How The Sun is helping shape the Jackson era

Costs budgeting in libel cases is being tested through Andrew Mitchell’s ‘Plebgate’ High Court battle against The Sun

The Sun

Could the Plebgate debacle end up creating new law?

Andrew Mitchell MP must have thought he had a relatively straightforward libel case against News Group Newspapers (NGN). The former chief whip turned to Atkins Thomson partner Graham Atkins to launch his case against The Sun publishers New Group Newspapers in March. This came after the tabloid last September splashed claims that Mitchell had sworn at a police officer at the gates to Downing Street across its front page.

Mitchell later resigned as chief whip whilst always denying the claims. His libel claim is denied by NGN, which has instructed Simons Muirhead & Burton partner Louis Charalambous to fight the case on the grounds that the story was in the public interest and true.

Before the case can be heard, however, there is the thorny and new matter of costs budgeting before the courts.

Under the Jackson reforms, implemented on 1 April, all libel cases will now be required to submit to the costs budget regime. This means ahead of any case being heard in full lawyers representing the parties must set out to the court what they will spend. If they do not the sitting judge has the power to impose sanction.

So when Mitchell’s legal team failed to get a costs budget to the court seven days before case management conference (CMC) the court also had the option to impose sanctions.

Those sanctions, which were decided by the judge in June (18 June), mean that Mitchell is restricted “to a budget consisting to the applicable court fees for his claim”, the latest ruling states. 

Last week Mitchell’s lawyers returned to court to implore the judge, Master McCloud, for relief from the sanctions. While 5RB’s David Sherborne is instructed to lead the libel case, Atkins turned instead to costs specialist Simon Browne QC to lead the challenge.

NGN, meanwhile, turned to 4 New Square’s Roger Mallelieu to respond.

It is the first time that the court has looked specifically at costs budget in a post Jackson environment. The CPR committee had deliberately stayed away from being prescriptive in how the policy should be interpreted, leaving it to the courts to decide through case law how best to proceed.

According to one source it is no coincidence that such a high profile dispute has been made an example of.

Master McCloud delivered a no holds barred ruling, dismissing the application and adopting what many will see as being s stringent pro-Jackson stance.

Rejecting the application the judge said: “There is no evidence before me of particular prejudice to Mr Mitchell arising from my order: it would be for him to demonstrate that and it would be wrong of me to make assumptions about the wording of his CFA agreement with his solicitors which may or may not mean that my sanction affects him financially or in terms of legal representation.

“Even if it did affect him financially and as to representation, there are many claimants who manage without lawyers and it could not be said that he would be denied access to a court more than is the case for others if they have to represent themselves.”

A particular sticking point for the judge was the fact that the claimant lawyers knew what was expected of them under the Jackson regime.

“The view I have taken is that the parties were well aware that this was a case for which budgeting,” the ruling continued.

Browne had attempted to persuade the court to be lenient toward the claimant lawyers. According to the court order Atkins Thomson is a two partner firm compared with heavyweights Simons Muirhead & Burton. Two of three trainees at the firm were on maternity leave and a senior associate, who would normally deal with such issues, has recently left the firm. Furthermore, the second partner Mark Thomson is currently leading a raft of phone hacking claims against News International.

Whilst sympathising the judge refused to budge. Her ruling provides the basis for the libel costs budgeting regime going forward.

She highlights: “Budgeting is something which all solicitors by now ought to know is intended to be integral to the process from the start, and it ought not to be especially onerous to prepare a final budget for a CMC even at relatively short notice if proper planning has been done.”

According to Practico managing director Andy Ellis: ”This decision was informed by full argument, it is undoubtedly on-message and unlike Henry [Henry v News Group Newspapers] is subject to the new CPR 3.9 – which is why there are bound to be a few shock waves.”

Mitchell’s lawyers will look to elevate the case to the Court of Appeal. This libel battle was always going to be high profile in political circles but it will also provide the blueprint for the costs budgeting era.