Times Newspapers Ltd v Gary Flood
| Jurisdiction | England & Wales |
| Judge | Lady Justice Sharp,Sir Timothy Lloyd,Lady Justice Macur |
| Judgment Date | 04 December 2014 |
| Neutral Citation | [2014] EWCA Civ 1574 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 December 2014 |
| Docket Number | Case No: A2/2014/0120 |
[2014] EWCA Civ 1574
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
NICOLA DAVIES J
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Macur
Lady Justice Sharp
and
Sir Timothy Lloyd
Case No: A2/2014/0120
Richard Rampton QC and Kate Wilson (instructed by Times Newspapers Limited, Legal Department) for the Appellant
James Price QC and William Bennett (instructed by Edwin Coe) for the Respondent
Hearing date: 14 July 2014
Introduction
The claimant in this case, Mr Gary Flood, brought proceedings for libel against Times Newspapers Limited (TNL) in May 2007. Six years later, the claim came before Nicola Davies J in a trial for the assessment of damages. She awarded Mr Flood £60,000 in damages. There is no appeal against that determination. The issue that arises on this appeal relates to the costs order she then made. She ordered TNL to pay Mr Flood's costs of the action, including the costs of the trial of damages and the reserved costs of the trial of a preliminary issue before Tugendhat J in July and October 2009, which dealt with TNL's defence of Reynolds privilege.
There were no CPR part 36 offers made by either side and the judge therefore had a discretion as to costs, which fell to be exercised in accordance with CPR 44. This provides in part that:
(1) The court has discretion as to–
(a) whether costs are payable by one party to another;
(b) the amount of those costs; and
(c) when they are to be paid.
(2) If the court decides to make an order about costs–
(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but
(b) the court may make a different order.
…
(4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including –
(a) the conduct of all the parties;
(b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and
(c) any admissible offer to settle made by a party which is drawn to the court's attention, and which is not an offer to which costs consequences under Part 36 apply.
(5) The conduct of the parties includes –
(a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction – Pre-Action Conduct or any relevant pre-action protocol;
(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
(c) the manner in which a party has pursued or defended its case or a particular allegation or issue; and
(d) whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim.
(6) The orders which the court may make under this rule include an order that a party must pay –
(a) a proportion of another party's costs;
(b) a stated amount in respect of another party's costs;
(c) costs from or until a certain date only;
(d) costs incurred before proceedings have begun;
(e) costs relating to particular steps taken in the proceedings;
(f) costs relating only to a distinct part of the proceedings; and
(g) interest on costs from or until a certain date, including a date before judgment.
(7) Before the court considers making an order under paragraph (6)(f), it will consider whether it is practicable to make an order under paragraph (6)(a) or (c) instead.
…
The real contest between the parties on costs, both before the judge and before us, concerned the reserved costs on the issue of privilege and who should pay them.
TNL argued before the judge that Mr Flood had sued over the publication of the article in its print edition and online. Each separate publication gives rise to a separate cause of action. TNL's defence of Reynolds privilege succeeded in respect of most of the publications sued on; it should therefore have its costs of that issue which it had won.
The judge rejected that argument. She considered Mr Flood should be treated as the successful party in the litigation and that there was no reason to depart from the general rule, that he was entitled to the costs of the action. Her judgment is a careful and nuanced one. It was reached following an equally careful judgment on the assessment of damages, against which there is no appeal, and which considered in detail the history of the litigation, and TNL's conduct of it, a matter which was significant both in relation to damages and to the costs order the judge then made.
The issue for this court is whether the judge exceeded the wide ambit of discretion given to her on the issue of costs. In my judgment, she did not. She made no error of principle, and was entitled to exercise her discretion in the way that she did. I would therefore dismiss this appeal.
Overview
The case concerned an article written by Michael Gillard and published in The Times newspaper by TNL on 2 June 2006 entitled "Detective accused of taking bribes from Russian exiles." Its subtitle was "Police are investigating the alleged sale to a security company of intelligence on the Kremlin's attempts to extradite opponents of President Putin". At the time the article was published and until his retirement Mr Flood was a detective sergeant with the Metropolitan Police Extradition Unit. The article appeared in the print edition and on the Timesonline website. The article identified the officer under investigation as Mr Flood. The article is set out in a number of the reported judgments of this case, to which I shall refer, and it is not necessary to set it out again.
The Directorate of Professional Standards (the DPS) of the Metropolitan Police conducted an investigation into the allegations of corrupt practice said to have been committed by Mr Flood. The Senior Investigating Officer (from 28 April 2006) was DCI Crump. In the course of the investigation, search warrants were executed at Mr Flood's home, and from that date he was removed from the Extradition Unit until January 2007 when he returned to it.
The DPS made its report into these allegations (the Report) on 2 December 2006 though the Report was not made available to the parties until early September 2007. Its findings, the date they were provided to TNL, and what TNL did (or perhaps more accurately did not do) as a result, proved to be critical to the eventual outcome of the litigation. In short, the Report exonerated Mr Flood. Its conclusions were that the DPS had been: "unable to find any evidence to show [Mr Flood]… has divulged any confidential information for monies or otherwise. Consequently, there are no recommendations made as to criminal or discipline proceedings in relation to that matter." However, TNL did not report on the outcome of the investigation its article had called for, or update its online article for a further two years.
Proceedings for libel were begun on 31 May 2007 in relation to both the print and the online publications. Mr Flood claimed the words complained of meant there were strong grounds to believe, or alternatively that there were reasonable grounds to suspect that he had abused his position as a police officer with the MPS extradition unit by corruptly accepting £20,000 in bribes from some of Russia's most wanted suspected criminals in return for selling to them highly confidential Home Office and police intelligence about attempts to extradite them to Russia to face criminal charges, that he had thereby committed an appalling breach of duty and betrayal of trust and had thereby committed a very serious criminal offence.
TNL relied on two substantive defences in relation to both the print and online publications: public interest ( Reynolds) privilege and justification. The meaning which TNL sought to justify was a lower meaning than that complained of by Mr Flood. It was that: "the claimant was the subject of an internal police investigation and that there were grounds which objectively justified a police investigation into whether the claimant received payments in return for passing confidential information about Russia's possible plans to extradite Russian oligarchs."
In its privilege defence, TNL drew no distinction between the print and online publications. Its defence was that publication was in the public interest, and its journalists acted responsibly in composing and publishing the article. In his Amended Reply, Mr Flood did not distinguish between the print and the online publications either. But he alleged in relation to the website publications that the circumstances had changed as time passed, further information came to TNL and there was no continuing public interest in the website publications.
On 2 June 2009, Eady J ordered, on TNL's application, that the privilege defence should to be tried as a preliminary issue, and the trial of that issue took place before Tugendhat J between 15 and 20 July 2009. In a judgment handed down on 16 October 2009, Tugendhat J held the privilege defence was successful for the print edition and the online publications up to 5 September 2007; but the defence was unsuccessful for the online publications made after that: see [2009] EWHC 2375 (QB).
The judge's headline findings on privilege were that the publication on the 2 June 2006 was a proportionate interference with Mr Flood's right to reputation given the legitimate aim in pursuit of which publication was made. The story was about a police investigation into an allegation that an officer in the extradition unit had been corrupted by a former police...
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