James Price QC and William Bennett (instructed by Edwin Coe ) for the claimant; Richard Rampton QC and Kate Wilson (instructed by Times Newspapers Ltd, Legal Department ) for the defendant.
The claimant, Gary Flood, brought proceedings for libel against the defendant, Times Newspapers Ltd ("TNL"), in May 2007. Six years later, the claim came before Nicola Davies J in a trial for the assessment of damages: [2013] EWHC 4075 (QB); [2013] CN 1987. The judge awarded the claimant £60,000 in damages. Further, TNL was ordered to pay the claimant'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 Tugenhadt J in July and October 2009, which dealt with TNL's defence of qualified privilege. TNL appealed against the costs order that was made. TNL contended that the judge reached a decision that was plainly wrong because she did not balance the various factors which she considered fairly in the scale. In particular, TNL had won a substantial victory at the qualified privilege hearing which had occupied some four days. In those circumstances, the judge's decision that it should pay the entire costs of the litigation was unjust and plainly wrong. An issue arose as to the costs on the issue of privilege and who should pay them.
SHARP LJ, dismissing TNL's appeal, said that there were no CPR r 36 offers made by either side and the judge therefore had a discretion at to costs, which fell to be exercised in accordance with CPR r 44.2 (see para 2 of the judgment). The issue was whether the judge had exceeded the wide ambit of discretion given to her on the issue of costs. There were a number of important factors relevant to costs as the judge had clearly recognised and which she had carefully balanced in reaching her decision, namely: (i) the overall outcome of the case in terms of the award of damages to the claimant and the vindication she achieved by pursuing it; (ii) TNL's success on the issue of privilege; and (iii) the parties' approach to settlement. The judge had regarded the claimant as the successful party in the litigation and she had been entitled to do so. The judge had not exceeded her wide ambit of discretion or made any error of principle, and had been entitled to exercise her discretion in the way that she had exercised it (paras 2, 6, 33, 34, 36-39, 42, 45, 52).
SIR TIMOTHY LLOYD and MACUR LJ agreed (paras 53, 54).