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.