Shakir Ali v Channel 5 Broadcast Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Arnold |
| Judgment Date | 19 April 2018 |
| Neutral Citation | [2018] EWHC 840 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC-2016-002012 |
| Date | 19 April 2018 |
[2018] EWHC 840 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
BUSINESS LIST (CHANCERY DIVISION)
Rolls Building
Fetter Lane, London, EC4A 1NL
Mr Justice Arnold
Case No: HC-2016-002012
William Bennett and Felicity McMahon (instructed by Hamlins LLP) for the Claimants
Tom Blackburn (instructed by Lee & Thompson LLP) for the Defendant
Hearing date: 10 April 2018
Introduction
On 22 February 2018 I gave judgment in favour of the Claimants on their claim against the Defendant (“Channel 5”) for misuse of private information and awarded them damages of £10,000 each ( [2018] EWHC 298 (Ch)). I must now resolve a somewhat complex dispute as to the costs of the proceedings.
The relevant correspondence and procedural steps
On 17 February 2016 the Claimants' solicitors, Hamlins, sent Channel 5 a letter of claim in which the Claimants sought: (i) an undertaking to remove the Programme from any website; (ii) an undertaking not to publish the Programme in future; (iii) compensatory damages (the quantum of which to be agreed); (iv) an apology (the wording of which to be agreed); and (v) the Claimants' legal costs.
On 29 February 2016 Channel 5 replied, contending that, in so far as the Claimants had any Article 8 rights, they were outweighed by Channel 5's Article 10 rights, and relying upon the three OFCOM decisions in Channel 5's favour. The letter concluded:
“Should your clients desire it, Channel 5 is prepared to enter into an alternative dispute resolution procedure should that appear advantageous.”
On 10 June 2016 Hamlins wrote to Channel 5 to put it on notice that Hamlins and counsel had agreed to represent the Claimants under a Conditional Fee Agreement (“CFA”). Having noted that Channel 5's response to the letter of claim indicated an intention robustly to defend the claim, the letter went on:
“In these circumstances, with fundamental issues of law and regulation in dispute, we do not consider ADR would be productive or appropriate at this stage in proceedings but our clients will be prepared to keep under review the option of ADR once these substantive issues of law and regulation have been addressed further.”
On 14 June 2016 Channel 5 replied, saying among other things:
“Your clients' claim for injunctive relief to prevent further broadcasts is perfectly suitable for Alternative Dispute Resolution and there is no reason for that possibility not to be properly pursued, especially in view of the Pre-action Protocol.”
On 30 June 2016 the claim form was issued.
On 3 August 2016 Hamlins replied to Channel 5's letter of 14 June 2016. Having noted that Channel 5 had raised a number of issues and that the Programme had been broadcast again on 27 July 2016, the letter went on:
“These circumstances do not appear conducive to ADR, particularly at a point where there [is] no acceptance of wrongdoing on your part. However, we remain fully prepared to engage with ADR at a suitable time and invite proposals for the same.”
There was no response from Channel 5 to the invitation to make proposals for ADR.
On 26 August 2016 the claim form was served, together with a Notice of Funding confirming that both Hamlins and counsel were acting under a CFA which provided for a success fee.
At some point the Court sent the parties a Notice of Proposed Allocation to the Multi-Track requiring various documents, including costs budgets, to be filed by 2 December 2016. On 2 December 2016 Hamlins filed and served the Claimants' cost budget. Channel 5 did not file or serve a costs budget. On 6 December 2016 Hamlins drew Channel 5's attention to CPR rule 3.14.
On 19 May 2017 an order for directions was made by consent providing for disclosure to take place on 30 June 2017 and witness statements to be exchanged on 4 August 2017 and for there to be a costs management hearing at a date to be fixed.
Following a request by Channel 5 for an extension, on 30 June 2017 an order was made by consent extending the time for disclosure to 11 August 2017 and the date for exchange of witness statements to 6 October 2017.
Disclosure took place on 11 August 2017.
On 19 September 2017 Hamlins wrote to Channel 5's then solicitors, Wiggin, contending that there were significant omissions from Channel 5's disclosure and seeking further disclosure, in particular of documents showing how many times the Programme had been broadcast and the viewing figures and how many times the Programme had been viewed online.
On 25 September 2017 Wiggin wrote to Hamlins saying that they were considering the requests in the letter dated 19 September 2017 and proposing that exchange of witness statements be postponed to 3 November 2017.
On 27 September 2017 Wiggin sent Hamlins a letter headed “Without prejudice save as to costs” and “Offer pursuant to Part 36 of the Civil Procedure Rules” which stated:
“Our client is confident of success at trial. However, it is conscious that it will be difficult to recover a substantial part of its costs from your clients. Therefore, on a commercial basis only, strictly without any admission of liability and solely to bring about a settlement at this juncture, we have been instructed to put forward the following defendant's offer to settle pursuant to Part 36 of the Civil Procedure Rules.
This offer is a defendant's offer to settle the whole of the claim against it by both of your clients in the abovementioned proceedings in the Chancery Division of the High Court, with claim number HC-2016–002012, on a full and final basis on the following terms:
• Our client will pay your clients jointly the sum of £[X] (including interest) (the Settlement Sum);
• Our client will make this payment within 14 days of receipt of notice of acceptance;
• The Settlement Sum is inclusive of interest until the Relevant Period (defined below) has expired;
• The Settlement Sum does not include liability for costs.
Pursuant to Part 36, our client will be liable for your clients' costs in accordance with CPR 36.13 if the offer is accepted within 21 days (Relevant Period).
If your clients do not accept this offer, and fail to do better than this offer at trial, our client intends to rely on CPR 36.17. In other words, our client will be seeking an order that your clients pay our client its costs from the date when the Relevant Period expires and interest on those costs.
This offer is intended to have the consequences of section 1 of Part 36 of the Civil Procedure Rules. If you think that this offer is defective or non-compliant with Part 36, you must let us know promptly.”
I have omitted the amount which was offered because I have given the Claimants permission to appeal on quantum and having regard to CPR rule 52.22(1), but it was larger than the total amount which I awarded the Claimants.
Later the same day Wiggin sent Hamlins an email referring to the Part 36 offer and saying:
“My clients are content to rely on this offer through trial if it is not accepted. However, I can advise that there remains some commercial advantage to my client to have the matter settled this week. … My clients are willing to consider providing your client with a letter apologising for any distress caused to your client, for example by virtue of showing him in his nightwear, provided that terms can be agreed.”
On 2 October 2017 Channel 5 issued an application seeking an extension of time for exchange of witness statements until 3 November 2017. On 4 October 2017 the Claimants consented to this, and on 6 October 2017 a consent order was made.
On 10 October 2017 Channel 5 instructed Lee & Thompson in place of Wiggin.
On 12 October 2017 Hamlins wrote without prejudice save as to costs to Lee & Thompson referring to the Part 36 offer sent by Wiggin on 27 September 2017. The letter noted that the offer contained only monetary terms, and continued:
“… in the light of the extent of the broadcast of the programme complained of, our clients require a public apology. Our clients also repeat their request made at the outset that your client undertakes not further to repeat broadcast of the programme complained of.”
The letter went on to say that, absent the further disclosure which the Claimants had requested, they were “not presently in a position properly to assess the appropriate level of damages reflecting the extent of broadcast”. It also noted Channel 5's request for an extension of time for exchange of witness statements. The letter concluded:
“In all the circumstances, we look forward to prompt disclosure of all further documentation and exchange of Witness Statements, at which stage our clients should be placed in a better position to assess their claim with a view to being able to engage in settlement discussions.”
On 17 October 2017 Lee & Thompson replied without prejudice save as to costs to Hamlins' letter dated 12 October 2017 saying:
“1. The non-monetary relief set out in your letter is not available to your clients. No Court can or will order an apology, nor is one sought in the Prayer for Relief. That Prayer does seeks an injunction to restrain further broadcasting of ‘the information complained of or of any similar information’. That does not extend to the undertaking you seek in your letter, which again will not be ordered by the Court. Even if your clients succeed in their claim and persuade the Court to exercise its discretion to order an injunction, the footage could still be broadcast in anonymised / blurred form.
2. Without prejudice to the above, we have instructions from our clients to confirm that in addition to the monetary relief currently on offer, they would be prepared to undertake not to broadcast again the segment of the programme that...
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