact of police suspicion in its particulars of justification.
(2) The Court declined to exercise any control over costs in the instant case, leaving the issue to the trial judge or costs judge. The following guidance was endorsed: a court can, in an appropriate case, make a costs capping order prospectively, at the allocation stage, on the whole or any part of proceedings. CPR 3.2(m) confers the requisite power. Cost capping should be inclusive, insofar as the CFA-funded part is concerned, of any additional liability.
Although the appeal failed, the Court of Appeal permitted justification of the fact of police suspicion when the defendant was justifying reasonable / strong grounds to suspect the claimant. It also offered potentially far-reaching guidance on the proper conduct of defamation claims funded with a CFA.
NOTE: In 5RB’s advertisement in Legal Week for 8 July 2004, we mistakenly said that James Price QC had appeared for the Telegraph in the Court of Appeal. Whilst he did appear at first instance, Andrew Caldecott QC appeared on the appeal due to Mr Price’s unavailability. We are sorry for any confusion caused.
