Supreme Court to hear recoverability appeal alongside dispute over who ‘won’ libel case

Supreme Court: cases to be heard together

Supreme Court: cases to be heard together

The Supreme Court has joined an appeal over the recoverability of additional liabilities in defamation cases to a long-running libel case where it is to consider which party won for the purposes of costs.

We reported recently that the court granted permission to appeal in Miller v Associated Newspapers, having been asked by the High Court to leapfrog the matter so as to resolve the tension between earlier rulings of the House of Lords and the European Court of Human Rights on whether additional liabilities should be recoverable in publications proceedings.

The Supreme Court has told Litigation Futures that it will be heard alongside the appeal in Times Newspapers Ltd v Flood [2014] EWCA Civ 1574, a case which started in 2007 and has already been to the highest court on a preliminary issue.

The final round of proceedings concerns the costs. The Court of Appeal upheld the ruling made by Mrs Justice Nicola Davies at the conclusion of Gary Flood’s action against Times Newspapers for libel in respect of an article published in The Times and online from 2 June 2006 entitled ‘Detective accused of taking bribes from Russian exiles’.

Though publications of the article in the newspaper and online until 5 September 2007 were covered by the defence of Reynolds privilege, online publications thereafter were not as the paper knew that Mr Flood had been cleared by a police investigation, but did not amend its website for more than two years.

Though these publications were a small fraction of the total Mr Flood was awarded £60,000 plus costs after Nicola Davies J ruled that Mr Flood was the successful party for the purposes of costs.

Giving the appeal court’s judgment, Lady Justice Sharp said: “The allegation against Mr Flood was a clearly a serious one – in short that there were strong grounds to suspect he was guilty of corruption.

“Further, TNL had continued to publish it for a period of more than two years after it knew he had been exonerated of any such charge. In my opinion, the judge was quite entitled to conclude that he had brought the action to obtain vindication in respect of that allegation – and that he succeeded in achieving that objective.

“It is true that as a result of the ruling on Reynolds privilege the number of actionable publications was relatively small. Nonetheless, it is artificial to suggest… that the issue of vindication is somehow divisible. Mr Flood had brought the proceedings to clear his name in respect of a particular allegation and by the end of the trial he had succeeded in doing so.

“As the judge said, TNL won on part, and Mr Flood won on part, and it was on that part upon which he won, that ultimately Mr Flood obtained the vindication for which he had sued.

“Although the issue of justification has not featured much in the argument before us, it should not be forgotten that until very shortly before the trial on damages, TNL was defending the action on the grounds that what it had published about Mr Flood was true. Nor should it be forgotten that the judge found that the manner in which TNL had conducted the litigation, left him with no choice but to pursue the proceedings to clear his name – which in the event he did.

“The fact that TNL had won on a part of the case and in relation to most of the publications complained of, did not preclude a judgment that Mr Flood was the overall winner of the action. Success in this litigation was not to be measured by raw numbers as I have already said: such an approach would have been overly simplistic and wrong.”

She concluded: “Nicola Davies J could have made a different order on costs than she did, but her discretion on costs was a wide one. I do not accept she erred in exercising it, and I would dismiss this appeal.”

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