Hmag v BBC
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 18 November 2022 |
| Neutral Citation | [2022] EWHC 2925 (KB) |
| Docket Number | Case No: QB-2022-000174 |
| Court | King's Bench Division |
[2022] EWHC 2925 (KB)
Mr Justice Chamberlain
Case No: QB-2022-000174
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Oliver Sanders KC, Jennifer Thelen and Emmanuel Sheppard (instructed by the Treasury Solicitor) made written submissions for the Claimant
Adam Wolanski KC and Hope Williams (instructed by the BBC Legal Division) made written submissions for the Defendant
Approved Judgment
This judgment was handed down remotely at 10.30am on 18 November 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
Earlier this year, the Attorney General issued a claim against the BBC seeking an injunction to restrain the BBC from publishing certain information about an individual, X. The allegation at the centre of the BBC's proposed story was that X was a covert human intelligence source (or CHIS) for the Security Service (MI5), who had physically and psychologically abused two female partners, in one case using his alleged CHIS status to terrorise and control her.
There were three substantive hearings. On 16 February 2022, I made a declaration under s. 6 of the Justice and Security Act 2013 and heard argument on the question whether, as the Attorney General submitted, the OPEN part of the hearing of her application for interim relief should proceed entirely in private. I rejected the Attorney General's submission on this point and gave my reasons in an OPEN judgment made public on 24 February 2022: [2022] EWHC 380 (“the open justice judgment”).
On 1 and 2 March 2022, I heard the Attorney General's application for interim injunctive relief. I decided that injunctive relief to restrain publication of X's identity would be granted, but that the relief would not prevent the BBC from making the allegations central to its story. I gave my reasons in OPEN and CLOSED judgments handed down on 7 April 2022: [2022] EWHC 826 (QB) (“the interim injunction judgment”).
The third hearing was held to resolve disputes between the parties about what information could safely be published without revealing X's identity. It took place on 27 April 2022, partly in OPEN and partly in CLOSED. The OPEN hearing was partly in public and partly in private. I gave my judgment on 18 May 2022, partly in public and partly in private: [2022] EWHC 1189 (QB) (“the identification judgment”). Some of the disputes were resolved in the Attorney General's favour and some in the BBC's. I granted an interim injunction in terms which reflect this.
Very shortly after the identification judgment was handed down, between 19 and 22 May 2022, the BBC broadcast programmes and published stories on its website about X, without naming or identifying him.
Negotiations then followed with a view to settling the claim. I approved a consent order disposing of the proceedings by way of a final injunction and providing for written submissions, and a written determination, on costs. This judgment explains my decision on costs.
The Attorney General's submissions
The Attorney General accepts that there should be no order in respect of the CLOSED part of the proceedings and accepts the Crown's liability to pay the costs of the Special Advocates, but invites me to order the BBC to pay her costs of the OPEN part.
The general rule is that a successful party should have its costs: CPR 44.2(2)(a). Identifying the successful party is a matter of common sense, to be determined by reference to the litigation as a whole: HLB Kidsons v Lloyds Underwriters [2007] EWHC 2699 (Comm), [2008] 3 Costs LR 427, [10]. The court can depart from the general rule ( CPR 44.2(2)(b)), but should not do so too readily: Fox v Foundation Piling Ltd [2011] EWCA Civ 790, [2011] CP Rep 41, [62]. It should be borne in mind that, in complex litigation, the successful party is likely to fail on one or more issues. That cannot itself justify an issue-based costs order: Murphy & Sons v Johnson Precast Ltd (No. 2) [2008] EWHC 3104 (TCC), [2009] 5 Costs LR 745, [10]. In any event, what constitutes “an issue” must be something for which a party could be granted relief: White Book 2022, para. 44.2.10.
The Attorney General advances four points in support of her application.
First, she was the successful party. The issue presented was binary: could the BBC identify X or not? The answer was “No”.
Second, the BBC did not achieve anything in the litigation. The Attorney General never objected to a story which did not name X. Until the April judgment, the BBC's position was that it would not publish the story if it could not name X.
Third, the fact that the BBC successfully argued that the OPEN portion of the hearing on 1 and 2 March 2022 should be conducted in public does not change the position on costs. The issue would not have arisen at all if the BBC had acted lawfully and not attempted to publish information which, as the court found, it had no right to publish. In any event, the costs attributable to the open justice argument were minimal. The hearing of 27 April 2022 resulted in “wins and losses for both sides”. It would not have been necessary had the BBC accepted the Attorney General's initial position (that there was no objection to a story which did not name or identify X). Furthermore, certain aspects of the story went beyond what was permitted by the injunction.
Fourth, since CPR Part 82 contains no specific provisions on costs, the starting point should remain that costs follow the event, even though a closed material procedure was involved: R (XH) v Secretary of State for the Home Department [2017] EWCA Civ 41, [2018] QB 355, [160]. There is nothing to warrant any other order. The Attorney General says this:
“The BBC was aware from the outset that the AG's case, including the CLOSED material, was a substantial one. There is no history of the AG making exaggerated claims to the media in connection with matters of national security, either in correspondence or in litigation. In these circumstances, the litigation risk would have been obvious to the BBC. It was, of course, for the BBC to decide to take that risk. However, having done so, there is no principled basis to now depart from the ordinary rule that costs consequences follow that decision.”
The BBC's submissions
The BBC submits that there should be no order as to costs because neither party was successful within the meaning of CPR 44.2(2)(a). Alternatively, insofar as costs were reserved, they should be awarded on an issue-by-issue or proportional basis; and insofar as they were “costs in the case”, each party should bear its own.
The court can determine that there was no clear successful party and thus that the general rule does not apply: Cantor Gaming Ltd v Game Account Global Ltd [2007] EWHC 2381 (Ch), [26]–[27]; Square Mile Partnership v Fitzmaurice McCall Ltd [2006] EWHC 236 (Ch), [34]. There is no rule that issue-based orders can only be made in an exceptional case: F&C Alternative Investments (Holdings) Ltd v Barthelemy (No. 3) [2012] EWCA Civ 843, [47] and [49].
Although there is no separate costs regime applicable to CLOSED proceedings, the courts have been willing to take into account the particular features of such proceedings when deciding questions of costs. The general principle is that the residual discretion to award costs should be exercised “most cautiously and sparingly”: see CF v Secretary of State for the Home Department (Wilkie J, unreported, 1 May 2013, as summarised in Begg v HM Treasury [2015] EWHC 1851 (Admin), [15]. See also the Court of Appeal's judgment in that case: [2016] EWCA Civ 568, [2016] 1 WLR 4113, at [21] and [25]–[27].
The BBC submits that it was the winner at the first stage (dealing with open justice aspects). The court rejected the Attorney General's submission that the OPEN part of the interim injunction hearing should take place in private, relying in part on the fact that it appeared that a Government source had briefed the press: see the open justice judgment, at [33]. Moreover, at this stage, the BBC objected to the very broad injunction initially sought by the Attorney General, which would have prevented them from publishing any of the information contained in a letter they sent to the Home Office without the...
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