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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Baron v Housmans Bookshop Ltd [2002] EWCA Civ 1877 (4 December 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1877.html Cite as: [2002] EWCA Civ 1877

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
THE QUEEN'S BENCH DIVISION
(Mr Justice Morland)

		Royal Courts of Justice Strand London, WC2 Wednesday, 4th December 2002

Wednesday, 4th December 2002

1. LORD JUSTICE LATHAM: This is an application for permission to appeal against the order for costs made by Morland J on 2nd July 2002 when at the end of a two day libel trial in which the applicant claimant obtained a verdict from the jury in the sum of £14, he made no order for costs up to 5.00 pm on Thursday 20th June 2002 but thereafter the costs of the case to be the defendants on a standard basis.
2. The claim that had been made was for a libel said to have been contained in a pamphlet, entitled "At War with the Universe", which was published by an organisation called "Notes from the Borderland" in October 1999. The pamphlet contained, on page 31 of 135 pages, the following sentence:

"Leaving aside the content-free whinings of homophobic plagiarist Alexander Baron, there has only been one attempt to defend Hepple's past..."

It was a claim which, as can be seen from the jury's verdict, was considered to be one which justified, in effect, only nominal damages.

3. The judge in giving his reasons in fact for refusing to allow permission to appeal said the following:

"The verdict of the jury was amply justified on the evidence. The claimant, a `right wing' author, sued the Defendants, a `radical' book shop which had on sale from April to October 2000 a pamphlet containing 135 pages which on page 31 had a single sentence which defamed the claimant. There were 7 copies of the pamphlet on sale between April and October 2000. The defence was `innocent dissemination' under Section 1 of the Defamation Act 1996."

There are no other reasons given by the judge for the order that he made, but it is clear that it was based upon the fact that he took a clear view as to the appropriateness of the proceedings, as inferentially had the jury.

4. There had been one letter by way of offer to resolve the matter from the defendants (30th November 2000) in which there was a proposal that the defendants would publish in Peace News a notice in terms of a letter which had been drafted by the company secretary of the defendants and would be prepared to contribute £350 towards the costs. There was no other offer made until solicitors came on the scene acting for the defendants and wrote a letter of 18th June 2002, headed "Without prejudice save as to costs", and made an offer of settlement in the sum of £1,500 damages plus £1,000 costs. The order made by the judge clearly reflected his view that the action should have been brought firmly to an end by reason of that particular offer.
5. It is submitted, however, on behalf of the applicant that in making the order that he did the judge, in effect, equated the letter to a Part 36 offer and in so doing he erred in law. We have been referred to one authority which is, it is said, directly in point.
6. In Amber v Stacey [2001] 2 All ER page 88, this court held that the judge in that particular case had indeed erred in equating an informal offer to a Part 36 payment. The passage which Mr Davis on behalf of the applicant relies upon in particular is the passage in the judgment of Sir Anthony Evans at page 95 J where he said:

"I am persuaded in these circumstances that the recorder erred in law when he made the same costs order as he would have done if the defendant had made the payment in and had succeeded on all issues at the trial."

The important words in that particular passage are the words "in these circumstances". The learned judge cannot have intended to indicate that the general discretion as to costs contained in Part 44(3) of the CPR is in any way fettered in circumstances where there has not been but could have been a Part 36 offer. The wording of Part 44(3), (4) and (5) sets out the considerations which the court must take into consideration, and the question of a Part 36 offer is only one of a number of elements which the court has to weigh in the balance when asked to exercise its discretion as to costs.

7. In the present case this judge, who is a most experienced judge, dealing with a subject matter, namely libel, of which he is only too familiar, took the view that he did without doubt, having regard to the nature of the claim and the way it had been pursued by the applicant and, in our judgment, was perfectly entitled in those circumstances to take the view that the letter written by the defendant's solicitors should have brought that action to a prompt end and that the order that he made in those circumstances properly reflected a view that he was entitled to hold on the facts of this case.
8. I would therefore refuse this application for permission to appeal.
9. MR JUSTICE LAWRENCE COLLINS: I agree.
Order: Application refused.