Jones MP v Associated Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE EADY |
| Judgment Date | 25 June 2007 |
| Neutral Citation | [2007] EWHC 1489 (QB) |
| Docket Number | Case No: HQ0602312 |
| Court | Queen's Bench Division |
| Date | 25 June 2007 |
[2007] EWHC 1489 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN's BENCH DIVISION
The Honourable Mr Justice Eady
Case No: HQ0602312
Ronald Thwaites QC and William Bennett (instructed by Carter-Ruck) for the Claimant
Bernard Livesey QC and Sarah Palin (instructed by Foot Anstey) for the Defendant
Hearing dates of the costs issue: 14th and 15th June 2007
RULING ON COSTS
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Hon. Mr Justice Eady:
The trial of this libel action took place between 11 and 14 June 2007 when the jury, after about five hours' deliberation, returned a majority verdict in the Claimant's favour and awarded £5,000 by way of damages. There then followed more than three hours of submissions on the issue of costs, in particular over the applicability of CPR 36.14. Later I received supplemental submissions in writing.
The relevant provision was introduced by the Civil Procedure (Amendment No. 3) Rules 2006 (SI 2006/3435). Although the underlying philosophy has not changed, it is necessary to have regard to the new wording, which differs somewhat from the former CPR 36.21. It is obviously necessary, in so far as they may be material, to have regard to those changes when considering the guidance afforded in the earlier authorities relating to the previous provisions. The current wording, so far as is material, is as follows:
“(1) This rule applies where upon judgment being entered —
(a) a claimant fails to obtain a judgment more advantageous than a defendant's Part 36 offer; or
(b) judgment against the defendant is at least as advantageous to the claimant as the proposals contained in a claimant's Part 36 offer.
(2) Subject to paragraph (6), where rule 36.14(1)(a) applies, the court will, unless it considers it unjust to do so, order that the defendant is entitled to –
(a) his costs from the date on which the relevant period expired; and
(b) interest on those costs.
(3) Subject to paragraph (6), where rule 36.14(1)(b) applies, the court will, unless it considers it unjust to do so, order that the claimant is entitled to –
(a) interest on the whole or part of any sum of money (excluding interest) awarded at a rate not exceeding 10% above base rate for some or all of the period starting with the date on which the relevant period expired;
(b) his costs on the indemnity basis from the date on which the relevant period expired; and
(c) interest on those costs at a rate not exceeding 10% above base rate.
(4) In considering whether it would be unjust to make the orders referred to in paragraphs (2) and (3) above, the court will take into account all the circumstances of the case including –
(a) the terms of any Part 36 offer;
(b) the stage in the proceedings when any Part 36 offer was made, including in particular how long before the trial started the offer was made;
(c) the information available to the parties at the time when the Part 36 offer was made; and
(d) the conduct of the parties with regard to the giving or refusing to give information for the purposes of enabling the offer to be made or evaluated.
…”
In July of last year an offer had been made on the Claimant's behalf to settle the case for £4,999 plus an apology. Mr Thwaites QC asked on his behalf for indemnity costs from the appropriate date, together with interest on damages and costs at 10% above base rate. He soon conceded that interest on damages would not be appropriate, for reasons explained below, but pursued the matter of indemnity costs plus interest (albeit ultimately confined to only 4% above base rate). These applications were firmly resisted by Mr Livesey QC for the Defendant. His primary submission is that the criteria set out in CPR 36.14(1)(b) have not been fulfilled.
The facts may briefly be summarised as follows. The Claimant is the Labour Member of Parliament for Clwyd South. He was suing in respect of articles in the issues of The Mail on Sunday published respectively on 14 and 21 May 2006.
The first was headed “Labour MP in foul-mouthed outburst at police guard” and alleged that during an incident (on 10 May 2006) in Portcullis House (being part of the Parliamentary estate) the Claimant had refused to show a security guard his House of Commons pass when requested to do so and twice told him to “fuck off”. The Claimant alleged that the article contained meanings defamatory of him, which included that he had refused to show his pass; that he had told the police security guard to “fuck off” twice; that as a result of his conduct the Serjeant at Arms had called for an investigation into his conduct; that he had been reported to the Labour Party Whips because of his conduct; and that he was to be disciplined by the Speaker following a complaint by a fellow Member of Parliament.
The second article appeared in the newspaper's “Black Dog column” and described the Claimant at “ludicrous”. It is alleged that the article bore the meaning that he had concocted a farcical and dishonest excuse to explain why he swore at a police security guard, who had asked him to produce his pass; namely, to the effect that “… he couldn't wear one because if Al Qaeda had got in, they would have been able to identify him”.
The Claimant gave evidence himself and called Mr Bob Ainsworth MP, the Deputy Chief Whip, and Sir Stuart Bell MP, who had been referred to and quoted in the first article. The Defendant relied upon the evidence of the security guard, the Serjeant at Arms, Chief Superintendent David Commins, who is the Divisional Commander responsible for day to day security at the Palace of Westminster, and Inspector Andrew Richford, who serves as the Operations Inspector within the Parliamentary estate and is one of the security guard's superior officers.
The Defendant newspaper accepted that, in certain respects, its article had been inaccurate but pleaded justification on the basis that its defamatory sting was substantially true. In particular, the security guard, Mr Christopher Ham aged 21, was called to confirm that the Claimant had only shown his pass to him on the morning in question at the third request and with “bad grace”. He gave evidence also that he had indeed told him to “fuck off” at the first two requests. The Claimant denied that he had used that expression, but nevertheless accepted that he only showed the pass with bad grace at the third request, having earlier told the security office that he did not “give a shit” what he was and that he ought to have been in a position to recognise all members of Parliament.
One can only speculate, in these circumstances, as to the evidence that was accepted and rejected by the jury and as to its reasoning processes. It would appear that the majority rejected the security officer's evidence at least in some respects, and in particular as to whether or not the Claimant told him to “fuck off”, but Mr Livesey does not accept that this is necessarily so. Whatever the position, it seems clear that the jury rejected the submission that the article was substantially true. It is unnecessary to speculate further.
Against that background, there is nothing to justify making a penal order against the Defendant. It is clear from the decisions of the Court of Appeal in Petrograde Inc v Texaco Ltd (Note) [2002] 1 WLR 947 and McPhilemy v Times Newspapers Ltd (No. 2) [2002] 1 WLR 934 that the costs regime under CPR Part 36 should not be regarded as carrying any of the punitive overtones previously associated with an order for indemnity costs. The new regime is rather aimed at bringing discipline to bear on litigants and encouraging reasonable offers of settlement to be made both by claimants and defendants. It is only upon this regime that Mr Thwaites relied in claiming an order for indemnity costs and for enhanced interest. There is no other basis for considering an order for indemnity costs as, for example, sometimes happens where the court intends to express its disapproval of a party's conduct or tactics.
The first question is whether or not Part 36 applies at all to the facts of the present case. In other words, I need to determine whether the judgment obtained against the Defendant may be characterised as being “at least as advantageous to the claimant as the proposals contained in [his] Part 36 offer”.
The offer in question was made by letter on 4 July 2006 in the following terms:
i) The Defendant was to pay the Claimant £4,999.00 in damages;
ii) It was to publish an apology, for which purpose a draft was enclosed for consideration;
iii) It was to undertake not to repeat the same or similar allegations concerning the Claimant; and
iv) It was to agree to pay his costs, to be assessed on the standard basis if not agreed.
The draft apology proposed was in these terms:
“In the Mail on Sunday on 14 May 2006 and 21 May 2006, we made allegations regarding the conduct of Martyn Jones MP. Having considered the matter, we now wish to state that these allegations were completely without foundation and we consequently withdraw them entirely. We regret that they were ever made.
We would like to apologise to Martyn Jones MP for the damage we have caused to his reputation. We have accordingly...
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