Underhill v Corser & Anor

There were three questions to be tried by way of preliminary issues. They are set out in my judgment of 27 May [2010] EWHC 1195 (QB) at para 2: (i) publication to non-members, (ii) qualified privilege and (iii) publication by Mr Corser. In addition I made a decision on an abuse of process point raised by the Defendants.

Issue (i) originally included four sub-issues: (1) publication in hard copy form to members; (2) publication to non-members of the excess or overrun copies (3) publication of hard copies to persons on the non-members mailing list, (4) publication to members through the website. In the event I decided only sub-issue (3), the others having been conceded by the Claimant. These issues on which the Claimant conceded had involved some separate costs, for example there are witness statements prepared that were not required at the hearing.

Issue (iii) concerned Mr Corser alone. The case on issues (i) and (ii) was advanced for both Mr Corser and Mr Watson.

I decided issue (iii) in Mr Corser’s favour, and the other two issues in favour of the Claimant. The upshot is that Mr Corser has won the action, but Mr Watson remains a defendant. I also decided the abuse of process issue in favour of the Claimant.

I now have to decide who should pay, and on what date:

The applicable principles are set out in CPR 44.3.

For the Claimant Mr Suttle submits that taking everything into account, a just order would be for 75% of the costs of or occasioned by the trial of the preliminary issues should be paid by the Defendants to the Claimant.

For the Defendants Mr Price submits that Mr Corser should be entitled to the costs of the claim against him. And Mr Price submits that Mr Watson should be entitled to his costs in respect of the parts of the questions set down as preliminary issues which were abandoned before the hearing.

Although Mr Corser did not choose to rely solely on issue (iii), but contested issues (i) and (ii), both sides acknowledge that his participation in those two issues added nothing to the costs. And Mr Price made clear that if an order was made in favour of Mr Corser it is only the costs of issue (iii) that he would be claiming.

Mr Price submitted that Mr Corser must be entitled to his costs of the claim against him. Although I accepted in my judgment some of the points made by Mr Suttle which went to Mr Corser’s credit, in the event, and notwithstanding that, I accepted Mr Corser’s evidence on his responsibility for publication. So the cross-examination as to credit was ultimately of no benefit to the Claimant.

Mr Suttle submitted that it is relevant to costs that Mr Corser did not dispute responsibility for publication until service of the Defence on 13 March 2009. He also referred to my criticisms of the Defendants in paras 94-98.

It is true that Mr Corser could have been forthcoming about his case on his responsibility for publication. He could have disputed it in the pre-action letters. But those letters included other claims. And, more importantly, the letters written for the Claimant, and the Particulars of Claim, are not as clear as they might have been as to the basis upon which it was said that he was responsible. As indicated in para 24 of my judgment, the case against Mr Corser developed during the action, and had at the start been based only on inference. So I do not think it right to qualify the order that I make by reference to any failure by Mr Corser to explain earlier or in more detail his case on responsibility for publication.

It follows that in my judgment Mr Corser should have the usual order in favour of a successful party, namely that the Claimant should pay his costs.

Just as Mr Corser’s participation in the trial of the preliminary issue on publication to non-members and qualified privilege (and abuse of process) added nothing to the costs relating to those issues, so I find that Mr Corser’s costs of the action relate only to the issue of responsibility for publication.

Before considering what order to make, I will consider the position of Mr Watson.

Mr Suttle submits that the Claimant has succeeded on all points against Mr Watson. And he refers to the criticisms that I made of Mr Watson, not only in relation to the points on which the Claimant succeeded, but also on the points which the Claimant conceded. The claim in respect of the overrun copies was conceded late, because the relevant information was disclosed late by the Defendants: see paras 4, 76, 84(ii) and 95.

Mr Price submits that Mr Watson should have his costs on the points which were conceded. But he accepts that in principle Mr Watson must pay the Claimant’s costs in relation to the two issues which I decided against him. Mr Price also submits that although I accepted some of Mr Suttle’s points made in cross-examination as to credit, they added nothing of significance, because those points did not affect my findings on the issues of the number of individual publishees, and that publication to none of them was on an occasion of qualified privilege. Nor did it affect my findings on abuse of process.

In principle (and disregarding the involvement of Mr Corser for the moment), I would order Mr Watson to pay the whole of the Claimant’s costs of the two preliminary issues which I decided against the Defendants.

I would make no separate allowance in respect of the points conceded. The costs of the issue of publication to non-members of the overruns would not have been incurred by either party if the Defendants had not failed to comply with their obligations under the Pre-Action Protocol and the CPR, as I found in para 95. The other costs seem to me to be insufficiently material to merit separate consideration.

Overall I assess the costs attributable to Mr Corser and the issue on which he won represent about 25% of the whole. So Mr Watson must pay to the Claimant 75% of the costs the Claimant has incurred on the preliminary issue. And the Claimant should pay Mr Corser 25% of the costs that the two Defendants together have incurred in the action.

There was some argument as to whether any order for costs should be paid promptly. Mr Price submitted that I cannot order a payment on account to be made by Mr Watson to the Claimant, because Mr Watson wishes to raise an issue as to whether the Claimant’s lawyers are entitled to be paid by the Claimant under the terms of the conditional fee agreement under which they are acting.

Mr Suttle submits, and Mr Price accepts, that any order that I make in Mr Corser’s favour should not be such as to make it impossible for the Claimant to carry on the action against Mr Watson.

Both parties also ask that any order be stayed pending an application for permission to appeal.

In the light of the above, I invite the parties to agree the precise form of the order for costs, and will hear further submissions, which may be in writing, in the event that they cannot agree.