David Paisley v Graham Linehan (Costs)

Following a trial of preliminary issues in a libel claim, the usual order is costs in the case. The court may depart from that approach where a party’s unreasonable conduct causes an additional hearing or prevents the court from completing the preliminary issues.

A claimant must identify clearly the precise statement or statements complained of and the dates and manner of publication. The pleaded statement must be distinguished from the contextual material relied upon to determine meaning. Where online comments are displayed variably, only material that can properly be treated as part of the same publication, or that could reasonably be expected to be read by all publishees, may qualify as context.

This was a costs judgment following two earlier judgments in a libel claim. The claimant complained of an article published on the defendant’s Substack and numerous subscriber comments said to convey imputations including that the claimant was a paedophile.

At the first preliminary-issues hearing, the court could not fairly determine the issues concerning three comments because the pleadings lacked clarity and the parties had not established how Substack displayed comments to readers. A further process and hearing followed, culminating in the Second Judgment, [2025] EWHC 228 (KB).

The issue was whether the claimant should bear the defendant’s costs of that further process, or whether the usual order of costs in the case should be made.

1. The usual costs order after a trial of preliminary issues in a libel claim is costs in the case. That approach reflects the possibility that there may be no clear winner, or that the party succeeding on preliminary issues may not ultimately succeed at trial.

2. The court may make a different order where unreasonable conduct causes unnecessary costs. The court must assess both the parties’ responsibility for the difficulty and the extent to which their conduct caused the additional expenditure.

3. The claimant’s pleading was materially defective. A claimant must choose and identify the precise statement or statements complained of, with proper particulars of publication. Alternative formulations of the statement cannot be used to combine the statement complained of with alternative cases about contextual material. That approach created uncertainty about the words published and the relevant publication dates.

4. Context is a separate pleading issue. Material may include common knowledge, text or images forming part of the publication under the rule in Charleston v News Group Newspapers Ltd [1995] 2 AC 65, and further material reasonably expected to be read by all publishees or all publishees during an identified period. In this case, because the display of Substack comments varied between readers, only comments in the same thread and visible at the same time could sensibly be relied upon as context.

5. The defendant also acted unreasonably by failing to clarify or challenge the defective pleading at an earlier stage and by pleading an insufficiently precise positive case on context. The claimant nevertheless bore the greater responsibility and had the greater causative impact.

6. The claimant was ordered to pay 50% of the defendant’s costs of the further process and the January 2025 hearing. The court declined summary assessment and ordered a payment on account of £23,000 within 28 days, subject to agreement or further order.

This was a first-instance costs judgment following the court’s First Judgment, [2024] EWHC 1976 (KB), and Second Judgment, [2025] EWHC 228 (KB), in the same libel proceedings.