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The Master of the Rolls Lord Dyson is expected to decide whether the former chief whip, Andrew Mitchell MP, can break a costs order restricting his legal spend on a defamation claim against The Sun to £2,000.
Mitchell was told in June that his legal spend for a defamation claim against The Sun publisher News Group Newspapers (NGN) would be restricted to court fees only (7 August 2013). This came after his lawyer, Atkins Thomson partner Graham Atkins, failed to submit a costs budget to the court seven days before a case management conference was scheduled.
Master McCloud refused to lift the order in August despite protestations from the firm that it was under-resourced compared with Simons Muirhead & Burton, which had been instructed by NGN.
The case has been expedited to the Court of Appeal (CoA) and is set to be heard in November. Dyson MR will chair a panel of three on the case, although the remaining two Lord Justices are yet to be named.
NGN has brought in heavyweight costs silk Nicholas Bacon QC to defend the appeal. Bacon will lead Roger Mallelieu of 4 New Square, who led the case during the summer. The pair have been instructed by Simons Muirhead Burton partner Louis Charalambous for NGN.
Mitchell’s representation is unchanged, with Atkins instructing costs silk Simon Browne QC of Temple Garden Chambers to take the appeal forward.
It will be the first time that the CoA has looked specifically at a costs budget in a post-Jackson environment. The CPR committee, which implemented the Jackson reforms, 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.
This will be a closely-watched dispute, not only because of the politics involved. The outcome of the ruling is expected to lay the blueprint for how costs budgets are handled in defamation cases going forward.
The case was launched in March after the tabloid splashed claims that Mitchell had sworn at a police officer at the gates to Downing Street across its front page in September last year.