Kevin Bays reports on the implications of the Irving v Penguin Books decision on costs for future defamation cases

Kevin Bays is a partner at Davenport Lyons, solicitors for Penguin Books.

After the initial reporting of the Irving judgment, most press reports have been devoted to the issue of recovery of costs. Some commentators have asked whether Irving, if he could not afford to pay the defendant's costs if he lost, should have been allowed to bring, or continue with, a claim which many considered hopeless.

Although it is repugnant for a historian to manipulate historical evidence, it would be equally dangerous if the Irvings of this world had no right to bring a claim. Most attempts to limit an individual's ability to take defamation actions would probably fall foul of the Human Rights Act.

The court could have intervened, had we sought to dismiss the claim summarily.

However, this was never a real possibility. As usual in actions of this type, the vast majority of costs were incurred in obtaining, preparing and presenting the evidence necessary to prove the defence of justification.

The subject matter of the case and Irving's expertise meant expert evidence was essential to establish the charges made against him.

Penguin's junior barrister, Heather Rogers, moulded the material produced by the experts into the defendant's statement of defence.

At this stage, the weight of evidence against Irving was immense but to attempt to dismiss the claim would have been problematic. Cecily Engle and Helena Peacock, the lawyers at Penguin, were particularly concerned that had an unsuccessful attempt been made because the judge considered the issues should be aired at trial, Irving would have made inappropriate mileage out of this.

It is unlikely that the reforms introduced by the CPR and Defamation Act would have reduced the costs incurred by the defendants in this case. It was obviously not suitable for any summary procedure and unfortunately there was no alternative but to spend a great deal of time and money to establish the defence of justification.

It may be that, in the future, costs could be saved by an alteration to the rules of evidence or by requiring the claimant to disclose information and documents to a much greater extent than at present.

However, while the Irving case may be unusual or even unique, it is envisaged that it will not be the last libel action that will prove to be very expensive for the defendant or the claimant who has the ability to pay.