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Substantially successful defendants are awarded costs of motion that was reasonable and necessary to pursue

By: James Cross BL

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High Court, having found that the plaintiff was not entitled to convert his action for damages for defamation into an action for a free standing correction order, awards the defendants the costs of the motion but places a stay on execution on the order pending the determination of the proceedings, on the grounds that: it was reasonable and necessary for the defendants to raise, pursue and contest the issue; although the defendants did not obtain an order in the terms sought, they were substantially successful on the issue; and the plaintiff, by taking and persisting in the position which he took, has added to the costs of both sides so that it would be unjust to expose the defendants to the risk that they would have to bear that additional burden if the plaintiff succeeds at trial.

Costs of legal proceedings – High Court gave judgment striking out proceedings on the grounds that the proceedings are frivolous and vexatious and bound to fail – Court found that while the plaintiff was not entitled to convert his action for damages for defamation into an action for a free standing correction order - back to the position as it stood immediately before – relevant legal principles – defendants seek their costs – plaintiff seeks to have the costs reserved – defendants acknowledge that they were not entirely successful in their application so that they are not “entitled” to an award of costs - it was not only reasonable but necessary for the defendants to raise, pursue and contest the issue of the effect on the progress of the action of the letter - plaintiff’s steadfast position was that he was entitled to restructure the case by writing the letter which he did - the outcome of the motion was a finding that the plaintiff was not entitled to do what he attempted to do, it could fairly be said that he was unsuccessful - the substance of the issue between the parties was the plaintiff’s entitlement to move the goalposts and that on that issue it was the defendants who prevailed - real issue in controversy on the motion was whether the plaintiff was entitled to prosecute the action otherwise than as an action for damages for defamation - accept the defendants’ submission that this was an issue which needed to be resolved one way or the other before the action could progress and in particular to allow the parties to know the basis upon which the action would be tried - outcome of the motion is that the plaintiff is obliged to do what the defendants contended he was obliged to do and what the insisted he was not obliged to do - satisfied that it was reasonable and necessary for the defendants to raise, pursue and contest the issue as to the basis upon which the action might be prosecuted and that although the defendants did not obtain an order in the terms sought, they were substantially successful on the issue - plaintiff, by taking and persisting in the position which he took, has added to the costs of both sides -not just to expose the defendants to the risk that they would have to bear that additional burden if the plaintiff succeeds at trial – costs awarded to the defendant with a stay on execution pending the determination of the action –

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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