CoA rejects ‘plebgate’ appeal, restricts libel costs budget to £2,000

The Court of Appeal (CoA) has rejected a landmark appeal by Atkins Thomson for the former chief whip Andrew Mitchell MP, prohibiting him from exceeding his set costs budget of £2,000.

In what has been one of the most eagerly-anticipated decisions of the year, the Master of the Rolls Lord Dyson said Mitchell would not be able to quash a High Court order that limited his legal spend.

The Lawyer first revealed that the costs budget had been limited to the costs of filing the claim and any court fees in August (7 August 2013).

The appeal was seen as a test case for libel and defamation proceedings in the post Jackson era. The CoA was asked to decide what measures could be taken against legal teams should they not comply with case management timetables.

In rejecting the appeal the court has shown it will take a tough stance by imposing spending restrictions if firms fail to comply with the timetable.

Costs lawyer Sue Nash said: “Today’s judgment is likely to make solicitors more than a little twitchy, but the good news is that it provides much needed guidance at a time of upheaval for the profession.

“Compliance with the rules and court timetables is key and solicitors can no longer be in any doubt about the need to do their homework around costs budgeting.”

The CoA issued guidance on the approach litigators should take in applying the new civil procedure rule 3.9. Under the guidance lawyers will need to consider the need for litigation to be conducted efficiently and at proportionate cost, and to enforce compliance with rules, practice directions and court orders.

It added that such principles should now be regarded as considerations of paramount importance.

Atkins Thomson partner Graham Atkins launched the libel case against The Sun publishers News Group Newspapers in March. The firm was instructed on a conditional fee basis. 

The case was launched after the tabloid splashed claims that Mitchell had sworn at a police officer at the gates to Downing Street across its front page last September.

The firm was told to file a costs budget to the court at least seven days ahead of a case management conference in June. However, when Mitchell’s advisers failed to get the budget to the court on time, the court slapped him with an order restricting his legal spend.

In August Master McCloud refused to lift the order, stating that all parties were under an obligation to abide by the regime as set down by Lord Justice Jackson and implemented on 1 April 2013.

She said: “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.”

Dyson MR agreed with Master McCloud’s decision, saying in today’s judgment: “The Master did not misdirect herself in any material respect or reach a conclusion which was not open to her. We acknowledge that it was a robust decision. She was, however, right to focus on the essential elements of the post-Jackson regime. The defaults by the claimant’s solicitors were not minor or trivial and there was no good excuse for them. They resulted in an abortive costs budgeting hearing and an adjournment which had serious consequences for other litigants. Although it seems harsh in the individual case of Mr Mitchell’s claim, if we were to overturn the decision to refuse relief, it is inevitable that the attempt to achieve a change in culture would receive a major setback.

“In the result, we hope that our decision will send out a clear message. If it does, we are confident that, in time, legal representatives will become more efficient and will routinely comply with rules, practice directions and orders. If this happens, then we would expect that satellite litigation of this kind, which is so expensive and damaging to the civil justice system, will become a thing of the past.”

Yesterday (26 November) the Crown Prosecution Service charged one officer, PC Keith Wallis, after he allegedly wrote to his MP claiming to have witnessed the incident.

The legal line-up:

For the appellant, Andrew Mitchell MP

Atkins Thomson partner Graham Atkins, instructing Temple Garden Chambers’ Simon Browne QC and Richard Wilkinson

For the respondent, News Group Newspapers

Simons Muirhead & Burton partner Louis Charalambous, instructing 4 New Square’s Nicholas Bacon QC and Roger Mallalieu