Law Report: Libel injunction did not justify costs award: Roache v News Group Newspapers Ltd and others. Court of Appeal (Sir Thomas Bingham, Master of the Rolls, Lord Justice Stuart-Smith and Lord Justice Simon Brown), 19 November 1992

In exercising his discretion in relation to the costs of an action, a judge should only depart from the general rule, and grant the plaintiff his costs notwithstanding that he has won no greater financial reward than the defendants have offered and paid into court before trial, where the judge is satisfied that the plaintiff has won something of value which he could not have won without fighting the action through to the finish.

The Court of Appeal allowed an appeal by the defendants, News Group Newspapers Ltd, publishers of the Sun, Kelvin Mackenzie, its editor, and Ken Irwin, a freelance journalist, against the decision of Mr Justice Waterhouse, awarding the plaintiff, William Roache, the costs of a libel action, in which he obtained an injunction restraining the defendants from further publication, but in which the jury only awarded the plaintiff the same sum in damages, namely pounds 50,000, as the defendants had previously paid into court.

The action concerned an article, published in the Sun on 1 November 1990, in which it was said that Mr Roache, an actor who for 30 years had played the part of Ken Barlow in the television series Coronation Street, had become known as 'boring Ken Barlow'; that he was considered self-satisfied and smug by his fellow actors; that he had been nearly fired on several occasions; that the producer had been authorised to kill off his part, and that he had become a joke among the programme's scriptwriters and production team.

A considerable part of the article, about which the plaintiff made no formal complaint, described his sexual exploits in his younger days.

The defendants pleaded fair comment and, to a limited extent, justification. They paid first pounds 25,000 and then a further pounds 25,000 into court, but the plaintiff did not accepted it.

During the trial, he was cross- examined about the 'sexual exploits' part of the article. The next day the Sun carried a report of the hearing, headed 'Star Bill Tearful at Sex Life Quiz'. It was partly because of this that, after the jury found for the plaintiff, the judge granted an injunction against republication.

Then, because the plaintiff had sought, and got, more than just damages of an amount which had already been paid into court, the judge considered it right to award the plaintiff costs. But he gave the defendants leave to appeal.

David Eady QC and Heather Rogers (Farrer & Co) for the defendants; Charles Gray QC and Tom Shields (Peter Carter-Ruck & Partners) for the plaintiff.

SIR THOMAS BINGHAM MR said two important principles were relevant here. The first was that costs normally followed the event, the winner recovering his costs from the loser.

The second was that where a plaintiff claimed a financial remedy and the defendant paid into a court a sum, not accepted by the plaintiff, equal to or greater than the plaintiff recovered in the action, the plaintiff should pay the defendant's costs from the date of payment in.

The proper approach to orders of costs had been discussed in many cases, the upshot of which was clear. The judge had to look closely at the facts of the particular case before him and ask: 'Who, as a matter of substance and reality, has won? Has the plaintiff won anything of value which he could not have won without fighting the action through to the finish? Has the defendant substantially denied the plaintiff the prize which the plaintiff fought the action to win?'

Normally, the present plaintiff's failure to recover more than the sum paid into court would have led to an order that he pay the defendants' costs from the date of payment in. The judge did not adopt this course on the ground that the plaintiff had to pursue the matter to judgment in order to obtain an injunction, the defendants having failed to give an undertaking.

In so concluding, the judge paid more attention than he should have done to the reasoning of Mr Justice Falconer in Colgate Palmolive Ltd v Markwell Finance Ltd (1990) RPC 197, a case about passing off and trade mark infringement, which was by no means analogous.

Moreover there was, on the facts, little force in the judge's grounds for regarding the plaintiff's apprehension of repetition as being well-founded.

In conclusion, the judge misdirected himself on the effect of Colgate Palmolive, formed factual conclusions for which there was no evidence, gave weight to matters of no or marginal relevance, failed to give weight to a matter of major relevance, namely the payment into court, and failed squarely to address the crucial questions for decision.

In these circumstances, their Lordships were entitled to exercise the court's discretion afresh. On the evidence, the defendants did not wish to fight the action, otherwise, they would not have paid pounds 50,000 into court. It was incredible that they would have allowed a settlement to founder for want of an undertaking not to republish.

The overwhelming probability was that if he had chosen to accept the money, the plaintiff could have had an undertaking, equivalent in effect to an injunction, for the asking. He only chose to go ahead because he wanted to win a larger sum from the jury than the defendants had offered.

The defendants undoubtedly emerged from the trial as the substantial winners: they held the award to a sum no greater than was already on offer. The injunction was a matter of no significance to them because they did not intend to republish anyway.

LORD JUSTICE STUART- SMITH and LORD JUSTICE SIMON BROWN concurred.

Start your day with The Independent, sign up for daily news emails
Have you tried new the Independent Digital Edition apps?
ebooks
ebooksA celebration of British elections
  • Get to the point
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 General

Ashdown Group: C# Developer - Kent - £43,000

£35000 - £43000 per annum + Benefits: Ashdown Group: C# and .Net Developer - n...

Guru Careers: Digital Marketing Exec / Online Marketing Executive

£35 - 40k: Guru Careers: Our client has a new role for a Digital Marketing Exe...

Ashdown Group: Marketing Manager (B2B) - Romford - £40,000 + car

£35000 - £40000 per annum + car and benefits: Ashdown Group: Marketing Manager...

Ashdown Group: Helpdesk Analyst - Devon - £20,000

£18000 - £20000 per annum: Ashdown Group: Helpdesk Analyst - Devon - £20,000 ...

Day In a Page

General Election 2015: ‘We will not sit down with Nicola Sturgeon’, says Ed Balls

'We will not sit down with Nicola Sturgeon'

In an exclusive interview, Ed Balls says he won't negotiate his first Budget with SNP MPs - even if Labour need their votes to secure its passage
VE Day 70th anniversary: How ordinary Britons celebrated the end of war in Europe

How ordinary Britons celebrated VE Day

Our perception of VE Day usually involves crowds of giddy Britons casting off the shackles of war with gay abandon. The truth was more nuanced
They came in with William Caxton's printing press, but typefaces still matter in the digital age

Typefaces still matter in the digital age

A new typeface once took years to create, now thousands are available at the click of a drop-down menu. So why do most of us still rely on the old classics, asks Meg Carter?
Discovery of 'missing link' between the two main life-forms on Earth could explain evolution of animals, say scientists

'Missing link' between Earth's two life-forms found

New microbial species tells us something about our dark past, say scientists
The Pan Am Experience is a 'flight' back to the 1970s that never takes off - at least, not literally

Pan Am Experience: A 'flight' back to the 70s

Tim Walker checks in and checks out a four-hour journey with a difference
Humans aren't alone in indulging in politics - it's everywhere in the animal world

Humans aren't alone in indulging in politics

Voting, mutual back-scratching, coups and charismatic leaders - it's everywhere in the animal world
Crisp sales are in decline - but this tasty trivia might tempt back the turncoats

Crisp sales are in decline

As a nation we're filling up on popcorn and pitta chips and forsaking their potato-based predecessors
Ronald McDonald the muse? Why Banksy, Ron English and Keith Coventry are lovin' Maccy D's

Ronald McDonald the muse

A new wave of artists is taking inspiration from the fast food chain
13 best picnic blankets

13 best picnic blankets

Dine al fresco without the grass stains and damp bottoms with something from our pick of picnic rugs
Barcelona 3 Bayern Munich 0 player ratings: Lionel Messi scores twice - but does he score highest in our ratings?

Barcelona vs Bayern Munich player ratings

Lionel Messi scores twice - but does he score highest in our ratings?
Martin Guptill: Explosive New Zealand batsman who sets the range for Kiwis' big guns

Explosive batsman who sets the range for Kiwis' big guns

Martin Guptill has smashed early runs for Derbyshire and tells Richard Edwards to expect more from the 'freakish' Brendon McCullum and his buoyant team during their tour of England
General Election 2015: Ed Miliband's unlikely journey from hapless geek to heart-throb

Miliband's unlikely journey from hapless geek to heart-throb

He was meant to be Labour's biggest handicap - but has become almost an asset
General Election 2015: A guide to the smaller parties, from the the National Health Action Party to the Church of the Militant Elvis Party

On the margins

From Militant Elvis to Women's Equality: a guide to the underdogs standing in the election
Amr Darrag: Ex-Muslim Brotherhood minister in exile still believes Egypt's military regime can be replaced with 'moderate' Islamic rule

'This is the battle of young Egypt for the future of our country'

Ex-Muslim Brotherhood minister Amr Darrag still believes the opposition can rid Egypt of its military regime and replace it with 'moderate' Islamic rule, he tells Robert Fisk
Why patients must rely less on doctors: Improving our own health is the 'blockbuster drug of the century'

Why patients must rely less on doctors

Improving our own health is the 'blockbuster drug of the century'