Costs in the Prince Harry case against the Daily Mail should be assessed on an indemnity basis because of the claimants’ conduct of the litigation, the High Court heard today.
Earlier this month claims of unlawful information gathering brought by seven claimants including the Duke of Sussex, Baroness Lawrence and Sir Elton John, were dismissed by Mr Justice Nicklin following an 11-week trial.
Associated Newspapers now seeks its costs on an indemnity basis arguing the claim was a ‘long way from ordinary and reasonable litigation’, Antony White KC, for Associated Newspapers, said.
The publisher seeks a payment on account of £9,950,624.37 – which is 65% of Associated Newspaper’s incurred pre-budgeted costs (£5,281,497.27) and 90% of Associated’s budgeted costs (£4,669,127.10). Associated has, according to written arguments, ‘exceeded its approved budget by over £18.6m with its total costs amounting to an "eye-watering" £34,481,622.54'.
The ‘case proceeded to trial with allegations of that seriousness [including criminal misconduct] against 56 individuals’, White said. ‘The court should step back and ask why the net was cast so wide. These proceedings were brought as the vanguard or first wave which was intended to be a banquet of litigation. It was expressly pursued on the basis that even if the full panoply of allegations were not established, it would be catastrophic for Associated even if some allegations succeeded. That is the casting of the net deliberately wide in the hope of catching some fish.’
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In written submissions, White added: ‘The claimants’ individual cases were pursued for the most part without any supporting documentary evidence and on the barest inferential basis. The claimants failed to reassess the viability of their claims following Associated’s extensive disclosure, but rather sought to double down, applying (largely unsuccessfully) to amend their [pleadings of case] to introduce further wide-ranging allegations of impropriety.
‘The circumstances of the case, including the conduct of the claimants and those in their camp…take this case well outside of the norm.’
The court was told the ‘birth of the litigation’ was part of a strategy of which campaigners Dr Evan Harris and Graham Johnson aimed to show that Associated had misled the Leveson Inquiry into press behaviour and ‘further their campaign’ for the government to implement the second part of the inquiry.
White said the claimants ‘knew this was an all-out attack on Associated and were at pains to emphasise there were others that could join the bandwagon’. The claims were described as ‘at best speculative.’
White added: ‘This is no ordinary and reasonable litigation properly advanced by solicitors intent on seeking justice. The lawyers and the research team have driven the litigation. The lawyers chose to put those allegations [of unlawful information gathering] in to broaden the scope and seriousness of the litigation.’
White said the litigation was ‘not responsible’ and ‘wholly unreasonable’ and reminded Mr Justice Nicklin of what he said in his 436-page judgment.
The two-day hearing continues.
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