England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Mr Justice Eady)

		Royal Courts of Justice Strand London WC2 Monday, 4th February 2002

Monday, 4th February 2002

1. LORD JUSTICE TUCKEY: This is a renewed application for permission to appeal by the claimant in these libel proceedings from an order for costs made by Eady J. The claim, which was based on a letter sent by the defendant to the Commissioning Editor of Channel 4 in 1998, was first heard in 2000 by Morland J and a jury. Unfortunately, the jury disagreed. The claimant then decided to discontinue the proceedings and gave notice to that effect a month before the date fixed for the retrial in October 2001.
2. Before Eady J the claimant contended through Mr Riza QC, who appears for him today, that there should be no order for costs for a number of reasons, some of which form the subject of the proposed appeal. Eady J decided that the claimant should pay the defendant's costs of the proceedings on an indemnity basis.
3. Mr Riza raises two main points which he says the judge got wrong and which raise issues of principle suitable for consideration by this court. The first of those is that the defendant chose jury trial. It was this choice which resulted in the first trial being inconclusive, and so, Mr Riza submitted (and submits), the applicant should not have to pay for it.
4. The judge's starting point was CPR 38.6, which says:

"Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom he discontinues incurred on or before the date on which notice of discontinuance was served on him."

5. After referring to the decision of this court in Camiller v The Commissioner of Police for the Metropolis (unreported) 14th May 1999, the judge said:

"That general guidance [and he is referring to a passage from Brooke LJ's judgment], to my mind, confirms my own understanding of the situation, namely that the court approaches a hung jury on the basis that it is nobody's fault and it is one of the unfortunate risks inherent in that mode of trial."

6. Later in his judgment he referred to a party's right, which some have described as a constitutional right, to jury trial in libel cases now enshrined in section 69 of the Supreme Court Act, and said:

"... if it became a regular practice to make unfavourable orders in respect of costs against a party who had chosen jury trial, the effect would be to inhibit persons from taking up what Parliament has hitherto intended should be a prima facie right to jury trial and judges should be very careful before sending out any discouraging message of that kind."

7. Here Mr Riza says the judge fell into error. He was not taking away the defendant's right, but simply being asked to reflect the consequence of exercising that right after the event.
8. The second main point, which is related to the first, is that at the trial before Morland J, when the parties learned that the jury could not agree on the statutory majority required by section 17(1) of the Juries Act 1974, the defendant said that he would not accept a verdict by a bare majority, although the applicant was prepared to accept such a verdict. That factor, Mr Riza submitted (and submits), should also have persuaded the judge to make no order for costs. It was open to the parties to agree on a bare majority verdict, but Eady J in dealing with this point said:

"It seems to me also that it would not be appropriate for me to penalise this defendant for not having agreed to take a smaller majority than contemplated by the statute."

9. Of that, again Mr Riza makes much the same point as he does about the first, which is to say that the judge bound himself too closely to the defendant's statutory right which should not have led him to the conclusion which he reached.
10. On both I agree with the judge's general remarks. But of more importance for the purpose of this application is the fact that the judge had made it perfectly clear that neither point, or any of the other points raised by Mr Riza, drove him inexorably to the conclusion which he reached. He made that clear by saying:

"I have no doubt that all the circumstances of the case, including such matters as Mr Riza relies upon, can be taken into account and given such weight as the court thinks fit, as and when it comes to exercise its very broad discretion under section 51 of the Supreme Court Act 1981."

11. There is no indication from his judgment that he did not follow this guidance.
12. This underlines what has often been said, which is that there is only one rule about costs and that is that there are no absolute rules. The points taken by Mr Riza went to the judge's discretion. He took them into account. They do not raise issues of principle for this court.
13. There is a further point which Mr Riza also identifies as an issue of principle, and that is his suggestion that the judge should have decided why it was that the applicant discontinued the proceedings. It was, as Mr Riza submits, only if the judge were to conclude that the applicant had conceded defeat or that the discontinuance was tantamount to an acknowledgement of defeat that he could have followed the ordinary rule, which he identified. I do not accept this submission. It seems to me that, where an applicant discontinues, it is not for the judge to enquire into his reasons for doing so. The fact of discontinuance speaks for itself and whether one characterises it as an acknowledgement of defeat, a loss of will to go on, or whatever else, the plain fact is that the applicant in this case had decided not to pursue the proceedings further.
14. Mr Riza takes a number of general points under the CPR: that discontinuance in this case was proportionate to the overriding objective, including the saving of court time, and that it was wrong to penalise the applicant, particularly as Morland J had encouraged the parties to settle after the jury had disagreed. I do not think those points take the applicant very far. Such points are points which could be taken in any case where a party discontinues.
15. It is then submitted that the judge's comment that the fact that the defendant's legal team were on a conditional fee agreement had no bearing on his decision was incorrect. It did have a bearing, Mr Riza submits upon the judge's decision. I agree that it did in a practical sense because the order meant that defendant's legal team became entitled to be paid. But all the judge meant was that it did not alter his view as to what was the right order to make and that was plainly correct.
16. Mr Riza also says that the judge's order was in breach of Article 6 of the European Convention on Human Rights. He says the right of access to the courts includes the right to discontinue, and in this case the court has failed to determine the applicant's rights, so he should not be penalised as a result. I remain as unimpressed by this argument as I was when I refused leave on paper. A claimant has a right to discontinue. If he chooses to do so, there is nothing unfair about requiring him to pay the costs which the successful defendant has incurred. Trial by jury does not offend Article 6. One of its consequences is that a jury may not be able to agree.
17. Finally, Mr Riza attacks the judge's conclusion to award indemnity costs. Unfortunately, the court does not have a transcript of the discussions which led to, and the judge's reasons for making, that order. Mr Riza's argument is that the effect of such an order was to produce a disproportionate result. He says that it has made the applicant liable for up to £90,000, and that is a disproportionate order in the context of a dispute about one letter which has led to these protracted proceedings. I refer to CPR 44.4, which says:

"(1) Where the court is to assess the amounts of costs (whether by summary or detailed assessment) it will assess those costs-

(a) ...

(b) on the indemnity basis,

but the court will not ... allow costs which have been unreasonably incurred or are unreasonable in amount."

18. So there is that saving written into the order which the judge made.
19. The fact is that the costs of this dispute, whether on a standard or an indemnity basis, would to many eyes seem entirely disproportionate. I do not see that the difference between standard and indemnity costs makes any significant difference in that respect. It was clearly within the judge's discretion to award indemnity costs. No reasons have been put before the court which persuade me that the judge exercised his discretion in such a way that this court should interfere.
20. For those reasons, ably though the arguments have been put by Mr Riza on behalf of the applicant, this renewed application for permission must be refused.
Order: Application dismissed.