Lara Stone and Another v Flynet Pictures UK Ltd
| Jurisdiction | England & Wales |
| Judge | Master Gordon-Saker: |
| Judgment Date | 02 February 2017 |
| Neutral Citation | [2017] EWHC B3 (Costs) |
| Court | Senior Court Costs Office |
| Docket Number | Case No: AGS 1603740 |
| Date | 02 February 2017 |
[2017] EWHC B3 (Costs)
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
Royal Courts of Justice
Strand, London, WC1A 2LL
Master Gordon-Saker
Case No: AGS 1603740
Mr William Bennett (instructed by Schillings) for the Claimants
Mr Michael Tyler (instructed by Kingsley Napley) for the Defendant
Hearing date: 19 th December 2016
Judgment Approved
The background8
The Claimants married in 2010. The First Claimant is a model and the Second Claimant is a comic entertainer. They separated in January 2015 when the First Claimant and their son left the family home. The separation became public knowledge as the result of an article in The Sun newspaper on 4 th March 2015. It is not in issue that on the same day an incident took place outside the family home. The Claimants alleged that a group of 20 to 30 photographers ran at the Second Claimant in the street, taking photographs and shouting questions. The Claimants believed that one of the photographers, who was not identified, had been sent by the Second Defendant, a picture agency. Photographs taken during the incident were published in The Sun and its associated website, MailOnline, the Daily Star and Now! magazine.
On 12 th March 2015 the Claimants commenced proceedings in the Queen's Bench Division claiming an injunction pursuant to s.3 Protection from Harassment Act 1997. The other defendants to the claim were two photographers, who were said also to have been part of the group, and the publishers of the newspapers, magazine and websites which had published the photographs.
By paragraph 3 of the Particulars of Claim the Claimants described the Second Defendant as:
… a photographic agency. It arranges for photographs to be taken of persons of interest to the media when they are going about their daily lives. Furthermore it buys or licenses or helps third parties buy or license such photographs from photographers which it then sells to newspapers and magazines.
By its Defence the Second Defendant denied paragraph 3 of the Particulars of Claim save that it admitted that:
3.1 The Second Defendant's principal business is in selling and licensing photographs. Around 75% of this work is arranged with PR agencies and celebrity agents. The latter regularly inform the Second Defendant of where a celebrity will be or where an event is taking place, with the intention that the Second Defendant sends one or more photographers to attend and take photographs.
3.2 The Second Defendant will react to major news stories by sending photographers to locations where it believes newsworthy photographs may be taken, but when doing so it does not follow individuals or place them under surveillance.
3.3 …
3.4 The Second Defendant's photographers do not attempt to ask questions or otherwise obtain information from the subject of their photographs. They are solely there to take photographs.
3.5 The Second Defendant also works with investigative journalists: projects on which the Second Defendant has worked include those relating to illegal immigrants, the London riots and benefit fraud.
3.6 The Second Defendant does not "buy" photographs. It does, in appropriate circumstances, assist freelance photographers in selling their own photographs.
3.7 In addition to the photography work the Second Defendant also provides video content, including live broadcasts, to a variety of clients including Yahoo! and other major US websites.
The Second Defendant admitted that it had sent 2 photographers to take photographs outside the Claimants' family home on 4 th March 2015, but contended that those photographers did not move any closer to the Second Claimant than about 20 metres and did not behave aggressively or shout.
In paragraph 20 of his witness statement dated 22 nd May 2015 My Hayward, a director of the Second Defendant, explained that the photographs taken of the Second Claimant by its photographers were sent to media outlets that were covering the story. Two of the photographs were published by the Mail Online under a subscription arrangement.
The claim was concluded by a Tomlin order dated 6 th November 2015 on terms set out in a confidential schedule. Pursuant to that order the Second Defendant is entitled to its costs of the claim, with those costs incurred after 11th May 2015 to be assessed on the indemnity basis. Paragraph 2 of that order provides that:
The court, whether at a detailed assessment or otherwise, shall determine whether the Claimants ought to pay the Second Defendant a success fee and an amount regarding the cost of its insurance policy.
The Second Defendant instructed Kingsley Napley under a conditional fee agreement dated 10 th June 2015 which provided for a success fee of 75 per cent and purchased an after the event insurance policy issued on 5 th June 2015 for a premium of £10,600 including insurance premium tax. The Second Defendant seeks to recover both the success fee and the premium from the Claimants.
The parties have agreed all of the issues on the assessment with the exception of whether the Second Defendant may recover additional liabilities. This judgment gives the reasons for my decision on that issue.
The legislation
Section 58A(6) of the Courts and Legal Services Act 1990 , as inserted by s.27 Access to Justice Act 1999, provided that:
A costs order made in any proceedings may, subject in the case of court proceedings to rules of court, include provision requiring the payment of any fees payable under a conditional fee agreement (including one which provides for a success fee).
Section 44 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 substituted a new s.58A(6):
A costs order made in proceedings may not include provision requiring the payment by one party of all or part of a success fee payable by another party under a conditional fee agreement.
Section 44 of LASPO was brought into force on 1 st April 2013 by article 3(a) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 5 and Saving Provision) Order 2013. However Article 4 provided that article 3(a) did not apply to, inter alia, "publication and privacy proceedings". The effect of this is that the original wording of s.58A(6) continues to apply to publication and privacy proceedings and that a costs order made in such proceedings may make provision for the payment of fees under a conditional fee agreement, including success fees.
By article 1 of Commencement Order No. 5:
"publication and privacy proceedings" means proceedings for –
(a) defamation;
(b) malicious falsehood;
(c) breach of confidence involving publication to the general public;
(d) misuse of private information; or
(e) harassment, where the defendant is a news publisher.
"news publisher" means a person who publishes a newspaper, magazine or website containing news or information about or comment on current affairs;
Section 29 of the Access to Justice Act 1999 provided:
Where in any proceedings a costs order is made in favour of any party who has taken out an insurance policy against the risk of incurring a liability in those proceedings, the costs payable to him may, subject in the case of court proceedings to rules of court, include costs in respect of the premium of the policy.
Section 46(2) of LASPO revoked s.29 of the Access to Justice Act and s.46(1) inserted a new s.58C into the Courts and Legal Services Act 1990:
A costs order made in favour of a party to proceedings who has taken out a costs insurance policy may not include provision requiring the payment of an amount in respect of all or part of the premium of the policy, unless such provision is permitted by regulations under subsection (2).
Regulations made under subsection (2) can relate only to clinical negligence proceedings.
Section 46 of...
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