Supreme Court Orders Newspaper to Pay Indemnity Costs

The Supreme Court has today ordered that the newspaper Defendants/Appellants in the cases of Miller v ANL; Flood v TNL; Frost v MGN [2017] UKSC 33 pay the costs of their unsuccessful appeals. The newspapers had argued that they should only have to pay part of the costs because the Supreme Court had decided the case on the assumption that MGN v UK represented UK Law. This was consistent with the argument made in some quarters that the Supreme Court had decided that point, although that argument seemed at odds with the express words of the judgment.

The Claimants argued that the Supreme Court had made no decision as to whether or not MGN v UK should be incorporated into UK Law and that seeking costs on the basis that that issue had been “won” on either side was misconceived; although the costs decision was not accompanied by any reasons it is the inevitable inference that the Supreme Court agreed. All three newspapers were ordered to pay costs on the standard basis. Associated Newspapers fared somewhat worse.

Following the hearing before Mitting J (who ruled that the ATE premium and success fee were recoverable in full) Mr Miller offered, by letter dated 28 February 2016 to accept a sum equivalent to about 66% of the monies at stake. ANL criticised the making of the offer as inappropriate and made no counter-offer. Mr Miller accordingly sought indemnity costs from 21 March 2016 that date. He did so on the basis that such an order was “just” under the Supreme Court Rules r.46(1) and relied upon the same policy reasons that underpin CPR Parts 36, 44 & 47 (although none of those apply directly in the Supreme Court).

Again, although the decision is unreasoned, it seems clear that the Supreme Court agreed, rejecting the submission that Mr Miller’s consent to the “leap-frog” procedure and/or the public importance of the principle at stake made an order for indemnity costs inappropriate.

William McCormick QC, instructed by Razi Mireskandari and Martin Soames of Simons Muirhead & Burton acted for Mr Miller.