KGM v News Group Newspapers Ltd & Ors

The second issue that arises is that of costs. On behalf of the appellant/claimant Mr Tomlinson realistically accepts that he has to pay the costs of the three respondents. The only issue is whether the costs of the second and third respondents should be paid on a standard basis or an indemnity basis, the first respondent accepting that it should receive costs on the standard basis.

Mr Warby, on behalf of the third respondent, and both he and Ms Rogers, on behalf of the second respondent, have put forward an attractive argument as to why their clients should receive their costs on an indemnity basis. Their primary point rests on the fact that they did not need to take part in this appeal because whichever way it went, effectively no rights as against the claimant and his rights as against them would be determined and there was no point in them being here. However, the appellant refused to let them out of the appeal.

We have nonetheless reached the conclusion that despite that they should receive each of their costs on a standard basis. In light of what Eady J has decided in a case connected with this one, which is also under appeal, it is not absolutely clear that the second and third respondents could have dropped out, although I have to say at the moment at present advised I think they could have done so. However, there remains the point that Maurice Kay LJ when giving permission to appeal thought that the issue involving them, namely whether it was appropriate to grant an injunction when there was no specific threat to publish, justified consideration by this court.

More importantly, it seems to me that, particularly if the second and third respondents are correct, namely that they need not have been here, then given that the appellant refused to let them drop out, we have not heard any good and convincing reason as to why the second and third respondents each needed to be separately represented. The basic point as to why they did not need to be here could have been made by a single counsel on their behalf. And if the issue as to whether or not there was a threat to publish came to be considered, I have to say that I am unconvinced there was any reason for them to be separately represented, or at least a good enough reason to justify them each having their costs on an indemnity basis.

Parties have a right to be represented separately and to have the lawyers of their choice, but the issue before us is whether it is right, and the extent to which it is right, for the losing party, the paying party, to pay the costs. And not merely the costs, but the costs on an indemnity basis. Here we have two parties who choose to be represented in circumstances where they could, as it seems to us, been represented by same counsel. We are in an odd position in that, on the appellant's case, there is a much stronger case for the two respondents being separately represented, whereas on the respondents' case there was a much stronger case for them being represented by single counsel.

In those circumstances although on one view, as Etherton LJ has suggested one could order a single set of costs on an indemnity basis, it seems to us that the right order to make in light of the way the arguments have advanced, is to make the order which the appellant accepts should be made, namely the second and third respondents should each have their respective costs on a standard basis.