The High Court has rejected jailed publicist Max Clifford’s attempt to limit his costs to only £5,000 in a privacy claim by making an “inadequate” Calderbank offer.
Richard Spearman QC, sitting as a deputy judge of the High Court, said it was “absolutely inevitable” that when the offer was made by lawyers for Mr Clifford that costs were “well in excess” of £5,000.
Deputy Judge Spearman awarded former royal butler Paul Burrell £5,000 in damages following a trial earlier this year, but, under costs budgeting, his costs were fixed at almost £129,000, and the defendant’s at just over £90,000.
The judge said that, at the time the Calderbank offer was made in January this year, the claimant law firm’s base costs were £9,800, its counsel’s fees £12,300, with an ATE premium of £13,500, not to mention the conditional fee uplift or cost of the claim form.
Judge Spearman said Mr Clifford’s offer was “inadequate” and “did not give the defendant protection”.
He went on: “To my mind, somebody making an offer of this sort who includes an offer for the costs to date has all the protection they could reasonably expect by reason of the assessment regime which will have regard to reasonableness of costs and proportionality.”
Delivering judgment in Burrell v Clifford  EWHC 578 (Ch) , Judge Spearman said Mr Burrell argued that costs should be awarded in his favour on the basis that he has succeeded in his claim.
He said that although Mr Burrell had put forward “greater value claims” in front of himself and Mr Justice Mann, “the fact is his claim had a value and he succeeded on it, and it could have been met by protection by Mr Clifford by an appropriate part 36 offer”.
Describing the claim as “one that the claimant was entitled to bring”, Judge Spearman said the possibility of transferring the case to the county court was rejected by Mann J on the basis that this was a “developing area of law” and claims for misuse of private information belonged in the High Court, “regardless of the fact that they may have a modest value”.
Judge Spearman said that although he was “very sympathetic” to a number of points made by counsel for Mr Clifford, “where somebody has a proper claim with a good foundation and they bring it in the proper court, it is not in my judgment reasonable that one should end up by saying: ‘Well, the value is very low compared to the costs, and therefore either you shouldn’t have your costs, or you should have to pay the defendant’s costs, or you should have a radical reduction in the proportion of your costs recoverable because of the disparity between the value of the claim and the costs’.”
He said the question of reasonableness and proportionality was “dealt with by the costs budgeting and costs assessment exercises.” He ruled that Mr Burrell was entitled to his costs.
Mann J rejected an application last autumn  to strike out the claim on the basis that the level of likely damages meant it was not worth devoting costs or court resources to it.