Times Newspapers Ltd v Flood

The claimant in this case, Mr Gary Flood, brought proceedings for libel against Times Newspapers Limited (TNL) in May 2007. Six years later, the claim came before Nicola Davies J in a trial for the assessment of damages. She awarded Mr Flood £60,000 in damages. There is no appeal against that determination. The issue that arises on this appeal relates to the costs order she then made. She ordered TNL to pay Mr Flood’s costs of the action, including the costs of the trial of damages and the reserved costs of the trial of a preliminary issue before Tugendhat J in July and October 2009, which dealt with TNL’s defence of Reynolds privilege.

There were no CPR part 36 offers made by either side and the judge therefore had a discretion as to costs, which fell to be exercised in accordance with CPR 44. 2. This provides in part that:

The real contest between the parties on costs, both before the judge and before us, concerned the reserved costs on the issue of privilege and who should pay them.

TNL argued before the judge that Mr Flood had sued over the publication of the article in its print edition and online. Each separate publication gives rise to a separate cause of action. TNL’s defence of Reynolds privilege succeeded in respect of most of the publications sued on; it should therefore have its costs of that issue which it had won.

The judge rejected that argument. She considered Mr Flood should be treated as the successful party in the litigation and that there was no reason to depart from the general rule, that he was entitled to the costs of the action. Her judgment is a careful and nuanced one. It was reached following an equally careful judgment on the assessment of damages, against which there is no appeal, and which considered in detail the history of the litigation, and TNL’s conduct of it, a matter which was significant both in relation to damages and to the costs order the judge then made.

The issue for this court is whether the judge exceeded the wide ambit of discretion given to her on the issue of costs. In my judgment, she did not. She made no error of principle, and was entitled to exercise her discretion in the way that she did. I would therefore dismiss this appeal.

The case concerned an article written by Michael Gillard and published in The Times newspaper by TNL on 2 June 2006 entitled “Detective accused of taking bribes from Russian exiles.” Its subtitle was “Police are investigating the alleged sale to a security company of intelligence on the Kremlin’s attempts to extradite opponents of President Putin”. At the time the article was published and until his retirement Mr Flood was a detective sergeant with the Metropolitan Police Extradition Unit. The article appeared in the print edition and on the Timesonline website. The article identified the officer under investigation as Mr Flood. The article is set out in a number of the reported judgments of this case, to which I shall refer, and it is not necessary to set it out again.

The Directorate of Professional Standards (the DPS) of the Metropolitan Police conducted an investigation into the allegations of corrupt practice said to have been committed by Mr Flood. The Senior Investigating Officer (from 28 April 2006) was DCI Crump. In the course of the investigation, search warrants were executed at Mr Flood’s home, and from that date he was removed from the Extradition Unit until January 2007 when he returned to it.

The DPS made its report into these allegations (the Report) on 2 December 2006 though the Report was not made available to the parties until early September 2007. Its findings, the date they were provided to TNL, and what TNL did (or perhaps more accurately did not do) as a result, proved to be critical to the eventual outcome of the litigation. In short, the Report exonerated Mr Flood. Its conclusions were that the DPS had been: “unable to find any evidence to show [Mr Flood]… has divulged any confidential information for monies or otherwise. Consequently, there are no recommendations made as to criminal or discipline proceedings in relation to that matter.” However, TNL did not report on the outcome of the investigation its article had called for, or update its online article for a further two years.

Proceedings for libel were begun on 31 May 2007 in relation to both the print and the online publications. Mr Flood claimed the words complained of meant there were strong grounds to believe, or alternatively that there were reasonable grounds to suspect that he had abused his position as a police officer with the MPS extradition unit by corruptly accepting £20,000 in bribes from some of Russia’s most wanted suspected criminals in return for selling to them highly confidential Home Office and police intelligence about attempts to extradite them to Russia to face criminal charges, that he had thereby committed an appalling breach of duty and betrayal of trust and had thereby committed a very serious criminal offence.

TNL relied on two substantive defences in relation to both the print and online publications: public interest (Reynolds) privilege and justification. The meaning which TNL sought to justify was a lower meaning than that complained of by Mr Flood. It was that: “the claimant was the subject of an internal police investigation and that there were grounds which objectively justified a police investigation into whether the claimant received payments in return for passing confidential information about Russia’s possible plans to extradite Russian oligarchs.”

In its privilege defence, TNL drew no distinction between the print and online publications. Its defence was that publication was in the public interest, and its journalists acted responsibly in composing and publishing the article. In his Amended Reply, Mr Flood did not distinguish between the print and the online publications either. But he alleged in relation to the website publications that the circumstances had changed as time passed, further information came to TNL and there was no continuing public interest in the website publications.

On 2 June 2009, Eady J ordered, on TNL’s application, that the privilege defence should to be tried as a preliminary issue, and the trial of that issue took place before Tugendhat J between 15 and 20 July 2009. In a judgment handed down on 16 October 2009, Tugendhat J held the privilege defence was successful for the print edition and the online publications up to 5 September 2007; but the defence was unsuccessful for the online publications made after that: see [2009] EWHC 2375 (QB).

The judge’s headline findings on privilege were that the publication on the 2 June 2006 was a proportionate interference with Mr Flood’s right to reputation given the legitimate aim in pursuit of which publication was made. The story was about a police investigation into an allegation that an officer in the extradition unit had been corrupted by a former police officer now working on behalf of very wealthy and controversial Russians living in England. The story was of high public interest, and its purpose was to ensure that that investigation was carried out promptly. That too was a matter of public interest. The judgment of TNL in publishing the story and in naming Mr Flood was within the range of permissible editorial judgments which the court was required to respect (see para 215). The fact that the investigation may have been precipitated by TNL’s journalists was not a reason why TNL should not have had the benefit of Reynolds public interest if they then reported on the investigations in the article: (see para 258).

In relation to what appeared on the website however, different issues arose.

The website version of the article had remained online in its original form from 2 June 2006 to the date of the judgment, save for the addition of the words “[this article is subject to a legal complaint]” after the first paragraph of text at some unspecified time after the libel action was begun. In summary, the judge decided the continued publication of the article without a suitable Loutchansky notice (Footnote: ¹ ) attached alerting any reader of the article as to the outcome of the investigation could not constitute responsible journalism for the purposes of the defence of privilege after 4 September 2007. This was when TNL learnt of the official conclusions of the police investigation into the allegations against Mr Flood that there was no evidence to suggest any wrongdoing by him.

The judge also found that Mr Flood’s rejection of offers made by TNL shortly after it had learned of the outcome of the MPS investigation, to publish words to the effect that 'there was insufficient evidence to proceed with any criminal prosecution' was reasonable. Since that correspondence has featured in the arguments before us, it is convenient to set out what Tugendhat J said about it. He said:

On 21 October 2009, a few weeks after the judgment on privilege was handed down, TNL added an update to the article online, reporting for the first time, the outcome of the MPS investigation into Mr Flood. Mr Flood did not complain of the updated article, so his claim from then on was concerned with the publications (or ‘hits’) on TNL’s website for the two year period between 5 September 2007 and 21 October 2009 (Footnote: ² ) . These numbered about 550. This was a small fraction of the relevant print edition of about 633,850 copies and of the 3,777 hits on TNL’s website up to 4 September 2007. (It is said on behalf of TNL that applying “the conventional multiplier for a daily newspaper per copy, of 2.5 readers per copy, this represents just under 1.6 million readers.” Nothing turns on the point in this appeal, but I am bound to say I am doubtful whether such a multiplier is justified as a matter of convention in 2014 given the many different ways in which people now obtain information about current affairs, not least through the internet, as in this case).

There were then appeals and cross appeals to the Court of Appeal and then to the Supreme Court on the issue of privilege: see [2010] EWCA Civ 804; [2011] 1 WLR 153; and [2012] UKSC 11; [2012] 2 AC 273. The Court of Appeal decided that the judge was wrong to hold that privilege attached to the pre-September 2007 publications, and upheld his ruling that it did not attach to those after that date. On 21 March 2013 however, the Supreme Court allowed TNL’s appeal in part, restoring the judge’s decision that the publications up to 5 September 2007 attracted privilege. It adjourned the issue of whether the website publications had ceased to be privileged after 5 September 2007, but TNL subsequently withdrew that part of its appeal. Costs orders were made following these events which form no part of this appeal.

After the judgment of the Supreme Court, two more events of significance occurred. First, on 25 July 2013 Tugendhat J. decided the issue of meaning as a preliminary issue. He held the publications for which liability was still in issue, bore the more serious meaning contended for by Mr Flood, rather than that justified by TNL: see [2013] EWHC 2182 (QB). This meaning was "that there were, and at the date of publication of the article online complained of there continued to be, strong grounds to believe that the claimant had abused his position as a police officer with the Metropolitan Police's Extradition Unit by corruptly accepting £20,000 in bribes from some of Russia's most wanted suspected criminals in return for selling to them highly confidential Home Office and police intelligence about attempts to extradite them to Russia to face criminal charges; had thereby committed an appalling breach of duty and betrayal of trust; had thereby also committed a very serious criminal offence".

Secondly, and as a result of the decision on meaning, on 1 October 2013 TNL withdrew its defence of justification and admitted liability.

This then was the background to the damages hearing tried by Nicola Davies J, on 3-4 December 2013. She handed her judgment down on damages on 19 December 2013: see [2013] EWHC 4075 (QB). She heard the argument on costs that afternoon and gave her decision on costs which is the subject of this appeal the following day.

Her damages judgment contains a meticulous analysis of the evidence relevant to the assessment of damages. This included (importantly for present purposes) an analysis of the stance TNL adopted to the litigation with particular reference to what was said in correspondence by its then in-house solicitor, Mr Brett in the period between 5 September 2007 to 21 October 2009. This was relevant to the issue of damages because “…if there has been any kind of high-handed, oppressive, insulting or contumelious behaviour by the defendant which increases the mental pain and suffering caused by the defamation and may constitute injury to the plaintiff’s pride and self-confidence, those are proper elements to be taken into account in a case where damages are at large.” See McCarey v Associated Newspapers Ltd (No 2) [1965] 2QB 86 at 104.

The judge set out at paragraphs 15 to 24 of the damages judgment, substantial extracts from the open correspondence between the parties from early September 2007 to early October 2007 which Tugendhat J had earlier considered in the context of the argument on responsible journalism: see paragraph 17 above. As to the correspondence which took place after that, and what Mr Rampton QC for TNL was constrained to say about it, the judge said this:

The judge rejected in uncompromising terms TNL’s argument that the open offers made to Mr Flood in September/October 2007 were reasonable ones which it could rely on in mitigation of damages; and made findings which were very critical indeed of TNL and its conduct of the litigation after it was told of the outcome of the MPS investigation. It is necessary to read paragraphs 71 to 82 of her damages judgment as part of this judgment and to avoid the need for cross-referral, they are set out at Appendix 1.

Though in raw numbers the extent of the actionable publications which were relevant for the purposes of damages was relatively small, and certainly far smaller than the number of publications before 5 September 2007, as can be seen from paragraph 81 of the damages judgment, the judge concluded their publication mattered. This reflects the reality of the position in relation to libel, where the fact that a libel or slander has been communicated to only a few publishees does not of itself give an indication of what is at stake or the need of a claimant to obtain vindication. This significant point was made by Tugendhat J in his judgment on Reynolds privilege where he said:

The outcome of the litigation could properly be described as a victory for Mr Flood. He had received a substantial award of damages for a serious libel which had caused him great harm. In this respect, the judge’s findings speak for themselves.

When it came to the decision on costs however, as the judge clearly recognised, she had to consider the matter through the prism of CPR Rule 44.2. She had already looked in detail at the open correspondence between the parties, but in this context she had to consider the offers to settle made in ‘without prejudice save as to costs’ correspondence between Mr Flood’s solicitors and TNL which the parties drew to her attention.

TNL argued for an issue based order. It said that the appropriate costs order, reflecting the relative success of the parties on the issue of privilege, and acknowledging the important public interest matters arising in these proceedings, was that Mr Flood should pay TNL’s costs of the Reynolds issue, save for any costs incurred wholly in relation to the website publications after 5 September 2007; and TNL should pay Mr Flood’s costs of all the other issues in the action. (I should add that TNL said in terms that a percentage costs order was inappropriate). Mr Flood on the other hand asked the court to order TNL to pay his costs of the action on a standard basis up to the end of October 2009 and on the indemnity basis thereafter.

The correspondence the parties referred to on the issue of costs was ‘without prejudice save as to costs’, with the exception of TNL’s letter of 16 August 2013. It is not necessary for present purposes to set out all the terms of each offer. In summary:

On 12 November 2007, Mr Flood offered to settle the action on the following terms: that TNL pay him £25,000 damages and his costs; that it undertook not to repeat the words complained of, and deleted the article from its website and that it published an apology acknowledging it had made an honest mistake in publishing the allegation that Mr Flood had been accused of selling confidential information obtained during the course of his duties to Russian exiles, he had not acted in that way and had never been accused of doing so, and he had been exonerated by the MPS investigation.

On 15 November 2007, TNL (Mr Brett) responded:

On 30 October 2008, following an application by TNL for third-party disclosure from the IPCC (to obtain material to support its defence on justification) Mr Brett wrote a long letter which said, amongst other things:

On 23 April 2010, a month before the hearing of the Reynolds appeal in the Court of Appeal, TNL offered to forego its own solicitors’ costs if the action was discontinued. In the course of that letter Mr Brett said:

On 2 April 2012, shortly after the Supreme Court gave judgment on the privilege issue, TNL’s offer was that Mr Flood should pay TNL’s costs up to the maximum of the sum insured under his after-the-event insurance. It said:

On 16 August 2013, after Tugendhat J’s decision on meaning, TNL made an open offer to pay Mr Flood £17,500 in damages, but on the basis, amongst other things, that Mr Flood should pay TNL’s costs of the part of the Reynolds trial on which it had succeeded.

On 17 September 2013, Mr Flood offered to accept £17,500 in damages on the basis that TNL paid the costs incurred in the High Court, that is, costs apart from those in the Court of Appeal and Supreme Court, subject to a deduction of 30 per cent of Mr Flood’s base costs to reflect a contribution towards TNL’s Reynolds defence costs.

On 21 November 2013, TNL offered to pay £17,500 in damages with each side bearing its own costs of the entire action.

After setting out the arguments on costs made by each side, the judge gave her conclusions which were as follows:

It is not suggested by Mr Rampton that the judge left out of account or took into account some feature she should or should not have considered, but his central argument is that she reached a decision that was plainly wrong because she did not balance the various factors which she considered fairly in the scale. TNL had won a substantial victory at the Reynolds privilege hearing which had occupied some 4 days. It succeeded in its important defence of public interest journalism, in respect of the overwhelming number of publications on which Mr Flood had sued, a success eventually upheld by the Supreme Court. In those circumstances Mr Rampton submits the judge’s decision that it should pay the entire costs of the litigation was unjust and plainly wrong.

I am unable to accept those submissions.

There were a number of important factors relevant to costs in this case as the judge clearly recognised and which she carefully balanced in reaching her decision; these were the overall outcome of the case, in terms of the award of damages to Mr Flood and the vindication he achieved by pursuing it; TNL’s success on the issue of privilege and the parties’ approach to settlement.

Although the judge concluded that Mr Flood was to be regarded as the successful party, in oral argument, neither side attached a great deal of significance to this matter standing on its own. Mr Rampton described the point as somewhat sterile. Mr Price submitted that it may make no practical difference whether the matters the judge considered were regarded as factors in the decision as to whether there was an overall winner, or in the wider balancing exercise of who should pay the costs. He submits the judge could (and would) have reached the same decision as to costs by balancing those factors, even if she had preferred to say there was no overall winner. I am inclined to agree that the matter can be looked at in this way, notwithstanding the structured approach to the exercise of discretion on costs contained in CPR 44.2.

Nonetheless, the judge regarded Mr Flood as the successful party in the litigation, and in my view she was entitled to do so.

Starting with the eventual outcome of the case, this was on any fair view, a success for Mr Flood as I have said. The award of £60,000 was a substantial one in libel terms, particularly where the allegation was not of guilt, but of strong grounds to suspect guilt of the conduct alleged (Footnote: ³ ) , and it exceeded by a considerable margin any offer of damages that had been made by TNL. Although as Tugendhat J correctly observed in Clarke v Bain and ors [2008] EWHC 2636 (QB) at 54, defamation actions, unlike personal injury actions for example, are not primarily about recovering money damages, but about vindication of a claimant’s reputation so the amount of damages is not necessarily a measure of a claimant’s success, an award of damages nonetheless operates in part to vindicate a claimant’s good name, as well as to compensate him for the injury to his reputation and for the distress, hurt and humiliation which the defamatory publication and the aggravating conduct of the litigation had caused him: see John v MGN Ltd [1997] QB 586 at 607 CA. All these were important features of this case as the judge recorded in her damages judgment.

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 2 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, as Mr Rampton does, 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: see paragraph 79 of her damages judgment, set out at Appendix 1.

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. It is true of course that, technically, each separate communication of defamatory material gives rise to a separate cause of action; so, theoretically, the publication of an article in a newspaper gives rise to many thousands of actionable publications. But it would be an abuse of the process of the court to bring a separate action for each of those publications; and generally speaking, there is one action, and only one award of damages, albeit the extent of publication may be relevant to size of the overall award.

Mr Rampton submits on the issue of overall success, it is relevant to ask whether Mr Flood had won anything of value which he could not have won without fighting the action through to the finish, or TNL had substantially denied Mr Flood the prize which he fought the action to obtain: see Roache v News Group Newspapers Limited and others [1998] E.M.L.R. 161, per Sir Thomas Bingham MR at p168-9. I agree it is relevant to ask such a question, and particularly where, as here an action is not concerned, or certainly not primarily concerned, with money. But as will be clear from what I have already said, on the facts of this case, the answer to the question is, or the judge was entitled to conclude that the answer to it was, one which was favourable to Mr Flood.

Whether Mr Flood was the successful party overall or not, it was undoubtedly the case that TNL had won on a significant part of the case, comprising numerically the greater proportion of the publications. And where a party has succeeded on part of its case, even if that party has not been wholly successful this is one of the factors to which the court will have regard when deciding what order (if any) to make about costs: see CPR 44.2(4)(b). There is also no doubt that Nicola Davies J was fully aware of the importance of this point to the issue of costs, and it is clear from her judgment that she gave the matter the most anxious consideration. Mr Price submits, rightly in my view, that the whole judgment really amounted to a careful examination of the weight to be attached to this point, and whether and to what extent it was counterbalanced by other relevant factors. Mr Flood’s success in obtaining substantial damages and vindication were factors which pulled in his direction on the issue of costs; and TNL success on the privilege issue pulled in the other. In the event, the judge thought that TNL’s success, which might otherwise have entitled it to an issue based costs order, was to be counterbalanced by its approach to settlement, and this was a view I think she was entitled to take.

As with the question of who was the successful party overall, the question of who should pay the costs of the privilege issue at the end of the litigation could not be answered simply by looking at the numbers in respect of which each side had won or lost. This much can be seen from the way that Tugendhat J looked at the matter, when considering what order for costs to make after the trial of the privilege issue; and indeed what Mr Rampton said to him at the time. The argument for TNL at that stage, was that that the judge should make an award of the costs of the preliminary issue in TNL’s favour because it had won on numerically the greater number of publications; and he should not be inhibited from doing so by the ‘without prejudice save as to costs’ offer of £25,000 which Mr Flood had made on 12 November 2007 (which TNL had persuaded the judge to look at in order to support its argument that the judge could say now that it should be paid those costs before the matter went any further).

Mr Rampton said the question for the judge was whether “there is a realistic prospect that a reasonable jury properly directed could in all the circumstances award the claimant more than £25,000 if he wins on the defence of justification. If the jury did award him more than that, then he would have an argument that he was entitled, not just to the costs of that part of the trial…but to the whole costs of the action from the date this offer was made, 12 November 2007.”

Tugendhat J however said:

In those circumstances, Nicola Davies J’s view that on the issue of Reynolds privilege, there was no clear-cut win for TNL, notwithstanding the numbers on which it had won, cannot realistically be criticised. Indeed the argument before her proceeded on both sides on the basis that TNL had won on part, and Mr Flood had won on part.

In considering the settlement point, the judge did not deal with TNL’s open offers to settle the litigation in early September/October 2007 and Mr Rampton criticises her for not doing so: he says these were reasonable offers, and it was therefore a travesty of the true position to describe TNL’s attitude to settlement as “die hard”. There is no substance in this criticism in my view. Mr Rampton had mounted the same argument on that part of the correspondence at the damages hearing and the judge had rejected it: see paragraphs 71, 73 and 79 of the damages judgment set out at Appendix 1. Not surprisingly perhaps, Mr Rampton did not then repeat this argument to the judge on the issue of costs.

Nor is there any substance in the suggestion that the judge somehow misapprehended the significance in the scheme of things of Mr Flood’s offer of the 12 November 2007 and gave it too much weight. It was not suggested on Mr Flood’s behalf to the judge, nor did the judge find that TNL’s refusal to accept the offer made on the 12 November 2007 was unreasonable or that TNL should have settled for £25,000 at that stage. As the judge said, the reasonableness of any offer had to be viewed in the circumstances prevailing at the time, and at the time the offer of 12 November 2007 was made, TNL had a valid Reynolds defence.

The position had changed however by the time of TNL’s letter of 30 October 2008. This was sent 14 months after TNL’s continued publication of the article ceased to be protected by Reynolds privilege; and 9 months before the trial of that issue. It showed very clearly that TNL was unwilling to accept the outcome of the MPS investigation, or to settle the action by giving Mr Flood any form of vindication or even modest damages under any circumstances. The judge was entitled to view this as demonstrating an intransigent (or “die hard”) approach to the litigation and settlement, and this was something she was entitled to take into account when considering the question of costs. In the end of course, Mr Flood was awarded damages substantially in excess of the amount TNL offered as late as August 2013, and substantially more than the amount he had earlier offered to accept.

It is suggested that TNL could not have settled the action without conceding the issue the Supreme Court decided in its favour, and this consideration effectively tied its hands with regard to negotiation. Thus it is said, an order for costs which effectively penalised it for not making any such offer undermined or would serve to undermine the importance of the Reynolds privilege defence, and the important Article 10 ECHR considerations which underpin it: in particular the vital role the media has in ensuring that the public obtains the public interest information that it needs and in maintaining the free flow of information upon which our democracy depends.

No one would or could gainsay for a moment the importance of the principle. But looking at the facts of this case, TNL obviously could have settled the action before the Reynolds trial, or at least offered to do so, in respect of the publications on which it lost, without conceding the point on which it won, and on terms which respected its right to publish information of public interest in the period up to the 5 September 2007. The fact that it made no such offer however had nothing to do with the difficulty in framing such an offer, but stemmed from its unwillingness to accept the outcome of the MPS investigation, a matter which is clear from the letter of 30 October 2008. TNL knew before the Reynolds trial, that Mr Flood had indicated a willingness to settle but it adopted an attitude which precluded any negotiation at all. It is to be observed that Tugendhat J concluded that TNL would have fought the trial in much the same way, even if Mr Flood had conceded that the publications before the 5 September 2007 were covered by privilege. As Mr Price submits, if TNL had not continued to publish the libel after the point when it no longer had a defence, it would not have had to pay damages or costs. Equally, if it had been willing to compromise in respect of the publications for which it had no defence, then the costs of the Reynolds trial might well have been avoided.

Tugendhat J’s views on the costs of the privilege issue did not bind those of Nicola Davies J, nor fetter her discretion when it came to the issue of costs. But Tugendhat J has very great experience in this field, and had of course the particular advantage of trying the Reynolds privilege issue. His view was that it could not be said after the trial of the preliminary issue, that the outcome was clear cut enough to merit making an order for the costs of the privilege issue in TNL’s favour. And it appeared to be TNL’s view that an award of damages of more than £25,000 might entitle Mr Flood to all the costs of the action. It is pertinent to ask how the position had improved for TNL by the end of the trial. By then it had lost on the issue of meaning, it had withdrawn its defence of justification, it had conceded liability and it been ordered to pay Mr Flood £60,000 in damages, substantially more than he had offered to accept at an earlier stage of the proceedings.

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.

I agree.

I also agree.