GB - Times Newspapers Ltd v Flood

Judgment

Lady Justice Sharp:

Introduction

The claimant in this case, Mr Gary Flood, brought proceedings for libel against Times Newspapers Limited (TNL) in May 2007. Six years later, the claim came before Nicola Davies J in a trial for the assessment of damages. She awarded Mr Flood £60,000 in damages. There is no appeal against that determination. The issue that arises on this appeal relates to the costs order she then made. She ordered TNL to pay Mr Flood’s costs of the action, including the costs of the trial of damages and the reserved costs of the trial of a preliminary issue before Tugendhat J in July and October 2009, which dealt with TNL’s defence of Reynolds privilege.

There were no CPR part 36 offers made by either side and the judge therefore had a discretion as to costs, which fell to be exercised in accordance with CPR 44. 2. This provides in part that:

(1) The court has discretion as to –

(a) whether costs are payable by one party to another;

(b) the amount of those costs; and

(2) If the court decides to make an order about costs –

(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but

(b) the court may make a different order.

…

(4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including –

(a) the conduct of all the parties;

(b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and

(c) any admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 apply.

(5) The conduct of the parties includes –

(a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction – Pre-Action Conduct or any relevant pre-action protocol;

(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(d) whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim.

(6) The orders which the court may make under this rule include an order that a party must pay –

(a) a proportion of another party’s costs;

(b) a stated amount in respect of another party’s costs;

(