Case No: QB-2019-002507
In the Court of Appeal
On appeal from King’s Bench Division
17 May 2023
Dame Victoria Sharp, The President of the King’s Bench Division
Lord Justice Singh
Lord Justice Warby
Upon the court having
(1) by order dated 28 February 2023, allowed the Claimant’s appeal against the dismissal of his claim for libel in respect of the TED Talk, entered judgment in his favour for damages to be assessed, and adjourned the question of other remedies and all other consequential matters;
(2) by order dated 14 March 2023, directed that all further proceedings in this action be stayed until 25 April 2023 to allow the parties to seek to resolve the outstanding issues (including costs) by mediation;
(3) on 25 April 2023 received a written report and written representations as to the outcome of such mediation; and
(4) by a consent order dated 28 April 2023, accepted an undertaking from the Defendant not to repeat words bearing the meaning that Saini J found the TED Talk to bear, ordered the Defendant to pay the Claimant damages in the sum of £35,000, and directed that the court would assess, on the papers, costs before the Court of Appeal and before the High Court
And upon considering the parties’ written applications in respect of costs and the written submissions served by the parties pursuant to the orders dated 28 February 2023 and 28 April 2023
It is ordered that
1. Paragraphs 1 and 2 of the costs order dated 28 June 2022 (“the High Court Costs Order”) are set aside.
Allocation of costs
2. The Defendant must pay the Claimant
2.1. 60% of his costs in the High Court
2.2. the full amount of the payment on account of costs which the Claimant made to the Defendant pursuant to the High Court Costs Order and
2.3. one third of his costs before the Court of Appeal.
Quantification of costs
3. The costs payable under paragraph 2.1 above shall be subject to detailed assessment on the standard basis if not agreed. Pending agreement or assessment the Defendant must pay the Claimant £400,000 by way of a payment on account of those costs.
4. The sum payable under paragraph 2.2 above is £790,634.
5. The costs payable under paragraph 2.3 above are summarily assessed in the sum of £52,000 (including VAT)
6. The Defendant must pay the Claimant interest
6.1. on the sum payable under paragraph 2.1 above from the date that costs were paid by the Claimant to the date of this order
6.2. on the sum payable under paragraph 2.2 above from the date of payment by the Claimant to the date of repayment by the Defendant.
7. Interest shall be calculated at 2% per annum above the Bank of England base rate from time to time.
Time for payment
8. Unless otherwise ordered all the sums payable under the above paragraphs must be paid by no later than 31 May 2023.
9. The Defendant has liberty to apply for further time to pay. Any such application must be made by way of an application notice with evidence in support and unless the court on application orders otherwise it will be determined without a hearing.
1. The Claimant was the successful party on the appeal and overall. He has established that the Defendant was responsible for the unlawful publication to 100,000 or more people in this jurisdiction of a serious imputation, which caused serious harm to the Claimant’s reputation, which the Defendant accepts was not true, and which (as she also accepted on appeal) was no longer defensible in the public interest. He has established a right to substantial compensation, now agreed in the sum of £35,000. He has also secured an apology, an acknowledgment of the falsity of the meaning complained of, the amendment of the TED Talk, an undertaking not to repeat the allegation complained of, and the removal of some Tweets. There is therefore considerable force in the argument that we should simply apply the general rule in CPR 44.2(2)(a), that the unsuccessful party should pay the costs of the successful party.
2. The Claimant has however lost on some discrete issues of substance which in our judgment makes it just to depart from the general rule to some extent. In the High Court, he lost on the issue which absorbed most of the time and money, namely whether it was ever reasonable for the defendant to believe it was in the public interest to say what she did. In the Court of Appeal he made an unsuccessful application to stay the interim payment ordered by the judge and to freeze the funds raised by the Defendant. More significantly, he lost on his Ground 1, which was a point of law that took up most of the time and must have absorbed most of the money. And although the costs of the claim and appeal in respect of the Tweet would be comparatively modest, the Claimant also failed in that part of his claim and in his appeal against the judge’s decision on that issue. It is just for these factors to influence the order we make as to costs.
3. All that said, an entirely issue-based costs order, or one based on the sums spent on each issue, would not give proper weight to the Claimant’s overall success in establishing liability. Nor would it do full justice to the overall merits of the positions adopted by the parties. The Claimant’s arguments on the points on which he failed were not unreasonable. On the other hand, the Defendant’s persistence in her defence of the second phase of publication of the TED Talk was highly optimistic. The Defendant’s case that this phase of publication was in the public interest was weak for the reasons given by the judge below (and not challenged by the Defendant on this appeal). Her case that this phase of publication did not cause serious harm to the claimant’s reputation was, on analysis, unsustainable for the reasons given in our judgment. Our order as to how the costs of the High Court proceedings and the appeal should be allocated between the parties is intended to strike a proper and just balance between these considerations.
4. It follows from our conclusions on allocation that the Defendant must repay the sum of nearly £800,000 that the Claimant was ordered to pay her on account of her costs of the proceedings in the High Court.
5. As for the amount of costs, we have assessed the costs of the appeal on the basis that the sums in the Claimant’s costs statement are reasonable and proportionate overall. Our order for an interim payment in respect of the Claimant’s costs in the High Court takes account of the scale of the payment that was ordered the other way below; but we also factor in the likelihood, as we see it, that the reasonable costs of running the defence case are likely to have been much higher than the Claimant’s reasonable costs of responding to that case.
6. Our orders as to interest give effect to standard practice, adopting a mid-point for interest to reflect the position of this particular Claimant, which (as he acknowledges) is somewhere between a large commercial enterprise and an SME.
7. Before finalising our conclusions on these issues we have considered the points made on behalf of the Defendant about the relevance of free speech considerations and the potential chilling effect of large costs orders. In our view, our allocation of costs fairly reflects the Defendant’s partial success in defending publication of the TED Talk in phase one and the Tweet. Having regard to the evidence before us about the status and means of the Defendant and the way she has funded this litigation we see no need to depart from the orders we would otherwise have made.