England and Wales High Court (Senior Courts Costs Office) Decisions

IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE

		Royal Courts of Justice Strand, London, WC1A 2LL
		02/02/2017

Master Gordon-Saker :

The background8

1. The Claimants married in 2010. The First Claimant is a model and the Second Claimant is a comic entertainer. They separated in January 2015 when the First Claimant and their son left the family home. The separation became public knowledge as the result of an article in The Sun newspaper on 4^th March 2015. It is not in issue that on the same day an incident took place outside the family home. The Claimants alleged that a group of 20 to 30 photographers ran at the Second Claimant in the street, taking photographs and shouting questions. The Claimants believed that one of the photographers, who was not identified, had been sent by the Second Defendant, a picture agency. Photographs taken during the incident were published in The Sun and its associated website, MailOnline, the Daily Star and Now! magazine.
2. On 12^th March 2015 the Claimants commenced proceedings in the Queen's Bench Division claiming an injunction pursuant to s.3 Protection from Harassment Act 1997. The other defendants to the claim were two photographers, who were said also to have been part of the group, and the publishers of the newspapers, magazine and websites which had published the photographs.
3. By paragraph 3 of the Particulars of Claim the Claimants described the Second Defendant as:

… a photographic agency. It arranges for photographs to be taken of persons of interest to the media when they are going about their daily lives. Furthermore it buys or licenses or helps third parties buy or license such photographs from photographers which it then sells to newspapers and magazines.

4. By its Defence the Second Defendant denied paragraph 3 of the Particulars of Claim save that it admitted that:

3.1 The Second Defendant's principal business is in selling and licensing photographs. Around 75% of this work is arranged with PR agencies and celebrity agents. The latter regularly inform the Second Defendant of where a celebrity will be or where an event is taking place, with the intention that the Second Defendant sends one or more photographers to attend and take photographs.

3.2 The Second Defendant will react to major news stories by sending photographers to locations where it believes newsworthy photographs may be taken, but when doing so it does not follow individuals or place them under surveillance.

3.3 …

3.4 The Second Defendant's photographers do not attempt to ask questions or otherwise obtain information from the subject of their photographs. They are solely there to take photographs.

3.5 The Second Defendant also works with investigative journalists: projects on which the Second Defendant has worked include those relating to illegal immigrants, the London riots and benefit fraud.

3.6 The Second Defendant does not "buy" photographs. It does, in appropriate circumstances, assist freelance photographers in selling their own photographs.

3.7 In addition to the photography work the Second Defendant also provides video content, including live broadcasts, to a variety of clients including Yahoo! and other major US websites.

5. The Second Defendant admitted that it had sent 2 photographers to take photographs outside the Claimants' family home on 4^th March 2015, but contended that those photographers did not move any closer to the Second Claimant than about 20 metres and did not behave aggressively or shout.
6. In paragraph 20 of his witness statement dated 22^nd May 2015 My Hayward, a director of the Second Defendant, explained that the photographs taken of the Second Claimant by its photographers were sent to media outlets that were covering the story. Two of the photographs were published by the Mail Online under a subscription arrangement.
7. The claim was concluded by a Tomlin order dated 6^th November 2015 on terms set out in a confidential schedule. Pursuant to that order the Second Defendant is entitled to its costs of the claim, with those costs incurred after 11th May 2015 to be assessed on the indemnity basis. Paragraph 2 of that order provides that:

The court, whether at a detailed assessment or otherwise, shall determine whether the Claimants ought to pay the Second Defendant a success fee and an amount regarding the cost of its insurance policy.

8. The Second Defendant instructed Kingsley Napley under a conditional fee agreement dated 10^th June 2015 which provided for a success fee of 75 per cent and purchased an after the event insurance policy issued on 5^th June 2015 for a premium of £10,600 including insurance premium tax. The Second Defendant seeks to recover both the success fee and the premium from the Claimants.
9. The parties have agreed all of the issues on the assessment with the exception of whether the Second Defendant may recover additional liabilities. This judgment gives the reasons for my decision on that issue.

The legislation

10. Section 58A(6) of the Courts and Legal Services Act 1990, as inserted by s.27 Access to Justice Act 1999, provided that:

A costs order made in any proceedings may, subject in the case of court proceedings to rules of court, include provision requiring the payment of any fees payable under a conditional fee agreement (including one which provides for a success fee).

11. Section 44 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 substituted a new s.58A(6):

A costs order made in proceedings may not include provision requiring the payment by one party of all or part of a success fee payable by another party under a conditional fee agreement.

12. Section 44 of LASPO was brought into force on 1^st April 2013 by article 3(a) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 5 and Saving Provision) Order 2013. However Article 4 provided that article 3(a) did not apply to, inter alia, "publication and privacy proceedings". The effect of this is that the original wording of s.58A(6) continues to apply to publication and privacy proceedings and that a costs order made in such proceedings may make provision for the payment of fees under a conditional fee agreement, including success fees.
13. By article 1 of Commencement Order No. 5:

"publication and privacy proceedings" means proceedings for – (a) defamation;

(b) malicious falsehood;

(c) breach of confidence involving publication to the general public;

(d) misuse of private information; or

(e) harassment, where the defendant is a news publisher.

"news publisher" means a person who publishes a newspaper, magazine or website containing news or information about or comment on current affairs;

14. Section 29 of the Access to Justice Act 1999 provided:

Where in any proceedings a costs order is made in favour of any party who has taken out an insurance policy against the risk of incurring a liability in those proceedings, the costs payable to him may, subject in the case of court proceedings to rules of court, include costs in respect of the premium of the policy.

15. Section 46(2) of LASPO revoked s.29 of the Access to Justice Act and s.46(1) inserted a new s.58C into the Courts and Legal Services Act 1990:

A costs order made in favour of a party to proceedings who has taken out a costs insurance policy may not include provision requiring the payment of an amount in respect of all or part of the premium of the policy, unless such provision is permitted by regulations under subsection (2).

16. Regulations made under subsection (2) can relate only to clinical negligence proceedings.
17. Section 46 of LASPO was brought into force on 1^st April 2013 by article 3(c) of Commencement Order No. 5 which, by article 4, does not apply to publication and privacy proceedings. The effect of this is that s.29 of the Access to Justice Act has not been revoked in relation to such proceedings and that, in such proceedings, costs payable under a costs order may include the premium of an after the event insurance policy.
18. CPR 48.1 preserves, in relation to pre-commencement funding arrangements, the provisions of CPR Parts 43 to 48 relating to funding arrangements, together with the attendant provisions of the Costs Practice Direction, as they were in force immediately before 1^st April 2013. A pre-commencement funding arrangement includes, in relation to publication and privacy proceedings, an arrangement made before the date on which sections 44 and 46 of LASPO came into force in relation to such proceedings. CPR 48.2 contains similar definitions of "publication and privacy proceedings" and "news publisher" to those set out in Commencement Order No.5.

The issue

19. It is not in issue that these proceedings were for harassment. What is in issue is whether these proceedings were for harassment where the defendant was a news publisher.

The evidence

20. An order made by the court of its own initiative on 7^th July 2016 provided for the parties to file evidence on the issue and a further order made by consent on 1^st December 2016 enabled the Second Defendant to serve a further witness statement by Mr Danny Hayward and to call him to give oral evidence at the hearing. In the event Mr Hayward was not called to give evidence and the hearing proceeded on the basis of the witness statements which had been filed.
21. In his third statement, dated 26^th August 2016, Mr Hayward describes the Second Defendant as "a global media agency and publishing platform", the principal business of which is "licensing and selling photographs". The other aspects of the business are journalism, drone services, videos, online content and media representation. Direct publication is via the company's website, FameFlynet, and its YouTube channel. The examples of the material published directly referred to by Mr Hayward are photographs of the Duke and Duchess of Cambridge and of Mr and Mrs George Clooney on the website and a music video featuring One Direction on the YouTube channel. Mr Hayward also gives examples of media representation and journalism undertaken by the Second Defendant at paragraphs 15 to 17 of his statement. Media representation had been provided to one of the survivors of the Dunblane massacre in relation to a television interview. Work by one of the company's journalists included comments on violence during the UEFA European Championship 2016 on Russia Today and comments about safety at the Stade Velodrome published by the Sun Online.
22. The evidence on this issue on behalf of the Claimants is set out in the first witness statement of Mr Double, their solicitor, dated 28^th September 2016. He explained the process by which videos are published on YouTube, that videos can be uploaded by anybody, and pointed to the Terms of Service under which YouTube retains control over what is published.
23. The gist of paragraphs 19 to 24 of Mr Double's statement is that the Second Defendant's YouTube channel was dormant until the claim was issued. 98 videos had been uploaded over 3 years and none in the 3 months before the claim was issued. On the day before the Second Defendant purchased the ATE policy, 206 videos were uploaded to its YouTube channel.
24. At paragraph 26 Mr Double contends that only 5 of the 98 videos uploaded before the issue of the claim could be said to relate to current affairs. The majority of the videos related to "trivial matters concerning celebrities".
25. In relation to the Second Defendant's website Mr Double submitted that the photographs appeared to be old and there was no real evidence of a focus on current affairs. The examples given by Mr Hayward of media representation and journalism post-dated the conclusion of the proceedings but in any event, he submitted, were not evidence of publication by the Second Defendant.
26. In his fourth statement, dated 1^st December 2016, Mr Hayward denied that anything had been done to alter the status of the Second Defendant with a view to recovering the additional liabilities.

Are these proceedings for harassment where the defendant is a news publisher?

27. On behalf of the Claimants Mr Bennett submitted that for proceedings for harassment to fall within the definition of "publication and privacy proceedings" the defendant must be sued in connection with its role as a news publisher. In this case the Second Defendant would have to show that it was sued in connection with its role as a publisher of a website of the type specified. This followed from the use of the word "where" in "proceedings for … harassment, where the defendant is a news publisher". He submitted that if no nexus were required between the behaviour complained of and the publication of a qualifying website, a man who happened to publish a website concerned with current affairs could recover additional liabilities in proceedings for harassment brought by his former wife when the harassment had nothing to do with the website.
28. On behalf of the Second Defendant Mr Tyler accepted that there had to be a nexus between the alleged harassment and the defendant's status as a news publisher. However, he submitted, there does not have to be an actual publication for the alleged harassment to occur where the defendant is a news publisher.
29. It seems to me that to fall within the definition there must be a connection between the alleged harassment and the defendant's status as a news publisher. In carrying out the acts alleged the defendant must be acting in its capacity as a news publisher. That follows from the use of the word "where". Clearly it cannot have been the intention that proceedings arising from acts of harassment unconnected with the defendant's role as a news publisher would fall within the definition.
30. It is clear that the Second Defendant's intention in obtaining photographs of the Claimants was to provide them "to media outlets that were covering the story". That is the explanation given by Mr Hayward in paragraphs 14 and 20 of his witness statement dated 22^nd May 2015, two months after the incident of which complaint was made. There is nothing to suggest that the photographs were sought for publication on the Second Defendant's own website.
31. It seems to me that the acts complained of were carried out by the Second Defendant in its capacity as a picture agency and not in its capacity as a publisher of a website containing news or information about or comment on current affairs. Accordingly, these were not proceedings for harassment where the defendant is a news publisher and the Second Defendant cannot recover any additional liabilities from the Claimants.

Was the Second Defendant a news publisher?

32. I accept Mr Bennett's submission that, to fall within the definition, the defendant must be a news publisher at the time of the acts alleged to constitute harassment. Becoming a news publisher after those acts would obviously not be sufficient. Again, that is apparent from the use of the word "where". In case I am wrong on the question of nexus, the next question is therefore: Was the Second Defendant a news publisher on 4^th March 2015?
33. As there is no suggestion that the Second Defendant has ever published a newspaper or magazine, it could be a news publisher only if it published a website either (a) containing news or (b) containing information about or comment on current affairs.
34. Neither "news" nor "current affairs" are defined in the commencement order. Mr Bennett drew my attention to the definition of "news-related material" in s.42 of the Crime and Courts Act 2013, namely: "(a) news or information about current affairs, (b) opinion about matters relating to the news or current affairs, or (c) gossip about celebrities, other public figures or other persons in the news". That would seem to suggest that gossip about celebrities, etc., is neither news nor current affairs.
35. It is not in issue that at the material time the Second Defendant published the website: http://www.fameflynet.biz/uk. Copies of pages from that website are exhibited at DH3A and DH3B to Mr Hayward's third witness statement. Insofar as it is accessible to somebody who is not a subscriber, the website describes the work of the Second Defendant. There is also a ticker tape of rolling headlines across the top of the homepage. These are hyperlinks to twitter feeds. At the hearing Mr Hayward explained that subscribers could log in through the website to access the photographs which had been uploaded. It seems to me that none of this content amounts to "news or information about or comment on current affairs". The corporate content about the Second Defendant is not news or current affairs. Photographs may illustrate news or current affairs but are not, in themselves, news or comment on current affairs. Hyperlinks may lead to other websites which contain news or comment on current affairs but are not, in themselves news or comment on current affairs.
36. In my view the Second Defendant's YouTube channel is not itself a "website". The YouTube terms of service, exhibited to Mr Double's witness statement refer to "the YouTube website" and to "contributors of Content". On the face of it, it seems to me that YouTube is the publisher of the website on which the Second Defendant is merely a contributor of content. That the Second Defendant uploaded videos on to the YouTube website does not I think make it a publisher of the website; although it would be a publisher of the content that it had uploaded.
37. It also seems to me that stories about the comings and goings of celebrities are neither "news" nor "comment on current affairs". There is some content on the Second Defendant's YouTube channel which could properly be described as news or current affairs (that listed in paragraph 26 of Mr Double's witness statement) but the preponderance of the videos listed and referred to in the evidence can fairly be described as "celebrity tittle-tattle". The substance of the Second Defendant's YouTube channel is not news or current affairs, it is gossip about celebrities.
38. Accordingly, in my judgment the Second Defendant was not, at the material time, a news publisher.