Neutral Citation Number: [2012] EWHC 3278 (QB)
Case No: HQ08X01759
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20/11/2012

Before :

THE HONOURABLE MR JUSTICE TUGENDHAT
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Between :

	(1)CRAIG JOSEPH (2) JASON JOSEPH  (3)ANTHONY RAYMOND	Claimants	
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	(1) JASON SPILLER (2) 1311 EVENTS LIMITED	Defendants	

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William Bennett (instructed by Pattinson & Brewer) for the Claimants
David Price QC and Korieh Duodu (of David Price Solicitors and Advocates) for the Defendants

Hearing date: 15 November 2012
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Judgment

Mr Justice Tugendhat : 

1.	On 26 October I handed down my judgment in this matter (Joseph v Spiller [2012] EWHC 2958 (QB) “my judgment”). I stated that the Claimants would receive only nominal damages, by which I meant 1p. This judgment is to determine the order for costs. It should be read in conjunction with my judgment.
2.	Mr Bennett submits that the Claimants have won on liability and so should receive 90% of their costs. He argues that they have already been penalised for the conduct of Mr Joseph in advancing a fraudulent claim for special damages in the sum of £1,000 by being deprived of meaningful general damages (which would have exceeded £1,000 by some margin) and by not being awarded the £850 special damages which was uncontested. They ought not to be penalised twice. The costs should be reduced to take account of the fraudulent claim for £1,000 special damages, but for nothing else. So he arrives at the figure of 90%.
3.	Mr Price submits that this is not the way that the matter proceeded at the trial. He did not ask that the Claimants be penalised by being deprived of general damages. His case was that in the course of the trial Mr Joseph was publicly found to have carried on a sophisticated deception of the court (paras [155] to[160]), which has destroyed his reputation. The Claimants are not the successful party: an award of nominal damages is a failure, not a success. The cure has been worse than the disease. 
4.	Mr Price did not cite authority for the proposition that a claimant’s conduct at the trial is relevant to the assessment of damages for libel. But at this hearing he cites Reynolds v Times Newspapers Ltd [1998] 3 WLR 862, 981D-982D and Grobbelaar v News Group Newspapers Ltd [2002] 1 WLR 3024; [2002] UKHL 40 paras [24], [36] and [68].  Lord Bingham said at para [24]:
“... The tort of defamation protects those whose reputations have been unlawfully injured. It affords little or no protection to those who have, or deserve to have, no reputation deserving of legal protection. Until 9 November 1994 when the newspaper published its first articles about him, the appellant's public reputation was unblemished. But he had in fact acted in a way in which no decent or honest footballer would act ... Even if the newspaper had published no more than what, on my interpretation of the jury's verdict, it was entitled to have published, the appellant would have been shown to have acted in a way which any right-thinking person would unequivocally condemn. It would be an affront to justice if a court of law were to award substantial damages to a man shown to have acted in such flagrant breach of his legal and moral obligations.”
5.	He might also have cited the words of Lord Hailsham in Broome v Cassell & Co [1972] AC 1027 at p 1071-2 approving the statement by Lord Esher M.R. in Praed v. Graham, 24 Q.B.D. 53, 55: 
“... in actions of libel ... the jury in assessing damages are entitled to look at the whole conduct of the defendant" (I would personally add "and of the plaintiff") "from the time the libel was published down to the time they give their verdict. They may consider what his conduct has been before action, after action, and in court during the trial.”
6.	This and other cases (most notably Campbell v News Group Newspapers Ltd [2002] EWCA Civ 1143 at paras [32], [115] and [119]) are cited in Duncan & Neill on Defamation 3rd ed para [23.26] as examples of the principle that the behaviour of a claimant in the course of a libel action is relevant on the issue of damages.
7.	Mr Bennett submits that Grobbelaar is a case of partial justification, and since the conduct of Mr Joseph in deceiving the court is, as he submits, in a different sector of his life from that t0 which the words complained of related, his conduct is not relevant to damages. But the court rejected that distinction in Campbell v News Group Newspapers Ltd, where the disreputable conduct in question was, as here, an elaborate attempt to pervert the course of justice (para [119]).
8.	I reject the submission of Mr Bennett that in awarding nominal damages, I had been asked by Mr Price to impose any sort of penalty upon the Claimants, or that I did that. My finding that Mr Joseph has forged documents and given fraudulent evidence is a finding of an attempt to pervert the course of justice. That was serious misconduct in the course of this action, which is relevant to damages, such that I concluded that it would be an affront to justice if he were to be awarded more than a nominal sum for general damages: my judgment paras [174-178].
9.	So there is no question of double counting in relation to general damages and costs. In this respect the effect in a libel action of the attempt by a claimant to pervert the course of justice in the action is different from the effect of similar conduct in other claims, such as claims for damages for personal injuries.
10.	Mr Price has a separate argument for arriving at the same conclusion. He submits that if the fraud of Mr Joseph had been admitted (as it should have been) before the trial, then the claim would have been struck out as an abuse of the process of the court. He cited Fairclough Homes Ltd v Summers [2012] 1 WLR 2004, [2012] UKSC 26; Molloy v Shell UK Ltd [2002] PIQR P7 at [18] and Painting v University of Oxford [2005] PIQR Q5, [2005] 3 Costs LR 394. None of these cases was cited at the trial, although I cited Fairclough in my judgment.
11.	In Fairclough Homes at para [62] the Supreme Court approved the statement of the Court of Appeal in Masood v Zahoor [2009] EWCA Civ 650, [2010] 1 WLR 746 at para [73] as to the proper approach to be taken where an application is made before the trial that an action be struck out as an abuse of process on the grounds that the claimant has forged documents and given fraudulent evidence: 
“One of the objects to be achieved by striking out a claim is to stop the proceedings and prevent the further waste of precious resources on proceedings which the claimant has forfeited the right to have determined.”
12.	I have no doubt that the court would have adopted that approach to this claim if Mr Joseph’s forgery had been admitted before the trial, as it should have been.
13.	Mr Bennett submits that even if that is so, and he says it is now impossible to say what would have happened, then at most it is the claim of Mr Joseph that would have been struck out, and not the claims of the other two Claimants.
14.	Mr Price made other submissions which I do not find it necessary to deal with.
15.	In respect of the £850 undisputed special damages, I had in mind para [49] of Fairclough where the Supreme Court stated that a case may be struck out even after a trial where there has been a massive attempt to deceive the court but the award of damages would be very small. I have no doubt that if it had been possible for the Defendants to apply to strike out this claim before trial they would have done so, and it would certainly have been struck out by a court following Masood v Zahoor. It would not be just that Mr Joseph should recover even £850 special damages as a result of his continuing to attempt to pervert the course of justice throughout his evidence at trial.
16.	I do not accept Mr Bennett’s submission that the Second and Third Claimants are in a better position than Mr Joseph. The words complained of refer to the Claimants by the name or names under which they perform together. They are not identified in any other way. It is their reputation under the name by which they perform together that has been tarnished not only by the words complained of, but also by the forgery and fraud by which Mr Joseph pursued their joint claim, even though they themselves were not personally dishonest.
17.	There is, however, a complication in the present case arising out of the false evidence given by Mr Spiller in his first witness statement that his relationship with Bibis had always been good: see para [78] of my judgment. That falsehood underlay the false allegation in the words complained of.
18.	In the course of argument I put to Mr Price that, if I were in principle minded to adopt the course that I have in fact adopted so far in this judgment, by the same principle it would not be just that I should order the Claimants to pay to the Defendants any costs arising out of Mr Spiller’s false evidence. 
19.	I had by that time formed a preliminary view that, if I were to adopt the course that I have adopted, then the order for costs that I would make would be that the Claimants pay to the Defendants 75% of their costs of the action (other than those costs in respect of which orders for costs have already been made). After taking time to consider the point, the figure that Mr Price put forward was the same figure as that at which I had myself come to.
20.	For these reasons judgment will be entered for the Claimants for damages in the sum of 1p and the Claimants will pay to the Defendants 75% of the Defendants’ costs (other than those costs in respect of which orders have already been made).