Noel Anthony Clarke v Guardian News & Media Ltd

I shall first address the various costs issues that arise. The first issue under this head is the appropriate costs order to be made upon the dismissal of the claim. The Defendant seeks its costs of the claim as a whole. The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, but the court may make a different order (see CPR 44.2(2)(a)).

The Defendant is, resoundingly, the successful party having succeeded on both defences to the defamation claim, as well as on the issue of serious harm in respect of the second to eighth Articles. By my order of 22nd August 2025, I dismissed the Claimant’s claims for defamation and data protection. There needs to be a reason based on justice for departing from the general rule. Plainly, there is no such reason in this case. Although he did not formally concede that the Defendant would be entitled to its costs, Mr. Clarke sensibly did not suggest otherwise.

The Defendant has been wholly successful and is entitled to an order that the Claimant pay its costs subject to detailed assessment.

The second issue concerns the various “costs reserved” orders made in the course of proceedings. Specifically (a) the orders made by consent, concluding the Defendant’s application for an interim non-disclosure order (see paragraph 2 of the order of Pepperall J, sealed on 11th December 2024; and paragraph 2 of the order of Collins Rice J sealed on 17th December 2024); and (b) the costs of the Amendment and Joinder Application (see paragraph 17 of my order of 20th January 2025).

Where the order is “costs reserved”, the effect is to defer the decision about costs to a later occasion but, as the definition in paragraph 4.2 of Practice Direction 44 provides, “if no later order is made, the costs will be costs in the case”.

The Defendant submits that the appropriate way of dealing with the “costs reserved” orders is to make no further order, leaving them to be treated as costs in the case. The Defendant submits that nothing has happened in the case that warrants an award of any of those costs to the Claimant.

The Claimant submits that the report which was the subject of the non-disclosure application was not created by him or under his control. He did not threaten to publish it and he gave undertakings not to do so straightaway, avoiding the need for a hearing. In respect of the amendment and joinder application, the Claimant makes the point that the proposed new defendants were never joined, never served and never became parties.

I agree with the Defendant that the appropriate course is to make no further order in respect of the reserved costs, with the effect that they will fall to be treated as costs in the case. As the Claimant acknowledged, Dr. Stevenson’s involvement in the case arose from him being contacted by the Claimant’s then legal representatives. It is clear that Dr. Stevenson wrote his report, having been provided with disclosure by the Claimant’s legal team. The application was necessary because of Dr. Stevenson’s threat to publish the report, for which the Claimant and his legal team bear responsibility. There is no warrant for the costs of the interim non-disclosure order to be other than costs in the case.

As regards the costs of the Amendment and Joinder Application, Mr Clarke’s objection concerned any costs incurred by the proposed new defendants rather than by the Defendant. It is plainly right that the Defendant should have its costs of that application. I have now dismissed it on withdrawal. But in any event, the Claimant was permitted to advance his case as to the alleged conspiracy at the liability trial and to cross-examine the Defendant’s witnesses upon it. For the reasons given in the judgment I handed down on 22nd August 2025, I concluded that the truth and public interest defences were established and that the conspiracy allegation lacked any proper foundation and ought not to have been made. It inevitably follows that permission to make those proposed amendments would have had to be refused as having no prospect of success. By making no further order in respect of the reserved costs order relating to the amendment and joinder application, the Defendant’s costs in that regard fall to be treated as costs in the case and therefore the Defendant’s costs.

The proposed new defendants were never served with the application. So it is questionable whether they will have incurred costs beyond those already dealt with in 20th January 2025 order or, if they have, whether they are entitled to an order in respect of them. However, I make no determination in that regard. They are not represented today and it is open to them to make an application if they wish. Such permission is already provided for in 20th January order.

The order I make today will provide for the Defendant to serve my order of 22nd August 2025, and the order I make following this hearing, on the proposed new defendants, so they are aware of those orders and if they wish to make an application they can do so.

Accordingly, I make no order in respect of the “costs reserved” orders.

The third issue in respect of costs concerns the basis of assessment (i.e. standard or indemnity). Whichever basis of assessment applies the court will not allow costs which have been unreasonably incurred or are unreasonable in amount (see CPR 44.3(1)).

There are two key differences between the bases of assessment: first, where the amount of costs is to be assessed on the standard basis, the court will only allow costs which are proportionate to the matters in issue. Whereas, when costs are assessed on the indemnity basis, if they have been reasonably incurred, they will not be disallowed or reduced on proportionality grounds. Secondly, where the amount of costs is to be assessed on the indemnity basis, the court will resolve any doubt which it may have as to whether costs were reasonably incurred or were reasonable in amount in favour of the receiving party. Whereas, when costs are assessed on the standard basis, any such doubts fall to be resolved in favour of the paying party.

The Defendant seeks an order for costs to be assessed on the indemnity basis. The Claimant opposes that order and submits that costs should be assessed on the standard basis.

The legal principles governing the exercise of the court’s discretion to award costs on the indemnity basis are summarised in the White Book at 44.3.8 to 44.3.10, and they are not contentious. The court must have regard to all the circumstances of the case. The conduct of the parties is a key aspect of the circumstances that fall to be taken into account. Such conduct includes whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue, and the manner in which a party has pursued or defended his case or a particular allegation or issue. In Three Rivers DC v Bank of England [2006] EWHC 816, [2006] 5 Costs LR 714, Tomlinson J observed, at [25(3)] that:

“Insofar as the conduct of the unsuccessful claimant is relied on as a ground for ordering indemnity costs, the test is not conduct attracting moral condemnation, which is an a fortiori ground, but rather unreasonableness.”

The Claimant submits that indemnity costs should not be ordered. He had a right to bring this claim to defend his reputation in circumstances where he honestly believed the Defendant’s portrayal of him was false. He relied on legal advice throughout, made repeated efforts to settle and, although he acknowledges that he put some posts on social media regarding the case, he submits that he did not court publicity. The Claimant has also urged me not to make such an order given the devastating financial toll on his and his family’s financial circumstances that the Defendant’s Articles and this litigation have had on him.

As I explained to Mr. Clarke during the hearing, a party’s means are not a matter that fall for consideration at this stage when determining whether to make a costs order in favour of the opposing party or when determining the basis for assessment. Rather, a party’s ability to pay becomes relevant at the stage of enforcement.

Mr. Clarke has represented himself this morning and he put forward his arguments eloquently and respectfully. Nevertheless, in my judgment there are a number of considerations that, whether taken individually or cumulatively, lead inevitably to the conclusion that an award of costs on the indemnity basis is justified, and that the standard basis of assessment would not strike a fair balance in the circumstances of this case.

First, while I accept that the Claimant believes the Defendant’s portrayal of him is unfair, and that his treatment has been worse than that meted out to others who, unlike him, have been convicted of criminal offences, the Claimant’s pleaded case and his evidence at trial on the defence of truth contained many statements that I have found were untrue and dishonest. In Esure Services Limited v Quarcoo [2009] EWCA Civ 594, Waller LJ observed at paragraph 23 that if a court has found that a claim has been brought or maintained dishonestly “it will be normal for a court to seek to mark its disapproval” by making an order for indemnity costs. That is, sadly, the position here.

Secondly, the Claimant maintained a far-fetched and indeed false case that the Articles were not substantially true by advancing and pursuing allegations of dishonesty and bad faith against almost all the Claimant’s truth witnesses, as well as some third parties. This included untrue allegations that victims of his misconduct, and witnesses to it, were lying about his conduct in the witness box – allegations which inevitably caused distress, particularly to those recounting deeply personal incidents of sexual misconduct to which they had been subjected. But the false allegations went further than claiming witnesses were lying about the Claimant’s conduct. The Claimant also raised and very publicly aired other serious allegations against the Defendant’s witnesses, including an allegation that witnesses had falsified a date on a Snapchat document, allegations of theft of documents, and perversion of the course of justice, an allegation that a witness had made numerous rape allegations, and the sweeping allegation of conspiracy, all of which were untrue and baseless.

Thirdly, the Claimant made, maintained and very publicly aired wholly unfounded allegations of dishonesty against three professional journalists. When such allegations are made and not substantiated, the court has long shown itself ready to respond by ordering payment of costs on an indemnity basis.

In order to obtain an order for indemnity costs it is not necessary for the Defendant to show that the Claimant’s unreasonable conduct increased its costs (see the White Book at paragraph 44.3.9, citing Phoenix Finance Ltd v Federation Internationale d’Automobile [2002] EWHC 1242 (Ch), CP Rep. 1, per Sir Andrew Morritt V-C). Nevertheless, I accept that the approach taken by the Claimant and in particular the conspiracy allegation will have significantly increased the Defendant’s costs.

Accordingly, I order the Claimant to pay the Defendant’s costs of the claim to be subject to detailed assessment on the indemnity basis, if not agreed.

The fourth issue in respect of costs concerns the question of a payment on account. CPR 44.28 states that, “Where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs unless there is good reason not to do so.”

The Defendant submits that there is no good reason not to order a payment on account of the Defendant’s costs in this case. In respect of the amount, the Defendant relies on the seventh witness statement of Ms. Fuhrmann in which she gives evidence that the Defendant’s total costs are significantly in excess of £6 million. The grand total of the Defendant’s budgeted costs incurred and estimated was £3,718,292.98 in its Precedent H dated 5th July 2024. That was reduced to £3,184,519.98 in an updated Precedent H dated 17th July 2024 filed pursuant to the order of Master Brown of 19th July 2024. In part, that reflected a reduction in the estimated costs of witness statements which Master Brown budgeted, but in more substantial part, it reflected a decision to dispense with budgeting in the disclosure phase, leaving it to be agreed or subject to detailed assessment. So, no figures for the estimated costs of disclosure were given in the updated Precedent H. Budgeting for the trial preparation and trial phases had been adjourned and was subsequently dispensed with.

Ms. Fuhrmann has explained that the costs incurred were substantially more than was foreseeable in July 2024 for a number of reasons. The reasons include the complexity of the process of preparing and redacting volumes of source interviews and audio files, the costs of trial preparation incurred by the Defendant, which ordinarily would have been borne by the Claimant in whole or in part, but due to failures on the part of the Claimant’s team fell to the Defendant, the unanticipated application for an interim non-disclosure order, costs of work in response to the Claimant’s increase of his claim to £70 million (subject to permission of the court) incurred prior to the pre-trial review, deficiencies in the Claimant’s disclosure which took time to investigate, the flurry of applications made by the Claimant, and the fact that the Defendant has incurred the full costs of the same-day transcription and electronic presentation of evidence services throughout the trial as the Claimant was not prepared to contribute.

The total costs will be a matter for detailed assessment if they cannot be agreed. At this stage, the Defendant seeks a payment on account in the sum of £3 million which it contends is a reasonable proportion of Ms. Fuhrmann’s conservative estimate of the costs incurred. Indeed, Mr. Millar draws attention to the more usual percentage which he submits would be in the range of about 75% or more whereas the payment on account sought is 50% of the minimum that the Defendant states will be sought on detailed assessment.

The Claimant opposes any interim payment, but submits that if any is made, it should be modest, proportionate to his means and stayed pending a potential appeal.

As I have said, the parties’ ability to pay is usually not a relevant consideration in considering what order for costs to make in principle. It is relevant at the stage of enforcement. In Bank St Petersburg PJSC v Arkhangelsky [2018] EWHC 2817 Ch, Hildyard J rejected the Defendant’s submission that their inability to pay constituted a good reason for not making an interim payment order under rule 44.28 (see the White Book, paragraph 44.2.12).

In my judgment, Mr. Clarke’s asserted inability to pay (about which I make no findings as I have heard no evidence on the issue) is not a good reason not to make an order for payment on account in favour of the Defendant and there is no other good reason. The Defendant is entitled to receive a payment on account so I turn to the question of the amount.

The Claimant submits that the sum of over £6 million in total that the Defendant seeks is excessive and disproportionate and it would be likely to be reduced on assessment. He submits that the problems with disclosure, to which Ms. Fuhrmann has referred in her statement, went both ways. His legal team had to chase the Defendant for documents too and his disclosure was carried out with professional help and in good faith. He submits that any extra costs the Defendant says it spent were partly down to its own failures. He also submits that the approach taken to redaction, albeit there were source protection issues, was unnecessary. He submits that delays back in 2022-2023, to which Ms. Fuhrmann has referred, were not caused by him personally, but by his then solicitors and that he personally acted quickly to secure new lawyers and sought a short adjournment, when it was necessary to do so, to ensure that he could be properly represented. He submits that in so far as he posted on social media, that was something that he understood from his representatives he was not prevented from doing and that the Defendant’s decision to spend money on monitoring his social media and costs in relation to that was entirely the Defendant’s choice.

As I have said in relation to the non-disclosure application, he submits that the report at the centre of it was not created by him or under his control and that he acted reasonably in giving undertakings straightaway to avoid the need for a hearing. In respect of the very high costs the Defendant has incurred in respect of witnesses and trial preparation, the Claimant submits that that is down to the Defendant’s decision to call a huge number of witnesses over a period of more than two years and he submits that he cannot be held responsible for the costs generated by the Defendant’s choices. In respect of the increases in his damages claim, he submits that such increases were not made in bad faith, it was a fair attempt to reflect the actual loss that he had suffered and it is entirely normal for there to be those kinds of changes.

Further, Mr. Clarke submits that he ought not to have to bear the costs incurred by the Defendant in respect of the trial transcripts in the EPE, which were optional extras. He describes those as luxuries which he could not afford and so did not have the benefit of them and it was the Defendant’s to bear those.

In Excalibur Ventures LLC v Texas Keystone Inc [2015] EWHC 566 (Comm), Christopher Clarke LJ observed that what is a reasonable sum on account of costs will often be one that is an estimate of the likely level of recovery subject to an appropriate margin to allow for error in the estimation. The Claimant is, of course, right that the total sum in excess of £6 million that Defendant has stated it will be seeking on detailed assessment if costs are not agreed would be likely to be reduced on detailed assessment. But there is no real prospect that they will be reduced so drastically that half that sum does not allow an appropriate margin.

In relation to the specific matters that he takes objection to, it does not seem to me, on the face of it, that the Defendant can be criticised for incurring the costs of redacting documents and it is plain that that was a complex issue in which lawyers had to be involved. Whilst delays in 2022-2023 may not have been caused by the Claimant personally, the costs that the Defendant has necessarily incurred as a result of that, even if it is the responsibility of his then solicitors, would be likely to have been reasonably incurred.

The non-disclosure application was reasonably made in circumstances where there was a threat to publish Dr. Stevenson’s report and that is something which, as I have said, the Claimant has to bear responsibility for. It does not seem to me that the Defendant can be criticised for the number of witnesses that it called in circumstances where it was seeking to establish a defence of truth and also a defence of public interest.

Equally, whilst it does not necessarily involve any criticism of the Claimant’s assessment of the quantum of his claim, the point that the Defendant makes is simply that the increase of the quantum to £70 million inevitably led to the Defendant having to incur considerable extra costs that were not foreseen in the summer of 2024 in order to respond to that prior to the pre-trial review. Whilst I appreciate the Claimant’s reasons for not contributing to the trial transcripts and EPE, those are something that the Defendant was entitled to obtain and it does not seem to me that they would be regarded as in any way unreasonable in the context of a trial of this nature. It is understandable that in July 2024, when assessing the likely costs, the Defendant would have assumed that they would bear half the costs rather than the full costs of those services.

Bearing in mind that the sum claimed by the Defendant on detailed assessment will be in excess of £6 million and having regard to the nature of the claim and the way in which it has been pursued by the Claimant and his lawyers; bearing in mind also the Defendant’s rates as they appear on the Precedent H forms and what appears, on the face of it at least, to be a reasonable use of more junior solicitors where appropriate; and also bearing in mind that I have ordered that costs will be assessed on an indemnity basis; it seems to me that the sum of £3 million sought by the Defendant is appropriate and no more than ought reasonably to be ordered in this case. It is a “reasonable sum” to require the Claimant to pay on account. It is substantially lower than the Defendant’s likely level of recovery on detailed assessment and so, in my judgment, it does allow for a suitably wide margin of error. Accordingly, I shall order the Claimant to make a payment on account in the sum of £3 million within 28 days.

The Claimant has not sought permission to appeal today, but he has asked me to stay the costs order pending a potential application for permission to appeal. It was, I confess, somewhat unclear whether he was specifically seeking an extension of time to appeal. But I think ultimately that is the effect of the application he was making.

The draft judgment was provided to the Claimant’s then lawyers seven days before it was handed down and so they had some time to consider it while they were still instructed by the Claimant and before they came off the record. The Claimant himself has had the judgment for just over a month so he has already had an extension of time in which to seek permission to appeal. I understand that in the last four weeks, since his former representatives came off the record, he has spoken to a number of legal firms, but at this stage he has not instructed anybody.

In my judgment, it would not be appropriate in the circumstances to extend time to make an application for permission to appeal. Whilst I appreciate that it is a lengthy judgment, nonetheless, the Claimant has already had more than the usual period to consider whether there are any grounds on which to seek leave to appeal and this hearing today was specifically set down with a view to dealing, amongst other matters, with the question of permission to appeal.

The Claimant has not, at this stage, identified – even in outline - any potential grounds of appeal or areas in respect of which he may wish to appeal. I note that, in large part, the judgment is a fact-finding exercise and it is difficult to perceive any potential grounds for appeal. In these circumstances, I am not prepared to extend time in which to seek permission to appeal. Of course, if the Claimant seeks permission to appeal out of time, he can explain his reasons for doing so at that stage. As no application for permission to appeal has been made, and I have refused the application to extend time to seek such permission, there is no basis on which it would be appropriate to stay the costs order and, accordingly, I refuse the application for a stay. That concludes my judgment.