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Costs: Junejo v New Vision TV Ltd [2021] EWHC 449 (QB) - Harry Peto, Temple Garden Chambers

09/03/21. The Defendant sought an order striking out the Claimant’s libel claim pursuant to CPR 3.4(2)(c). the libel claim arises from statements broadcast by the Defendant to the effect that the Claimant, a successful businessperson, was guilty of fraud, theft and money laundering. The basis for the application was that the Claimant failed to comply with an order that he must make an interim payment to the Defendant of £15,000 in respect of costs, the Defendant having been partly successful in a preliminary issues trial.

The Claimant had requested additional time to pay on account of his struggling financially, making an offer to pay by instalments which the Defendant rejected. The Claimant did not make the payments, paying £2,000 shortly before this hearing and setting out their financial difficulties.

The Legal Framework

The Defendant relied on the principles set out in Michael Wilson and Partners Ltd v Sinclair and others [2017] EWHC 2424 (Comm):

1. The imposition of a sanction for non-payment of a costs order involves the exercise of discretion pursuant to the court’s inherent jurisdiction.

2. The court should bear in mind the policy behind the imposition of costs orders made payable before the end of litigation, namely, to discourage irresponsible interlocutory applications or resistance to successful interlocutory applications.

3. Consideration must be given to all the circumstances, e.g. Article 6 ECHR, alternative means of enforcing the costs order, whether the order was made in the face of a submission that its being payable before the end of litigation was inappropriate, etc.

4. A submission that a party lacks the means to pay and so a debarring order would be a denial of justice must be supported by cogent evidence.

5. Where the defaulting party does not adduce sufficient evidence of impecuniosity, the court ought generally to require payment of the costs order as the price for being allowed to continue with the proceedings unless there are strong reasons for not so ordering.

6. If the court decides a debarring order should be made, an unless order should be made unless there are strong reasons for imposing an immediate order.

The Claimant submitted that strike out following a failure to comply with an order for payment of money which is beyond their means may amount to a breach of Article 6 ECHR.

The Defendant’s Submissions

Four points were made. First, the ordinary CPR policy of “pay-as-you-go” in terms of costs applies...

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