White v Express Newspapers

Where parties agree that a hearing will determine meaning as a preliminary issue, costs should reflect the substance and practical outcome of that hearing, rather than treating an unmade application as successful. The court should not decide a substantive issue solely to determine costs. A preliminary meaning hearing may benefit both parties by avoiding duplicated hearings. Costs may reflect both a claimant’s exaggeration of the alleged meaning and success in establishing a lesser meaning. The appropriate result may be no order as to costs, subject to a separate order for costs arising from a later dispute about the form of the order.

Two libel claims concerned the meaning of words complained of. The defendant had issued applications under Part 53 Practice Direction 4.1(1), seeking rulings that the words were incapable of bearing the meanings attributed by the claimants. The parties instead agreed that the hearing should proceed as a trial of a preliminary issue, at which the court determined the actual meaning.

After judgment on meaning, the defendant sought two thirds of its costs, alternatively no order as to costs. The claimants submitted that costs should be in the case. The issue was how costs should be allocated where the claimants had overstated the seriousness of the meanings but had achieved lesser findings.

1. The applications were not successful. The court had not ruled that the words were incapable of bearing the meanings attributed by the claimants. It had decided the actual meanings after the parties agreed to a preliminary issue trial. The court declined to determine that unmade issue solely for costs.
2. The preliminary issue procedure had advantages for both parties because it avoided potentially duplicated hearings on meaning. The parties had agreed to the procedure without making their agreement conditional on costs.
3. In assessing costs, the court could take account of the claimants’ exaggerated pleaded meanings and their success in establishing lesser meanings. Both claimants had achieved something by the judgment. The proper order for the preliminary issue was therefore no order as to costs.
4. The court accepted that exaggerated libel claims may properly be discouraged through costs orders, referring to the reasons given in John v Guardian [2008] EWHC 3066 (QB). For the costs of resolving the form of the order, the claimants were to pay the defendant’s costs from the date of its open offer. There was no order for costs for the intervening period.

not stated in the judgment.