The General Costs Rule In A Defamation Claim

CPR 44.2(2) confirms that the general rule regarding the making of a costs order is that the unsuccessful party will be ordered to pay the costs of the successful party. The Court does however have the discretion to make a different order. When deciding what order to make, the Court must have regard to all of the circumstances including the conduct of all the parties.

Khokan v Nirjhor [2024] EWHC 1873 (KB)

Background

The Defendant, in this case, was an investigative journalist who investigated and reported on corruption amongst Bangladeshi journalists and media organisations. The Claimant had previously served as the Prime Minister of the Bangladesh’s Deputy Press Secretary.

The Defendant published a video accusing the Claimant of many things including being the mastermind behind the killing of a journalist. This video was published on three separate social media platforms.

Following an application, the Claimant was ordered to pay the Defendant’s costs. The Claimant did not make the payment by the required date and thereafter the Defendant applied for an unless order. On 7 June 2024, an order was made requiring the Claimant to make the payment, failing which the claim would be struck out without further order. The Claimant did not make the payment and therefore, the claim was struck out.

In a hearing on 19 July 2024, Mrs Justice Hill DBE was tasked with dealing with the consequential matters arising out of the strike out of the claim, including costs liability and an application by the Defendant to vary his costs budget. In this blog, I have focused on the cost liability element of the judgment.

Unsurprisingly, it was the Defendant’s position that there was no good reason to depart from the general rule (set out above). The Claimant submitted that various aspects of the Defendant’s conduct warranted a departure from the general rule.

The claimant’s position

The Claimant relied on the following in support of his position:

Considering each of the above in turn. The Judge pointed out that had the Defendant instructed legal representation earlier, there likely would have been a substantive response to the letter of claim and this would have particularised the defences upon which the Defendant later relied upon. Whilst this was acknowledged by the Judge, she did not feel that the Defendant’s engagement with pre-action correspondence would have stopped the Claimant from pursuing the claim further. For example, the Defendant properly particularised his position within the Defence, but this did not deter the Claimant from continuing the claim. The Judge also noted that the Defendant had already been penalised for his pre-action conduct in relation to the costs of one of the earlier applications. It would therefore be unjust to penalise him again.

In relation to the engagement with the settlement, the Judge disagreed with the Claimant’s analysis. She noted that the Defendant had actually made a counter-offer and that there had been at least one settlement meeting. The Judge therefore felt that it was inaccurate to state that the Defendant had failed to engage in settlement discussions.

Shortly before the hearing, the Claimant filed a witness statement. Within this statement, the Claimant referred to a number of posts on social media that were said to have been posted by the Defendant. The Claimant submitted that these posts alone were reason to depart from the general rule. Counsel for the Defendant submitted that given the late filing of the statement, the legal representatives for the Defendant had not had an opportunity to verify the translations of the posts, nor had they had an opportunity to take instructions. The Judge agreed with the Defendant and determined that it would be inappropriate to make a determination on this point.

The decision

The Judge felt that the above conduct did not take the case “out of the norm” and therefore, was not persuaded to depart from the general rule. The Defendant submitted that the Claimant should pay his costs on an indemnity basis. The Judge recognised that the Claimant’s conduct throughout the case had already been penalised by way of indemnity costs in respect of the previous applications and therefore, she ordered the Claimant to pay the Defendant’s costs on the standard basis.

Comment

The principles set out in this judgment are nothing new in respect of determination of costs generally. It is however interesting to see them being applied in the context of a defamation claim.