His Majesty's Attorney General for England and Wales v British Broadcasting Corporation

In closed-material litigation, costs do not automatically follow the event. The court must assess success by taking a common-sense view of the litigation as a whole and comparing the relief sought with the final outcome. An issue may include a question on which no substantive relief could be granted, such as whether a hearing should be conducted in public. Where success substantially depends on closed material unavailable to the opposing party, that party may not have acted unreasonably in contesting the proceedings. The costs discretion should then be exercised broadly and fairly, with regard to the desirability of avoiding complex assessment proceedings.

The Attorney General sought injunctive relief to prevent the BBC from identifying an individual alleged to have been a covert human intelligence source who had abused former partners. Earlier interlocutory judgments addressed open justice, the grant of interim relief and the information that could safely be published. The proceedings were ultimately resolved by consent, with costs determined on written submissions.

The Attorney General contended that she was the successful party because the BBC could not identify the individual. The BBC argued that the result was a compromise, that it had succeeded on important issues, and that the decisive interim relief had depended substantially on closed material. The central issue was the appropriate order for costs.

1. Overall success. The court rejected the submission that the Attorney General was wholly successful. The original relief sought was substantially broader than the final injunction. The BBC was permitted to publish detailed allegations about the individual, provided that he was not named or otherwise identified. Taking the litigation as a whole, the outcome was between the parties’ original positions, so neither was wholly successful.
2. Issues. The discretion under CPR 44.2 is deliberately broad. An issue is not limited to a matter for which a party could receive substantive relief. The open justice question therefore counted as an issue, and the BBC was entirely successful on it.
3. Closed material. The ordinary rationale for costs following the event is that parties can assess whether their case has reasonable prospects. That rationale is weakened where success depends substantially on closed material which the opposing party has not seen and could not predict. In such a case, the losing party may not have acted unreasonably in contesting the proceedings. Conversely, substantial success on open points will not ordinarily be displaced merely because some closed material was used.
4. Application. The Attorney General’s success in obtaining an injunction protecting the individual’s identity depended materially on closed evidence establishing a real and immediate risk of death or serious injury and on closed evidence concerning security measures. The BBC could not assess or predict that material. It therefore could not be said to have acted unreasonably in contesting the principle of an interim injunction. The identification issue was best regarded as a score draw.
5. Order. Standing back and considering what justice required, the fairest and simplest result was that each party should bear its own costs. No separate order was made for the costs of the costs submissions.