LAW REPORT 6 February 1997 : Plaintiff to pay costs of making statement

Coff and another v Berkshire County Council and another; Queen's Bench Division (Drake J) 19 May 1995

Where the plaintiff in a libel action accepted money paid into court by the defendant, and the defendant thereafter played no further part in the action, he should not be required to pay the costs of an application by the plaintiff, under Order 82, rule 5 of the Rules of the Supreme Court, for leave to read out a statement in open court.

Mr Justice Drake so stated in a judgment given in chambers which has only recently been released for publication. His Lordship declined to order the defendants, Berkshire Health Authority and Robert Clark, to pay the additional costs incurred by the plaintiffs, Michael Coff and Harry A. Coff Ltd, in issuing a summons for leave to read a statement in open court following the settlement of the plaintiffs' libel action by their acceptance of a sum paid into court by the defendants.

Order 82, rule 5 provides:

(1) Where a party wishes to accept money paid into court in satisfaction of a cause of action for libel . . . that party may before or after accepting the money apply to a judge in cham-

bers by summons for leave to make

in open court a statement in terms approved by the judge.

Harry Boggis-Rolfe (Wansbroughs Willy Hargrave, Bristol) for the plaintiffs; R.G. Forrester (Hempsons) for the defendants.

Mr Justice Drake said the case raised a novel point as to whether or not the defendants should pay for the costs of an application by the plaintiff to make a unilateral statement in open court. The position here was that after a contested interlocutory hearing on which the plaintiff was successful, the defendants paid into a court a sum of money which was accepted the next day by the plaintiff, who thereupon became entitled to the costs of the action up to that date.

In the majority of cases where parties sought to settle a libel action they agreed to a joint statement and they agreed to an order as to costs to follow the making of the joint statement in open court. Where a defendant refused to agree to a joint statement, but simply paid money into court and the plaintiff thereupon took it out, then, as his Lordship understood the position, the defendant thereafter ceased to be an active party to the action and should not be at risk as to further costs.

If the plaintiff then proceeded, as he was entitled under Order 82, rule 5, to make a unilateral statement in open court, the plaintiff should bear the costs of doing so. If the defendant, upon hearing the terms of the proposed statement, chose to object to the terms and came before the judge and argued for an alteration to the unilateral statement, he would be at risk as to costs if he failed to obtain any significant modification in the proposed statement.

The position in this case fell into a slightly grey area. As his Lordship understood the position at present, having seen the correspondence, the defendants had never opposed the terms of the proposed unilateral statement. All they had said was "We will not agree to it" and in effect they had said "You go and make your application. We will not oppose it, neither do we consent to it. The ball is entirely in your court." What they had in reality said was "We have faded out of the action. We are going to have no further part in it."

Where this matter came into a slightly grey area was that telephone conversations had taken place with a view to agreeing to a joint statement, but they had come to nothing. His Lordship did not think, since they had come to nothing, that it would be right to order the defendant to pay the costs of those unsuccessful discussions.

The position therefore remained what his Lordship believed should be the normal position here, that when there was a payment in and it was accepted, the party taking the money out of court got his costs up to that date and if he then exercised the right under Order 82, rule 5 to apply to the court for approval for leave to make a statement in open court, he did so at his own cost.

So in this case the proper order was to approve the proposed statement in open court but to say that there would be no order as to costs.

PROMOTED VIDEO
News
ebooksAn unforgettable anthology of contemporary reportage
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

HR Advisor - North London / North West London

£30000 - £35000 per annum + Benefits: Ashdown Group: HR Advisor - North London...

Finance Manager - Recruitment Business (Media & Entertainment)

£28000 - £32000 per annum + negotiable: Sauce Recruitment: We have an exciting...

HR Advisor - North London / North West London

£30000 - £35000 per annum + Benefits: Ashdown Group: HR Advisor - North London...

HR Advisor - North London / North West London

£30000 - £35000 per annum + Benefits: Ashdown Group: HR Advisor - North London...

Day In a Page

Two super-sized ships have cruised into British waters, but how big can these behemoths get?

Super-sized ships: How big can they get?

Two of the largest vessels in the world cruised into UK waters last week
British doctors on brink of 'cure' for paralysis with spinal cord treatment

British doctors on brink of cure for paralysis

Sufferers can now be offered the possibility of cure thanks to a revolutionary implant of regenerative cells
Let's talk about loss

We need to talk about loss

Secrecy and silence surround stillbirth
Will there be an all-female mission to Mars?

Will there be an all-female mission to Mars?

Women may be better suited to space travel than men are
Oscar Pistorius sentencing: The athlete's wealth and notoriety have provoked a long overdue debate on South African prisons

'They poured water on, then electrified me...'

If Oscar Pistorius is sent to jail, his experience will not be that of other inmates
James Wharton: The former Guard now fighting discrimination against gay soldiers

The former Guard now fighting discrimination against gay soldiers

Life after the Army has brought new battles for the LGBT activist James Wharton
Ebola in the US: Panic over the virus threatens to infect President Obama's midterms

Panic over Ebola threatens to infect the midterms

Just one person has died, yet November's elections may be affected by what Republicans call 'Obama's Katrina', says Rupert Cornwell
Premier League coaches join the RSC to swap the tricks of their trades

Darling, you were fabulous! But offside...

Premier League coaches are joining the RSC to learn acting skills, and in turn they will teach its actors to play football. Nick Clark finds out why
How to dress with authority: Kirsty Wark and Camila Batmanghelidjh discuss the changing role of fashion in women's workwear

How to dress with authority

Kirsty Wark and Camila Batmanghelidjh discuss the changing role of fashion in women's workwear
New book on Joy Division's Ian Curtis sheds new light on the life of the late singer

New book on Ian Curtis sheds fresh light on the life of the late singer

'Joy Division were making art... Ian was for real' says author Jon Savage
Sean Harris: A rare interview with British acting's secret weapon

Sean Harris: A rare interview with British acting's secret weapon

The Bafta-winner talks Hollywood, being branded a psycho, and how Barbra Streisand is his true inspiration
Tim Minchin, interview: The musician, comedian and world's favourite ginger is on scorching form

Tim Minchin interview

For a no-holds-barred comedian who is scathing about woolly thinking and oppressive religiosity, he is surprisingly gentle in person
Boris Johnson's boozing won't win the puritan vote

Boris's boozing won't win the puritan vote

Many of us Brits still disapprove of conspicuous consumption – it's the way we were raised, says DJ Taylor
Ash frontman Tim Wheeler reveals how he came to terms with his father's dementia

Tim Wheeler: Alzheimer's, memories and my dad

Wheeler's dad suffered from Alzheimer's for three years. When he died, there was only one way the Ash frontman knew how to respond: with a heartfelt solo album