Costs success for Banksy over 'unreasonable' libel claim

A company that brought a libel claim against graffiti artist Banksy has been ordered to pay his costs after the judge found the case to be ‘unreasonable to a high degree’.

Full Colour Black Limited, trading as Brandalised, brought a claim against the anonymous artist and Pest Control Office Limited, a company which describes itself as Banksy's 'parent/legal guardian'. It later filed a notice of discontinuance.

Banksy and Pest Control claimed FCB had used the proceedings ‘to threaten to expose the real identity of [Banksy] as part of a strategy to obtain a commercial agreement between FCB and the defendants enabling FCB to continue commercial exploitation of Banksy’s artworks’.

In Full Colour Black Limited v The artist known as “Banksy” & Anor Mr Justice Nicklin noted that ‘FCB’s unauthorised exploitation of Banksy’s artwork has led to a history of clashes between FCB and the defendants stretching back over a decade’. 

FCB alleged an Instagram post by Banksy showing a photograph of a window display of the Guess store on Regent Street, London was defamatory. The display included an image from Banksy’s Flower Thrower and ‘prominently displayed the wording “GUESS X BRANDALISED WITH GRAFFITI BY BANKSY” applied to the window itself’.

Banksy added a caption which said: ‘Attention all shoplifters. Please go to GUESS on Regent Street. They’ve helped themselves to my artwork without asking, how can it be wrong for you to do the same to their clothes?’

FCB later discontinued its libel claim against both Banksy and Pest Control. The usual order following a discontinuance is that the party bringing the case is liable for the defendants' costs. Banksy and Pest Control made applications for costs on the indemnity basis.

Ordering FCB pay the defendants’ costs on the indemnity basis, the judge was ‘satisfied that this case falls outside the norm’. He added: ‘On the material before the court, the defamation claim was, viewed objectively, without any real prospect of success.

‘The critical feature which explains why such a claim was nonetheless pursued, and what takes the case outside the norm, is that the proceedings were deployed to exert pressure relying upon Banksy’s well-known concern to preserve his anonymity as central to his artistic expression. 

‘FCB deliberately exposed Banksy to the risk inherent in the proceedings that his anonymity might be jeopardised, and that this was intended to exert pressure rather than to secure remedies which could not adequately be obtained against the second defendant alone.’

Ordering that FCB must pay the defendants' costs from 10 October 2023, the judge said: ‘I am satisfied that the proceedings were pursued in a manner and for purposes which were unreasonable to a high degree and which take the case outside the norm.’