Senior Master Cook says it is “imperative” they understand the consequences of how case is being conducted
The High Court ruled this week that the seven public figures, including Prince Harry, suing the owner of the Daily Mail, will be jointly and severally liable for adverse common costs of the case if they lose.
Though this was a decision usually made at the end of a case, it was “imperative” that the claimants “have the clearest possible understanding as to the consequences of the way in which this litigation is being conducted”, according to Senior Master Cook, who said his ruling was supported by Mr Justice Nicklin, the judge overseeing the case.
In Baroness Lawrence of Clarendon & Ors v Associated Newspapers Ltd (Re Costs) [2025] EWHC 3207 (KB), the seven claimants – whose claims were issued separately but are being tried together – are Baroness Lawrence, Elizabeth Hurley, Sir Elton John, David Furnish, Sir Simon Hughes, Prince Harry and Sadie Frost. They allege that their private information has been misused by the defendant (Baroness Lawrence also claims for breach of confidence).
Earlier this year, the court slashed the proposed budgets and the latest ruling concerned two costs issues raised at last month’s fourth case management conference (CMC).
The defendant sought an order that, in the event each or any of the claimants was ordered to pay it costs, they should be jointly and severally liable to pay the previously defined common costs.
At a CMC a year ago, Senior Master Cook imported the costs-sharing provisions of group litigation orders to require the claimants to file budgets separating their individual and common costs. This allowed the court to approve a single budget for the claimants and for the defendant in respect of the remaining steps in the case.
The resulting order provided for the internal sharing of common costs between the claimants but did not address the claimants’ liability for adverse costs in respect of those common costs.
The defendant said it sought to determine the question of liability for adverse costs at this early stage for two reasons: the claimants’ solicitors had sought the defendant’s agreement to their incurring several liability for any adverse costs, and the claimants had “inflated the potential adverse costs risk to the defendant by the acquisition of ATE [after-the-event] insurance without seeking the court’s determination on the issue of several liability”.
The claimants’ counsel explained that they had reassessed their potential costs liability following the making of the costs management order, in the region of £14m.
The requirement for ATE insurance had been approached on a several basis and he said that, if a determination was made now that each claimant should face a potential joint and several liability for the defendant’s common costs, then the level of indemnity each would need could be massively increased “and raised the spectre of additional ATE insurance being required at even greater cost”.
Senior Master Cook said it was a well-established principle that each party in multi-party actions was liable jointly with each other for the whole of the reasonable costs of their common claim or defence, but only severally for the individual costs of their claim, but that the court should pay particular attention to the nature of the claim when considering whether to order joint or several liability for costs.
Here, the claimants’ cases “depend not merely on them bringing the same central case based on the similar fact and generic cases, but also on each individual claimants’ own specific case being said to cross support each of the other claimants’ cases and the collective case as a whole”.
He explained: “In our judgment it is imperative that the parties and in particular the individual claimants have the clearest possible understanding as to the consequences of the way in which this litigation is being conducted.
“If that means the individual claimants need to reassess their ATE cover that can only be in their own best interests. It is particularly important that this issue is addressed at this point as substantial costs have already been incurred and the parties will soon be incurring more substantial costs in preparation for the trial next year.
“The fact that costs should ordinarily be determined at the end of the case is not a good reason for us to decline to take this step now. In this regard it is important to note that the order will not tie the court’s hands if at a later point the circumstances justify such a departure.”
The court went on to consider applications by both sides to vary aspects of their budgets. Senior Master Cook noted: “One further point which should be properly understood by any party involved in costs management and particularly applications to vary a budget; is that if agreement cannot be reached on a figure for a particular phase of the budget, the court is not bound by any offer which has been made. The court retains a complete discretion as to the sum which it approves.”
After considering the various changes, he observed that, while the November 2024 case management order was intended to incorporate a costs management order, a proper CMO had not in fact been drafted.
CPR 3.15(2) allows the court to make a CMO at any time and Master Cook concluded: “It is my experience that parties seldom draft proper or effective costs management orders notwithstanding the guidance contained paragraph 13 of my Guidance Note on Cost Management Hearings in the King’s Bench Division at annex 8 of the King’s Bench Guide.
“We would be grateful if the November case management order could be amended appropriately.”