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Bulletins Story:
INDEMNITY COSTS AWARDED UNDER DEFAMATION PRE-ACTION PROTOCOL:
PARKER v NEWS GROUP
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Date:
10.03.2006
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In the bad old days libel claimants sometimes used to be faced
with a stubborn silence in response to a claim letter sent to a
newspaper. Given the almost inevitable disparity of resources
between the claimant and the defendant in those circumstances this
placed the claimant in the invidious position of having no idea
what (if any) defence would be deployed and what factual evidence
there was to support it. Since one of the purposes of the
Overriding Objective is "ensuring that parties are on an equal
footing" it is vital that such tactics be outlawed. Once the
pre-action protocols were established by the Civil Procedure Rules
(CPR) it was therefore essential that they be enforced by the
courts, especially where defamation actions are concerned.
In a libel action against the Sun conducted by Swan Turton on
behalf of the ex-Eastenders star Chris Parker, Master Rose was
asked to rule that the defendant newspaper had breached the
pre-action protocol and thereby had caused costs to be incurred,
and that those costs should be paid by the defendant on an
indemnity basis. The application followed a consent order
which settled the action providing for payment by the newspaper of
£50,000 and the claimant's costs on the standard basis.
(Costs recovered on the standard basis are lower than those
recovered on an indemnity basis.)
CPR Part C1-002 provides that the court will expect the parties
to comply with the substance of the approved protocol.
Sub-paragraph 2.1 says that the CPR enables the court to take into
account "compliance or non-compliance with an applicable
protocol when ... making orders for costs". This paragraph
refers specifically to CPR Part 44.3(5)(a) which states that in
exercising its discretion on the issue of costs the court will take
into account "conduct before, as well as during the
proceedings, and in particular the extent to which the parties
followed their relevant pre-action protocol".
Sub-paragraph 2.3 of CPR Part C1-002 provides that when
non-compliance with the protocol "has led to the commencement
of proceedings which might otherwise not have needed to have been
commenced, or has led to costs being incurred in the proceedings
which might otherwise have not been incurred", the court may
order "that the party at fault pay those costs on an indemnity
basis". Sub-paragraph 3.4 provides that the "court is
likely to look at the effect of non-compliance on the other party
when deciding whether to impose the sanctions".
In his judgment Master Rose criticised the newspaper for having
breached the pre-action protocol, for which no justification or
explanation had been offered. He considered its actions
sufficiently "out of the norm" to order that it pay the claimant's
costs on an indemnity basis up to and including the date of service
of the defence. Such flagrant breaches of the protocol are
fortunately rare nowadays. However, this judgment shows that they
will attract the court's sanction and that the threatened
consequences of breaches of the protocol as set out in the CPR will
actually be applied.
Jonathan Coad
Defamation & Privacy
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