Joseph & Ors v Spiller & Anor

In a defamation action, a claimant’s serious misconduct during the proceedings may be relevant to damages and costs. An attempt to pervert the course of justice by forgery or fraudulent evidence may justify limiting damages to a nominal sum and may also justify striking out the claim, including after trial where the damages would be small. The same conduct may affect a jointly pursued claim where the claimants’ reputation is advanced under a common performing name. Costs must also reflect material misconduct by the defendant. The court therefore ordered that the claimants recover nominal damages of 1p but pay 75% of the defendants’ costs.

The judgment concerned the costs consequences of an earlier defamation judgment in favour of three claimants. The claimants had received only nominal damages after the court found that the first claimant had forged documents and given fraudulent evidence in pursuing a claim for special damages. The court had also found that the first defendant gave false evidence concerning his relationship with a person referred to in the defamatory words. At the costs hearing, the claimants sought most of their costs on the basis that they had succeeded on liability. The defendants argued that the claimants’ misconduct justified the nominal damages and a substantial costs order against them.

1. Effect of the claimants’ misconduct. The court rejected the submission that the claimants were being penalised twice. The finding that the first claimant had forged documents and given fraudulent evidence constituted an attempt to pervert the course of justice. That misconduct was relevant to damages, and it would affront justice to award more than nominal general damages. Its effect on damages was distinct from its effect on costs.
2. Strike-out for abuse. Applying the approach approved in Fairclough Homes Ltd v Summers [2012] UKSC 26, and stated by the Court of Appeal in Masood v Zahoor [2009] EWCA Civ 650, the court held that the claim would have been struck out as an abuse of process had the fraud been admitted before trial. The same reasoning applied to the uncontested £850 special damages. The claimants should not recover that sum as a result of continuing to pervert the course of justice during the trial.
3. Joint claim. The second and third claimants were not in a better position merely because they were not personally dishonest. The defamatory words identified the claimants by their joint performing name. Their shared reputation had been affected by the fraud used to pursue the joint claim.
4. Costs. The first defendant’s false evidence had underlain the false allegation in the defamatory words. It would therefore be unjust to make the claimants pay costs attributable to that evidence. Taking that matter into account, the appropriate order was that the claimants pay 75% of the defendants’ costs, excluding costs already dealt with by earlier orders. Judgment was entered for the claimants for damages of 1p.