Noel Clarke ordered to pay initial £3m to The Guardian

In a well-publicised this case, Dr Who actor Noel Clarke sued The Guardian newspaper, claiming that articles which had accused him of sexual misconduct against multiple women, as well as bullying, were untrue and defamatory. He also brought another claim against the newspaper for unlawful processing of his data. The Guardian won and Mr Clarke was ordered to pay costs to the newspaper. The issue of costs was then the subject of a further hearing. 

The High Court has therefore recently handed down a further decision addressing costs following Mr Clarke's unsuccessful claims against The Guardian. The ruling, given by Mrs Justice Steyn, considers how costs should be allocated after the dismissal of both of Mr Clarke's claims. This follows the Court’s previous judgment in favour of The Guardian in the defamation claim, citing substantial truth and public interest, and branding Mr Clarke as an unreliable witness. The case underscores the risks of pursuing reputation litigation, particularly when faced with extensive witness testimony and public scrutiny.

Mr Clarke was ordered to pay The Guardian's costs on an "indemnity basis". 

What are Indemnity Basis Costs?

When a defendant successfully defeats a defamation claim, they are entitled to recover a reasonable sum in relation to the costs incurred in defending the claim. If this sum cannot be agreed between the parties, it is subjected to detailed assessment by the Court.

A key aspects of the Court’s decision in Noel Clarke's case against The Guardian, was the awarding of costs on the indemnity basis, which is stricter than the standard assessment of costs and typically applies when the losing party’s conduct has been deemed to be unreasonable in some way. 

The Judge acknowledged that the Court's discretion to award costs on an indemnity basis hinges on the conduct of the parties and all of the circumstances of the case. The Judge found Mr Clarke’s statements during the trial to be untrue and dishonest, and that his claim was bound to fail, justifying the indemnity costs order. As a result, Mr Clarke was ordered to pay The Guardian’s costs, subject to detailed assessment by a separate costs judge, unless the costs could be agreed between the parties.

Indemnity costs generally means that the losing party has to pay at least 80% to 90% of the winner's costs, although this can sometimes be higher. By way of contrast, costs awarded on the usual (standard) basis, usually mean that the loser pays 70% to 80% of the winner's costs. In a claim where the costs are very high, this can means tens of thousands of pounds difference.

What is a Payment on Account of Costs?

The costs incurred by The Guardian in defending Mr Clarke's claim were very high. The Guardian's were in the £millions, all incurred prior to disclosure, trial preparation, or trial costs. Given the size of the claim and the Defendant’s substantial expenses, the Judge ruled that Mr Clarke should pay £3 million as an interim payment. This was considered reasonable, as the Guardian’s final costs could exceed £6 million once everything had been taken into consideration.

Mr Clarke was in no way being punished by the Court's decision. Under Civil Procedure Rule 44.2(8), a party ordered to pay costs subject to detailed assessment is usually required to make a reasonable advance payment. This is because the court deems it unfair for a winning party to have to wait a significant time to be reimbursed, as costs proceedings can sometimes take as long as the claim itself to reach a conclusion.

The final outcome is that Mr Clarke was given 28 days to pay £3 million to The Guardian. The decision highlights the financial risks of pursuing high-profile defamation cases, and demonstrates the emphasis that Courts place on the conduct of parties during litigation proceedings.  

If you need advice about how much it costs to bring a claim for defamation, you can speak to one of our experts today. Contact us to find out how we can help.