In the bad old days libel claimants sometimes used to be faced with a stubborn silence in response to a claim letter sent to a newspaper. Given the almost inevitable disparity of resources between the claimant and the defendant in those circumstances this placed the claimant in the invidious position of having no idea what (if any) defence would be deployed and what factual evidence there was to support it. Since one of the purposes of the Overriding Objective is “ensuring that parties are on an equal footing” it is vital that such tactics be outlawed. Once the pre-action protocols were established by the Civil Procedure Rules (CPR) it was therefore essential that they be enforced by the courts, especially where defamation actions are concerned.
In a libel action against the Sun conducted by Swan Turton on behalf of the ex-Eastenders star Chris Parker, Master Rose was asked to rule that the defendant newspaper had breached the pre-action protocol and thereby had caused costs to be incurred, and that those costs should be paid by the defendant on an indemnity basis. The application followed a consent order which settled the action providing for payment by the newspaper of £50,000 and the claimant’s costs on the standard basis. (Costs recovered on the standard basis are lower than those recovered on an indemnity basis.)
CPR Part C1-002 provides that the court will expect the parties to comply with the substance of the approved protocol. Sub-paragraph 2.1 says that the CPR enables the court to take into account “compliance or non-compliance with an applicable protocol when … making orders for costs”. This paragraph refers specifically to CPR Part 44.3(5)(a) which states that in exercising its discretion on the issue of costs the court will take into account “conduct before, as well as during the proceedings, and in particular the extent to which the parties followed their relevant pre-action protocol”.
Sub-paragraph 2.3 of CPR Part C1-002 provides that when non-compliance with the protocol “has led to the commencement of proceedings which might otherwise not have needed to have been commenced, or has led to costs being incurred in the proceedings which might otherwise have not been incurred”, the court may order “that the party at fault pay those costs on an indemnity basis”. Sub-paragraph 3.4 provides that the “court is likely to look at the effect of non-compliance on the other party when deciding whether to impose the sanctions”.
In his judgment Master Rose criticised the newspaper for having breached the pre-action protocol, for which no justification or explanation had been offered. He considered its actions sufficiently “out of the norm” to order that it pay the claimant’s costs on an indemnity basis up to and including the date of service of the defence. Such flagrant breaches of the protocol are fortunately rare nowadays. However, this judgment shows that they will attract the court’s sanction and that the threatened consequences of breaches of the protocol as set out in the CPR will actually be applied.