Gough v Local Sunday Newspapers (North) Ltd and Another (No. 2); Field v Local Sunday Newspapers (North) Ltd (No.2)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon Brown:,Lord Justice Keene,Mr Justice Bell,LORD JUSTICE KEENE,MR JUSTICE BELL |
| Judgment Date | 24 July 2003 |
| Neutral Citation | [2003] EWCA Civ 297,[2003] EWCA Civ 1276 |
| Docket Number | A2/2002/0666,Case No: A2/2002/0666/QBENF |
| Court | Court of Appeal (Civil Division) |
| Date | 24 July 2003 |
[2003] EWCA Civ 1276
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Mr Justice Gray)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Keene
Mr Justice Bell
A2/2002/0666
MR MALONE QC (instructed by Peter Carter-Ruck & Partners, London EC4A 3BQ) appeared on behalf of the Appellants.
MR ELLIOTT (instructed by Farrer & Co, London WC2A 3LH) appeared on behalf of the Respondents.
Thursday, 24th July 2003
The substantive judgment in this appeal was handed down on 12th March 2003, dealing with liability and leaving the questions of damages and costs to be dealt with it a later date. Happily the quantum of damages has been agreed. We shall make an order in the agreed terms. That involves an order that the first respondent pay £22,500 to the appellant and the second respondent pay £5,000 to the appellant. There are provisions for the non-enforcement of the order against the second respondent in the terms set out in the letter of 22nd July 2003, which counsel will provide to the associate in the form of a draft order, and the terms will also deal with an apology. The respondents have already consented to payment of the appellant's costs of the appeal, so we need not deal with that. All that remains is the issue of costs below.
The trial judge made an order which reflected the fact that there had been three actions tried together before him but not consolidated. He decided, therefore, to treat the costs of each side as a single entity, because very many of those costs were in common and that made perfectly good sense in the situation with which he had to deal. Thus he ordered that the defendants pay to the successful claimant, Mr Field, the returning officer, 20 percent of all the claimants' costs —treated globally that is —but that the three claimants (Mr Gough, Mr Darkoh and Mr Field) pay 80 percent of the defendants' costs of the actions.
Since then Mr Gough has appealed and has been successful before us. Mr Darkoh originally got permission to appeal but did not pursue it. Nor has Mr Field pursued an appeal, perhaps not surprisingly, and the appeal that was originally to be pursued against the order relating to him has, likewise, not been pursued. Consequently, only Mr Gough is before the court formally as a party to this appeal. However, no-one suggests that the trial costs can now be separated out between the three actions, not at least without quite disproportionate expense.
The question therefore arises as to how we deal with the costs order which was made below, which (one might say) entangled the costs of all three claimants together as well as those of both the defendants.
Mr Malone QC, who appears on behalf of the appellant, seeks 80 percent of the claimants' costs for the claimants as a whole. That 80 percent reflects the issues upon which the claimants lost below, hence the reduction from 100 percent. It is said by him that the vast preponderance of the costs in respect of the rule 47 issue concerning elections were incurred in common. It is acknowledged by Mr Malone that there were some costs, albeit a small amount, which arose in respect of Mr Darkoh on which Mr Darkoh did not succeed; but it is said that Mr Darkoh was broadly in the right as a result of this Appeal Court's decision, and that insofar as anything separate related to him, such as his handling of the application before the District Judge, that was insignificant seen in the totality of the case. Consequently, Mr Malone suggests there should be an allowance of about 10 percent of two-thirds —the two-thirds being attributable to Mr Gough and Mr Darkoh together —that 10 percent representing in the total picture some 7 percent. When that is added to the situation in respect of Mr Field, one comes up with the figure of about 80 percent arithmetically, which Mr Malone has referred to. At one point it was being suggested on behalf of the appellant that there should be an order that some 60 percent of the claimants' total costs below be paid to the appellant. That 60 percent would reflect the fact that the order below already provides for Mr Field to be paid 20 percent of the claimants' costs, so that would have given a total liability for the defendants of 80 percent of the claimants' costs.
Mr Elliott on behalf of the respondents resists that order. He accepts that a costs order should be made in favour of Mr Gough, but he emphasises that Mr Darkoh has not been before this court and that the court has not heard argument specifically in relation to the issues insofar as they affected Mr Darkoh or indeed Mr Field. He points out that the judge below made the claimants jointly and severally liable in respect of the defendants' costs. He therefore submits that Mr Gough is entitled to one third of the total of the claimants' costs but no more. It is said that there is a proper distinction to be drawn between Mr Gough and Mr Darkoh because of the criticisms by the judge below of the way in which Mr Darkoh conducted the application before the District Judge. Nonetheless, Mr Elliott does accept that one cannot simply take Mr Gough out of the order that was made by Gray J, the order to pay 80 percent of the defendants' costs below, because that would have the effect of increasing the potential liability of the other two claimants to the defendants, and neither Mr Darkoh nor Mr Field are here. It is also accepted on behalf of the respondents that this court does have the power to substitute a costs order in respect of that order that the claimants do pay 80 percent of the defendant's costs if that latter order is quashed by this court.
For my part, I can see that this is a complex matter, as there was a composite order made by the judge below affecting all three claimants. In my view it cannot now be unpicked in any successful way. The order that the claimants pay 80 percent of the defendants' costs below must be quashed. It then follows, in my judgment, that this court has the power to substitute its own order for that.
The respondents argued that there should be a cross order making a costs order in the defendants' favour, whatever view this court comes to in relation to a costs order in favour of the appellant or the claimants. I can see no justification for making any costs order in favour of the defendants. It is much more sensible to adopt the normal approach adopted in these matters and to reflect the issues upon which the defendants succeeded below by reducing the percentage of the claimants' costs payable by the defendants. I regard the figure which Mr Malone has put forward —80 percent overall —as a figure which properly reflects the issues on which the claimants lost below. That would be a total liability on the part of the defendants to the claimants. I would therefore quash the costs order against the claimants in its entirety.
I do not accept the distinction which the respondents seek to draw between the positions of Mr Gough and Mr Darkoh. Insofar as there were distinctions, they were not substantial once this court's ruling in respect of rule 47 is taken into account. The vast bulk of the costs of the trial in respect of those two individuals must be seen as having been incurred in common.
In that situation I, for my part, would quash the totality of the costs orders below, including that in favour of Mr Field, and substitute in its place an order that the respondents do pay 80 percent of the claimants' costs below. That will not adversely affect Mr Field, and it is one which in my judgment this court can properly and with justice make because at the end of that exercise he will not be adversely affected.
I agree.
Order: As per minute of order.
[2003] EWCA Civ 297
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(Mr Justice Gray)
(QUEEN'S BENCH DIVISION)
Lord Justice Simon Brown (Vice-President Of The Court Of Appeal Civil Division)
Lord Justice Keene And
Mr Justice Bell
Case No: A2/2002/0666/QBENF
Patrick Moloney Esq, QC (instructed by Messrs Peter Carter Ruck) for the Appellant
Desmond Browne Esq, QC & Rupert Elliott Esq (instructed by Messrs Farrer & Co) for the Respondents
Introduction
What should happen when, the result of an election having been declared by the returning officer, a parcel of ballot papers is discovered uncounted? Surprisingly, perhaps, the rules of election law, comprehensive though they might appear, provide no answer. Mr Gough, the borough solicitor to the Bedford Borough Council ("the Council") faced this very problem following the council election on 4 May 2000 and dealt with it as he thought best. The respondents published statements condemning what he did as grossly incompetent. Gray J, sitting without a jury, on 1 March 2002 agreed with that assessment and found the defamatory statements substantially justified. Mr Gough now appeals to this court with the permission of Sedley LJ. The appeal is somewhat unusual. Although directed towards a judgment made in libel proceedings it turns principally upon disputed questions of election...
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