(1) SHAKIR ALI (2) SHAHIDA ASLAM v CHANNEL 5 BROADCAST LTD (2018) EWHC 840 (Ch)
Ch D (Arnold J) 19/04/2018
CIVIL PROCEDURE – COSTS – TORTS
APOLOGIES : COSTS : COSTS BUDGETS : ESTOPPEL : MISUSE OF PRIVATE INFORMATION : PART 36 OFFERS : STATEMENTS IN OPEN COURT : VALIDITY
Where the claimants had succeeded in their claim for misuse of private information but failed to beat a Part 36 offer made by the defendant, the defendant’s failure in the offer to provide an apology or agree to a statement being made in open court did not make it unjust to impose the usual costs consequences of failing to beat a Part 36 offer. Among other things, there was no settled practice that claimants in cases of misuse of private information were entitled to an apology or an agreed statement in open court.
The court was required to rule on costs after giving judgment in favour of the claimants in their claim for misuse of private information against the defendant broadcaster.
Proceedings were issued in June 2016. On 27 September 2017, the defendant’s solicitors made a Part 36 offer. The claimants’ solicitors replied on 12 October, noting that the offer was monetary only, that no apology had been offered and that the defendant had not acceded to a request to give an undertaking not to broadcast again the TV programme complained of. The claimants’ solicitors also asserted that they were not in a position to assess the monetary offer without the disclosure of viewing figures for the programme. The defendant’s solicitors replied on 17 October. No apology was offered, but they did state that the defendant would be prepared to undertake not to broadcast again the segment of the programme that featured the claimants. In addition, viewing figures were provided. The case proceeded to trial. The claimants succeeded but failed to beat the amount offered in the Part 36 offer.
HELD: Costs to 18 October 2017 (date of expiry of Part 36 offer) – The claimants had succeeded in their claim and were entitled to their costs for this period (see paras 34, 36 of judgment).
Costs from 18 October to 8 November 2017 – The claimants were entitled to their costs for this period also. The defendant’s solicitors’ letter of 17 October 2017 amounted to an improved Part 36 offer such that the 21-day period started to run again. That was because the letter offered an undertaking, which addressed for the first time the non-monetary relief sought by the claimants, namely an injunction to restrain further broadcasting of the information complained of (para.38).
Costs after 8 November 2017 – The usual consequence of failing to beat a Part 36 offer should apply: the claimants should pay the defendant’s costs. The claimants had argued that the letter dated 27 September 2017 was not a valid Part 36 offer, as it contained an offer to settle their claims by paying them jointly the sum in question, whereas they had distinct individual claims. That submission could not be accepted. First, while the claimants’ claims were technically distinct individual claims, they were parallel claims made by a married couple arising from the same events. Although the claimants were not necessarily entitled to the same sum by way of damages, they presented a united front throughout the litigation and could have agreed the division of the sum between them. Thus, the mere fact that the sum was offered to them jointly did not mean that the offer was not made in accordance with CPR r.36.5. Second, the claimants were estopped from challenging the validity of the Part 36 offer. The letter dated 27 September 2017 stated that it was made in accordance with Part 36 and that it was intended to have the usual consequences of a Part 36 offer. It also invited the claimants’ solicitors to respond promptly if they thought that the offer was defective. No suggestion was made that the offer was defective. On the contrary, the claimants’ solicitors treated the offer as a valid Part 36 offer, Seeff v Ho  EWCA Civ 401 followed. The claimants had also argued that it would be unjust for the usual consequence of failing to beat a Part 36 offer to apply. In that respect, they relied on the defendant’s failure to disclose the viewing figures for the programme. However, the absence of that information did not justify the claimants’ failure to accept the sum offered. In any event, the information was disclosed in the letter of 17 October 2017. The claimants also relied on the defendant’s failure to offer an apology or to agree to a statement in open court being made. However, that did not justify the claimants’ failure to accept the improved offer. First, there was no settled practice that claimants in cases of misuse of private information were entitled to an apology or an agreed statement in open court. Second, the claimants could have applied to make a unilateral statement in open court. Third, damages for misuse of private information were compensatory, not vindicatory (paras 40-45, 47-48, 51-52).
Effect of defendant’s failure to file or serve costs budget – The defendant had failed to comply with a direction to file a costs budget. The usual consequence of that failure should apply: the defendant was only entitled to 50% of its assessed costs after 8 November 2017 (paras 53-56).
For the claimants: William Bennett , Felicity McMahon
For the defendant: Tom Blackburn
For the claimants: Hamlins LLP
For the defendant: Lee & Thompson LLP