The British Broadcasting Corporation & Anor v The Secretary of State for Transport & Anor

In proceedings engaging competing public interests, costs should not automatically follow the event. Under Civil Procedure Rules 1998 CPR 44, the court retains a discretion to make a different order after considering all the circumstances, including the matters identified in CPR 44.4.

Where broadcasters or other news organisations assist the court in protecting open justice, a costs order made solely because the court resolves the balance against one party may deter valuable participation. The court may therefore make no order for costs, even where one party successfully achieves its litigation objective, if that outcome better reflects the public interest and the proper conduct of the proceedings.

The BBC and the Press Association brought a Part 8 claim concerning disclosure of evidence under Regulation 25 of the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 2018. BALPA joined the proceedings and successfully opposed the disclosure order. The court’s substantive decision was given in [2019] EWHC 135 (QB).

The present judgment concerned only BALPA’s application for a limited costs order. The central issue was whether BALPA should recover its costs because it had succeeded, or whether the court should exercise its discretion under CPR 44 having regard to the public-interest character of the proceedings and their close connection with a criminal trial.

1. Outcome. The court made no order for costs in relation to the Part 8 claim. BALPA therefore could not recover its costs, despite having successfully opposed the disclosure order.
2. Under CPR 44, costs generally follow the event if the court decides to make a costs order. That general rule is subject to the court’s discretion to make a different order, having regard to all the circumstances, including the matters specified in CPR 44.4.
3. The court distinguished the costs regime considered in Channel 4 Television Corporation v The Commissioner of Police for the Metropolis, [2019] EW Misc B2 (CCrimC). That case concerned a statutory no-costs regime and whether it was compatible with Article 10. It did not determine the exercise of discretion under CPR 44. Nevertheless, the considerations identified there could properly be given weight in the present discretionary decision.
4. It was contrary to the public interest to deter responsible broadcasters and news organisations from assisting criminal courts on questions of open justice. The media may be the only participants willing and able to ensure that proceedings remain public and properly reportable.
5. The claim was issued and determined during a criminal trial and concerned evidence played to the jury. The court therefore took account of the different approach to costs in the Crown Court. The proceedings were not private litigation, but involved balancing opposing public interests. A costs order based simply on the court resolving that balance against one party would not encourage appropriate assistance to the court.
6. The parties had conducted themselves appropriately. The order reflected the public interest in the efficient conduct of serious criminal proceedings in public and was not criticism of BALPA.