The case of King v Sunday Newspapers has been the subject of five judgments in the Courts in Northern Ireland.  In the latest, and apparently, last chapter in this long saga, the Court of Appeal has overturned the first instance judge’s ruling on costs, holding that because of the “complexity and novelty of the litigation” costs should be awarded on the High Court scale.

The plaintiff was a former loyalist murder suspect.  The case concerned the publication of his address, his picture, family details and the religion of his children by the “Sunday World” newspaper.  On 11 December 2009, Hart J granted an interim injunction restraining the publication of information identifying the location at which the plaintiff resided and making any reference to the child and its religion.

In an extempore judgment delivered on 22 September 2010 ([2010]) NIQB 107) by Weatherup J dismissed the claim for harassment but allowed the claim for misuse of private information in part.  We had a discussion of the judgment at the time.

The appeal in relation to misuse of private information was allowed in part 31 March 2011 ([2011] NICA 8). On 16 September 2011 Weatherup J assessed damages in the sum of £1,000 ([2011] NIQB 101).

On 2 December 2011 the same judge gave a ruling in relation to the costs of the action ([2011] NIQB 126).  He held that, as the damages awarded were within the County Court limit costs should be awarded on the County Court scale – solicitors fees at £2,299 and counsel’s fees at £809.  The plaintiff appealed against the order concerning the scale on which costs should be assessed.

In a judgment handed down on 29 June 2012 ([2012] NICA) the Northern Ireland Court of Appeal (Higgins, Girvan and Coghlin LJJ) noted that the the case “raised a number of complex and novel issues in relation to privacy law” [13].  The case was the first Northern Ireland authority on the balancing of Article 8 and Article 10.  The appellant relied heavily on the fact that English privacy litigation is “routinely conducted at the High Court level notwithstanding the modest awards of damages” [16] but they did not consider this to be determinative of the issue.

Overall, the Court of Appeal concluded that

“because of the complexity and novelty of the issues raised in the litigation we conclude that there was a special cause to award costs on the High Court scale” [17]

As a result, the appeal was allowed.

This case draws attention to a procedural issue which has not been explored in the English case law: to what extent are privacy cases suitable for trial in the High Court?  English privacy cases are almost always brought in the High Court – despite the the relatively low levels of damages which have, until recently been awarded.  The issue has been live in Northern Ireland because of the low “scale costs” awarded in the County Court – which makes it an attractive forum for defendants sued by legally aided plaintiffs  – defendants risk being ordered to pay costs but, if successful cannot recover them from plaintiffs. In McGaughey v Sunday Newspapers Ltd ([2011] NICA 51) the Court of Appeal upheld an order remitting a privacy action to the County Court.

One reason for media related privacy actions to be heard in the High Court is the need for experienced judges to deal with what may be difficult “balancing” exercises which affect the rights of the general public.  Furthermore, case law is complex and continues to evolve. Finally, it should be noted that, in contrast to the position in Northern Ireland, the damages awarded in privacy cases have often been substantial (see, for example, Cooper v Turrell ([2011] EWHC 3269 (QB) and see our case comment).  All these factors suggest that it is unlikely that privacy cases will, in the near future, be regarded in England as more appropriately dealt with in the County Court.