Cambridge v Makin

Where an appeal about the meaning of allegedly defamatory words is resolved by agreement, the Court of Appeal may substitute agreed wording if it considers that wording preferable. In deciding costs before trial, the court assesses the parties’ realistic success in the appeal, including the substance of the reformulated meaning and the parties’ positions during negotiations. Costs may appropriately be left as costs in the case where neither party has clearly prevailed.

The claimant brought a libel action concerning an email sent to about 900 recipients. Tugendhat J ruled that the words bore a serious defamatory meaning, namely that the claimant had abused her position as a director of NRPSI to advance private interests in CINTRA. Permission to appeal was ultimately granted by Laws LJ. Before the substantive appeal, the parties agreed revised wording for the meaning, leaving costs as the only contested issue.

The Court of Appeal had to determine whether to replace the first-instance formulation and how to allocate the appeal costs.

1. The parties agreed that the first-instance formulation was clumsy and susceptible to improvement. The Court of Appeal considered the substitute wording preferable and substituted it.
2. The court rejected the submission that the substitute wording was substantively identical to the defendant’s pleaded Lucas-Box meaning. The wording materially reflected the claimant’s position that the email alleged misconduct and impropriety.
3. In assessing costs, the court considered realistic success, the substance of the reformulation, and the parties’ approach to the appeal and negotiations. It ordered each party’s costs in the case.
4. The judgment states that the appeal would be allowed and the wording substituted. The transcript’s final operative line records: “Order: Appeal dismissed.”

• Court of Appeal (Civil Division): Appeal from Tugendhat J’s pre-trial meaning ruling in the Queen’s Bench Division. Permission was ultimately granted by Laws LJ. The Court of Appeal substituted the agreed meaning and ordered costs in the case; the transcript’s final line records “Appeal dismissed”.