Charles Elphicke v Times Media Limited

On discontinuance, the presumption under Civil Procedure Rules 1998, rule 38.6 remains the starting point. If the presumption is displaced, the court retains a wide discretion over the resulting costs order. Serious misconduct may justify a reduction without requiring the claimant to receive its costs or eliminating the defendant’s recovery.

Conduct that is disputed or unsuitable for summary determination may be left to detailed assessment. The presumption under rule 44.2(8) in favour of an interim payment is distinct. Conduct already reflected in the substantive costs order need not justify withholding payment on account. An appellate court may interfere with a discretionary costs decision only for an error of principle, material omission or inclusion, or a decision outside the generous ambit of reasonable disagreement.

The appellant discontinued claims in misuse of private information and defamation against the respondent. The Master ordered him to pay 80% of the respondent’s costs, ordered an interim payment of £229,848.41, and ordered payment of 80% of the respondent’s costs of the applications.

The appellant sought renewed permission to appeal, alleging errors in applying the discontinuance costs presumption, the interim-payment provisions, the costs of the applications, the test for permission to appeal, and procedural unfairness in the Master’s handling of written submissions. The central issues were whether the Master had erred in principle, exceeded the permissible discretionary range, or acted unjustly through a serious procedural irregularity.

1. Permission refused. None of the five proposed grounds had a real prospect of success, and there was no other compelling reason for an appeal.
2. Under rule 38.6 of the Civil Procedure Rules 1998, a claimant who discontinues is presumptively liable for the defendant’s costs. The burden lies on the claimant to show a good reason for departure. The fact that the claim might have succeeded, or that discontinuance was pragmatic or financial, is insufficient. If the presumption is displaced, the court has a wide range of discretionary costs orders available.
3. The Master was entitled to treat the respondent’s collateral use of witness statements and failure to preserve evidence as serious conduct opening the rule 38.6 gateway, while leaving disputed allegations of lying, pre-action failures and ADR failures to detailed assessment. The 20% reduction was substantial and fell comfortably within the permissible discretion. The court need not calculate a separate percentage for each item of misconduct.
4. Rule 44.2(8) creates a presumption in favour of an interim payment on account unless there is good reason not to order one. The Master was entitled to avoid double penalising the respondent, having already reflected its misconduct in the primary costs order. The reduction of the payment on account to 80% of budgeted costs and 50% of unbudgeted costs addressed the uncertainty arising from the remaining conduct issues.
5. The Master was entitled to order the appellant to pay 80% of the respondent’s costs of the applications. Although the appellant displaced the rule 38.6 presumption, he obtained only a limited reduction and did not substantially succeed overall.
6. The alleged procedural unfairness was not arguable. The appellant had addressed percentage reductions, the Master did not refuse him a reply to the respondent’s supplemental submissions, and written submissions on the narrow issue of the interim payment were procedurally permissible and proportionate.

• High Court (King’s Bench Division): Master McCloud’s orders dated 14 October 2024 and 19 November 2024 required the appellant to pay 80% of the respondent’s costs and an interim payment of £229,848.41. Permission to appeal was refused on the papers by Sir Stephen Stewart on 21 March 2025.
• High Court (King’s Bench Division): Mrs Justice Hill refused the renewed application for permission to appeal.