Times Newspapers Ltd v Flood

Under Civil Procedure Rules 1998 rule 44.2, the unsuccessful-party rule remains the starting point, but the court must weigh all the circumstances. In defamation proceedings, overall success is not measured mechanically by counting publications. Vindication, the seriousness of the libel, damages, partial success on a privilege defence, the overlap between issues, and the parties’ conduct and settlement stance may all matter. Success on most publications does not require an issue-based costs order where the claimant achieved vindication on the actionable part of the case. Refusal to compromise after the defence ceased to be available may counterbalance partial success. The Court of Appeal upheld a standard-costs order for the claimant.

Gary Flood brought libel proceedings against Times Newspapers Ltd over print and online publications alleging corruption. The High Court later held that privilege protected the print publication and earlier online publications, but not later online publications. Times Newspapers withdrew its justification defence and admitted liability. After awarding Flood £60,000 in damages, Nicola Davies J ordered Times Newspapers to pay the costs of the action, including the privilege hearing, on the standard basis: [2013] EWHC 4075 (QB).

Times Newspapers appealed, arguing that its success on privilege and on most publications required an issue-based costs order. The central issue was whether the judge had exceeded the wide discretion conferred by CPR rule 44.2.

1. Appeal dismissed. The Court of Appeal held that Nicola Davies J had acted within the wide ambit of her discretion under Civil Procedure Rules 1998 rule 44.2. She had made no error of principle and her costs order was not plainly wrong.
2. The general rule that the unsuccessful party pays the successful party was the starting point. The court had to consider all the circumstances, including the overall outcome, partial success, conduct and settlement offers. The judge was entitled to regard Flood as the successful party because he obtained substantial damages and vindication for a serious libel. An award of damages can vindicate reputation as well as compensate injury, distress and humiliation. The court relied on the approach in Clarke (t/a Elumina Iberica UK) v Bain & Anor [2008] EWHC 2636 (QB) and John v MGN Ltd [1997] QB 586 at p 607.
3. Overall success was not to be measured by raw numbers. Although each communication could technically give rise to a separate cause of action, the litigation was properly treated as one action with one award of damages. The seriousness of the allegation, characterised as a Chase level 2 meaning, and the vindication achieved were relevant. The court applied the reasoning in Chase v News Group Newspaper Ltd [2002] EWCA Civ 1772; [2003] EMLR 11, and Roache v News Group Newspapers Limited and others [1998] EMLR 161 at pp 168–169.
4. Times Newspapers had succeeded on a substantial part of the privilege issue, but that did not compel an issue-based order. The outcome was not clear-cut: each party had won on part, and the costs of privilege could not readily be separated from the justification issue. The judge was entitled to balance that success against Flood’s ultimate vindication.
5. The judge was also entitled to take account of Times Newspapers’ conduct and settlement stance. After learning that the investigation had exonerated Flood, it could have compromised the unprotected publications without conceding privilege for the earlier publications. Its refusal to do so was relevant. Article 10 ECHR principles concerning public-interest journalism did not require a different costs order. The absence of a Part 36 offer and the decision to award standard, rather than indemnity, costs were upheld.

1. Supreme Court: On the earlier privilege appeal, the Supreme Court restored privilege for the print publication and online publications up to 5 September 2007 under [2012] UKSC 11; the remaining issue was later withdrawn.
2. Court of Appeal (Civil Division): On the earlier privilege appeal, the court had initially held that privilege did not attach to the pre-September 2007 publications under [2010] EWCA Civ 804.
3. Court of Appeal (Civil Division): On the present costs appeal, the court dismissed Times Newspapers’ appeal and upheld the order requiring it to pay Flood’s costs on the standard basis.
4. High Court: Nicola Davies J awarded Flood £60,000 in damages and ordered Times Newspapers to pay the costs of the action, including the privilege hearing, under [2013] EWHC 4075 (QB).