Neutral Citation Number: [2012] EWHC 2224 (QB)
Case No: TLQ/12/0108
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 31/07/2012

Before :

THE HON. MRS JUSTICE NICOLA DAVIES DBE
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Between :

	AAA	Claimant	
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	Associated Newspapers Ltd	Defendant	

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Mr James Price QC and Mr William Bennett (instructed by Collyer Bristow LLP) for the Claimant
Mr Desmond Browne QC and Ms Alexandra Marzec (instructed by Reynolds Porter Chamberlain LLP) for the Defendant

Hearing dates: 25 July 2012 
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Judgment on Costs

Mrs Justice Nicola Davies: 

1.	This is an application for costs made on behalf of both parties.  The facts of the case are set out in the judgment.  In the action the claimant sought the following relief:
i)	damages for breach of privacy against the defendant in respect of the behaviour of journalists and photographers acting as its agents between identified dates who laid siege to the claimant’s family’s homes such as to interfere with her family life;
ii)	damages for breach of privacy against the defendant in respect of the publication of her photograph and articles which contain speculation as to the identity of her father;
iii)	an injunction to restrain the defendant by its servants or agents or otherwise howsoever from further publishing or causing or permitting the publication of information of:
a)	the claimant’s photograph or her name, home address, educational establishment, any particulars reasonably likely to lead to her identification in conjunction with information concerning the child’s paternity; and/or
b)	the claimant’s photograph.
2.	The claimant failed in her application for damages for the siege and in her application for damages for breach of privacy in respect of the publication of articles.  She succeeded in her claim arising from the publication of three photographs by the defendant and was awarded damages in the sum of £15,000.  The claim for the injunction did not succeed.  However, prior to and during the trial, the defendant offered to the court undertakings in respect of the future publication of photographs and these were accepted by the court.
3.	Prior to trial, open correspondence between the parties took place in an attempt to settle the claim.  In an open letter dated 25 October 2011 the defendant stated that as regards the photograph of the claimant:
“It is not our client’s editorial policy to publish photographs of children without good reason unless consent has been given on behalf of the child’s parents or they had made clear by their conduct that they are content for their children to be photographed. … Our client is therefore happy to confirm that it has no intention of publishing photographs of (the claimant) while she is a child without parental consent.”
The undertaking was subject to provisos essentially relating to photographs taken at public events.  
4.	In a reply dated 3 November 2011, solicitors acting on behalf of the claimant referred to a letter dated 22 July 2010 in which the defendant had stated:
“If any photographs of your client become available we will of course adhere to the PCC Code.”
The letter of 3 November 2011 stated that the defendant had broken its promise and breached the PCC Code by republishing the same photograph of which the claimant had complained on 16 July 2010 on 3 February 2011.  The claimant did not accept the offer as it said that experience had shown that the defendant could not be relied upon to keep its word.  In the same letter, the claimant’s solicitors stated that what the claimant was seeking was an injunction in the terms outlined in the Particulars of Claim and that the key issues were the identity of the claimant’s father which was a sensitive and private matter.  
5.	On 9 March 2012 the defendant’s solicitors wrote to the claimant’s solicitors.  They referred to their letter of 25 October 2011 and stated that it was deliberately written as an open letter in order to enter into constructive discussion with the aim of resolving the dispute.  In what was described as another attempt to address the claimant’s litigation friend’s concerns in a satisfactory manner, they offered formal contractual undertakings not to publish photographs again with relevant provisos.  Further, in what was described as a mark of goodwill and in order to facilitate early settlement, the defendant offered the sum of £2,500 in damages to the claimant.  
6.	By a reply dated 5 April 2012, the claimant’s solicitors responded, as to the photograph they stated:
“The undertakings offered regarding photographs of AAA in your letter of 9 March are acceptable as part of an overall settlement.”
As to the sum of £2,500 damages that was described as nominal and unrealistic, however, in order to avoid further litigation, the claimant would be prepared to accept it as part of an overall settlement without prejudice as to its position at a subsequent trial.  The letter identified as the clear issue between the parties, information or speculation about the claimant’s paternity.  In a second letter written on the same day, the claimant identified the terms of the undertaking which it would accept in respect of photographs.  
7.	The defendant replied in a letter dated 16 May 2012.  The gravamen of the letter indicates that there was agreement as to the photographs and damages, the one issue still outstanding being information or speculation about the claimant’s paternity.  In that letter and, in what was described as an attempt to reach resolution, the defendant offered to undertake on a contractual basis not to publish information or speculation about AAA’s paternity or her appearance or other private information in connection with her supposed paternity subject to certain provisos.
8.	Further correspondence ensued and in a letter dated 29 May 2012 the defendant’s solicitors confirmed to the claimant’s solicitors that there appeared to be no issue between them as to publication of any future photographs of the claimant nor upon the issue of damages.  The offer of the contractual undertaking not to publish the claimant’s name or identifiable details was repeated. 
9.	By a letter dated 1 June 2012, written by the claimant’s solicitors, it was agreed there were no outstanding issues between the parties as to photographs.   The issue of the contractual undertakings relating to information or speculation about the claimant’s paternity was raised, the point being made that those acting on behalf of the claimant would need proper assurance that a contractual undertaking would not be ignored on the footing that the penalty for breach of that undertaking was a nominal sum.  A draft order was appended, but settlement was not achieved.  
10.	It is the defendant’s case that it should have all its costs from 3 November 2011 (the date of the claimant’s solicitor’s letter refusing the defendant’s proposal regarding photographs) and a proportion of their costs up to that date on the basis that it succeeded on the majority of the pleaded claim, in particular those parts which turned on oral evidence.  The defendant relies not only on the outcome of the claim but the way the claim was conducted on the claimant’s behalf including the allegation of a siege for which there was not proper or sufficient evidence and adducing evidence in the form of a witness statement from the claimant’s nanny which, it is said, the claimant’s solicitors knew was not evidence of the witness.  Put shortly, what is said is that save for the publication of the photograph and damages awarded, the claimant lost on every aspect of her claim.  
11.	The claimant, who funded these proceedings by means of a conditional fee agreement, relies upon the provisions of CPR 44.3(2) which provides that the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party.  CPR 44.3(4) requires the court to have regard to all the circumstances including the conduct of all parties, whether a party has succeeded on part of his case, even if he has not been wholly successful, and any admissible offer to settle.  CPR 44.3(5) contains provisions about the conduct of the parties including (b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue.  It is conceded that the claimant has not been wholly successful but contended that she has obtained a substantial part of the relief sought in the proceedings, the damages recovered being “six fold” the defendant’s pre-trial offer.  Specifically, the point is made that if the photographs had been the sole issue at trial this would have involved the court in decisions as to the claimant’s Article 8 rights and the defendant’s Article 10 rights.
12.	A substantial proportion of the written and oral evidence at trial was directed at the allegation of the siege.  Upon this topic, the claimant not only failed upon the facts but her counsel has apologised for the manner in which evidence was prepared, the conduct at issue being that of the claimant’s solicitor (paragraph 25 of the judgment).  In their submissions upon costs, both counsel approached the conduct issue on the basis that it should be reflected as part of the general order apportioning costs.
13.	In summary, the position is this:
i)	the claimant has succeeded upon just one part of her original claim;
ii)	the amount of damages awarded to the claimant considerably exceeds the offer of £2,500 made by the defendant in correspondence;
iii)	the undertakings as to the photographs now accepted by the court were offered as contractual undertakings in the defendant’s letter dated 9 March 2012 and accepted by the claimant in their letter dated 5 April 2012.
The claimant had two witnesses to the alleged siege in London prior to the date of publication of the first article, the claimant’s mother and the nanny.  The nanny’s evidence was a significant part of this aspect of the claimant’s case, and weight had to be attached to it by any party assessing the relevant evidence.  I do not accept the claimant’s contention that the implications resulting from the solicitor’s conduct are confined to the preparation of the nanny’s witness statement.
14.	I accept the claimant’s argument that if the sole issue at trial had been the photograph, this would have entailed evidence and submissions as to the balancing exercise as between the competing Article 8 and Article 10 rights.  That said, the sticking point in correspondence was not the photographs but the issue of the claimant’s paternity upon which the claimant failed.  I assess damages upon the basis that the defendant has succeeded in defeating a substantial part of the claim as originally sought.  Further, I take account of the conduct of the claimant’s solicitors which can only have enhanced the weight to be attached to one aspect of the evidence as to the siege.  
15.	I order that the claimant pay 80% of the defendant’s total costs, such costs to be subject to detailed assessment if not agreed.