The Daily Telegraph has had its application for indemnity costs – recovery of all, or nearly all, of its litigation outlay – rejected despite winning a defamation claim brought after it ran a story about the “world’s worst” professional tennis player.
Sportsman Robert Dee had his claim against the Telegraph struck out after it ran a story about him in April 2008 headed: ‘World’s worst tennis pro wins at last”.
Dee, a serial litigant, had previously sued a string of newspapers for disparaging his skills with a racket.
Solicitor-advocate David Price, for Telegraph Media Group, had argued that the publisher should receive its costs on the indemnity basis because Dee’s claim was handled in such a manner as to increase costs.
Price had also argued that Dee had also sought huge and unreasonable costs and used the danger of extra Conditional Fee Agreement liabilities in an attempt to pressure the defendant into settling the claim.
In addition to Price’s claim, David Sherborne, acting for Dee, argued that costs should be ‘issue-based’with TMG receiving only 60 per cent of its true costs.
But High Court judge Mrs Justice Sharp rejected both parties’ arguments.
She said: “It would be a rare case where both sides do not feel that the other has acted unreasonably, and unfortunately, an even rarer one, where there would not be at least a measure of truth in such a view.
“The question is whether there is something out of the ordinary, or which, as has been said, takes the case out of the norm. I do not consider there was in this case.”
What had occurred in relation to the pleadings and evidence was not sufficient to justify an indemnity costs order, she said, nor was the fact that Dee had pursued a claim which was eventually struck out.
Sharp added: “In this case both sides instructed lawyers to act under a CFA, and to that extent there was costs pressure on both sidesâ€¦
“Though the claimant’s costs estimate in the Allocation Questionnaire seems high, there is no evidence that unreasonable costs were ever actually sought from the defendant when attempts were made to settle (as they were), and it not seem to me to be a factor on its own which takes this case out of the norm.”
Sharp ruled the defendant was entitled to its costs of the action on a standard basis – which would be assessed if they could not be agreed.
She added: “I decline to make an issue-based order or reduce the proportion of costs the defendant should receive, as the claimant invites me to do.
“The defendant was the clear winner overall, and in my view is entitled to its costs in the normal way.”
Sharp struck out Dee’s defamation claim on 28 April, holding that the newspaper’s defence of justification was bound to succeed.
Dee had sued over a three-paragraph article which appeared on the newspaper’s front page on 23 April 23, 2008, under the headline “World’s worst tennis pro wins at last”, and carried a continuation line referring readers to the “full story” on the back page of the sports section.
Sharp held that both the front page and the sport pages articles had to be taken together, and that the newspaper’s justification defence was bound to succeed.