“Should your clients desire it, Channel 5 is prepared to enter into an alternative dispute resolution procedure should that appear advantageous.”
“In these circumstances, with fundamental issues of law and regulation in dispute, we do not consider ADR would be productive or appropriate at this stage in proceedings but our clients will be prepared to keep under review the option of ADR once these substantive issues of law and regulation have been addressed further.”
“Your clients’ claim for injunctive relief to prevent further broadcasts is perfectly suitable for Alternative Dispute Resolution and there is no reason for that possibility not to be properly pursued, especially in view of the Pre-action Protocol.”
“These circumstances do not appear conducive to ADR, particularly at a point where there [is] no acceptance of wrongdoing on your part. However, we remain fully prepared to engage with ADR at a suitable time and invite proposals for the same.”
“Our client is confident of success at trial. However, it is conscious that it will be difficult to recover a substantial part of its costs from your clients. Therefore, on a commercial basis only, strictly without any admission of liability and solely to bring about a settlement at this juncture, we have been instructed to put forward the following defendant’s offer to settle pursuant to Part 36 of the Civil Procedure Rules. This offer is a defendant’s offer to settle the whole of the claim against it by both of your clients in the abovementioned proceedings in the Chancery Division of the High Court, with claim number HC-2016-002012, on a full and final basis on the following terms: • Our client will pay your clients jointly the sum of £[X] (including interest) (the Settlement Sum); • Our client will make this payment within 14 days of receipt of notice of acceptance; • The Settlement Sum is inclusive of interest until the Relevant Period (defined below) has expired; • The Settlement Sum does not include liability for costs. Pursuant to Part 36, our client will be liable for your clients’ costs in accordance withCPR 36.13 if the offer is accepted within 21 days (Relevant Period). If your clients do not accept this offer, and fail to do better than this offer at trial, our client intends to rely onCPR 36.17 . In other words, our client will be seeking an order that your clients pay our client its costs from the date when the Relevant Period expires and interest on those costs. This offer is intended to have the consequences of section 1 of Part 36 of the Civil Procedure Rules. If you think that this offer is defective or non-compliant with Part 36, you must let us know promptly.”
“My clients are content to rely on this offer through trial if it is not accepted. However, I can advise that there remains some commercial advantage to my client to have the matter settled this week. … My clients are willing to consider providing your client with a letter apologising for any distress caused to your client, for example by virtue of showing him in his nightwear, provided that terms can be agreed.”
“ … in the light of the extent of the broadcast of the programme complained of, our clients require a public apology. Our clients also repeat their request made at the outset that your client undertakes not further to repeat broadcast of the programme complained of.”
“In all the circumstances, we look forward to prompt disclosure of all further documentation and exchange of Witness Statements, at which stage our clients should be placed in a better position to assess their claim with a view to being able to engage in settlement discussions.”
“1. The non-monetary relief set out in your letter is not available to your clients. No Court can or will order an apology, nor is one sought in the Prayer for Relief. That Prayer does seeks an injunction to restrain further broadcasting of ‘the information complained of or of any similar information’. That does not extend to the undertaking you seek in your letter, which again will not be ordered by the Court. Even if your clients succeed in their claim and persuade the Court to exercise its discretion to order an injunction, the footage could still be broadcast in anonymised / blurred form. 2. Without prejudice to the above, we have instructions from our clients to confirm that in addition to the monetary relief currently on offer, they would be prepared to undertake not to broadcast again the segment of the programme that featured your clients. …. 5. Although we are still in the process of considering the disclosure requests in your letter dated 19 September, we do not consider that your clients require sight of any of it, and far less witness statements, in order to ‘assess their claim’ and then ‘engage in settlement discussions’. Our clients have made a Part 36 Offer, as they are entitled to do at any stage of the proceedings, and you have not suggested that the offer is in any way invalid nor have you sought clarification of it pursuant toCPR Part 36.8 . Moreover, we have now amplified the terms of that offer by the offer of the undertaking set out above. 6. Despite the above, in order to facilitate settlement (on your clients’ case) we have prepared the attached table for your information. If in light of the above your clients now wish to instruct you to accept our clients’ Part 36 offer, together with the undertaking set out above, we shall no doubt hear from you in advance of the expiry of the Relevant Period.”
“1. You are correct in asserting that no court would order your client to apologise to our clients. However, it is standard practice in settlements concluding misuse of private information claims for defendants to either apologise via the same medium as the original publication or to make statements in open court doing the same. This is particularly important in the cases of our clients. They have been very publicity humiliated by the actions of your silent. They wish to be vindicated and to be able to say that Channel 5 has apologised to them. If this matter does proceed to trial, we are confident that our clients will not only succeed but that the judgment will vindicate them. Because it will make clear that your client behaved very badly indeed towards them. Thereby they would achieve the same kind of vindication which might otherwise be provided via an apology by your client. … 3. …. We note you refer to the fact that the Relevant Period for your clients’ Part 36 Offer will have expired before20 October 2017 . This is not correct. Your letter of yesterday’s date offering an undertaking in addition to the monetary relief offered in your part 36 offer has effectively changed the terms of your Part 36 offer. In accordance withCPR rule 36.9 (5)(a) this improved offer shall be treated as the making of a new Part 36 offer on the improved terms and therefore expiry of the Relevant Period will be 21 days from your written notice of the change of terms.”
“You state your client’s objection to making an apology to our clients. The defendant has been aware as to our clients’ requirement for vindication from the outset of this claim. It is our clients’ position that, in the event they win this action and obtain Judgment in their favour, this will provide them such vindication. Alternatively, if there can be a settlement, they will need a form of effective vindication. However, as you say, this issue can be explored at a mediation.”
“In our view the offer was compliant with Part 36; in any event the letter of14 May 2010 made it clear that if the offer was in any way defective or non-compliant with Part 36, Mr and Mrs Ho’s solicitors were asked to let them know as soon as possible. It seems to us clear that, not only did the solicitors treat the offer as a Part 36 offer in the light of the hearing of the appeal, but they also accepted it as a Part 36 offer in their letter of21 September 2010 .”
“(a) The question is not whether it was reasonable for the claimant to refuse the offer. Rather, the question is whether, having regard to all the circumstances and looking at the matter as it affects both parties, an order that the claimant should pay the costs would be unjust: see Matthews v Metal Improvements Co. Inc[2007] EWCA Civ 215 at [32], per Stanley Burnton J (sitting as an additional judge of the Court of Appeal). (b) Each case will turn on its own circumstances, but the court should be trying to assess ‘who in reality is the unsuccessful party and who has been responsible for the fact that costs have been incurred which should not have been’: see Factortame v Secretary of State[2002] EWCA Civ 22 at [27], er Walker LJ. (c) The court is not constrained by list of potentially relevant factors in [what was then rule] 36.14(4)] to have regard only to the circumstances of the making of the offer or the provision or otherwise of relevant information in relation to it. There is no limit to the types of circumstances which may, in a particular case, make it unjust that the ordinary consequences set out in [what was then rule] 36.14 should follow: see Lilleyman v Lilleyman (No 2)[2012] 1 WLR 2801 at [16]. (d) Nonetheless, the court does not have an unfettered discretion to depart from the ordinary cost consequences set out in [what was then rule] 36.14. The burden on a claimant who has failed to beat the defendant’s Part 36 offer to show injustice is a formidable obstacle to the obtaining of a different costs order. If that were not so, then the salutary purpose of Part 36, in promoting compromise and the avoidance of unnecessary expenditure of costs and court time, would be undermined.”
“9. The judge said that he found the point a difficult one (judgment, para 41). His conclusion was that in the unusual circumstances of this case, where MGN had made limited admissions and had until shortly before the trial denied any liability, Mr Yentob had ‘some form of justification for pursuing the matter to trial’ (judgment, para 42). The judge explained in his main judgment at trial that the formal admissions were made as late as November and December 2013. I need not set out the detail of those admissions. The admissions were extensive but limited because, as the judge explained: ‘25. … these admissions … do not amount to any admission as to the scope of unlawful activities beyond the use of the word “substantial”.’ 10. The judge accepted that it was not enough that Mr Yentob wanted to find out what had happened to him as many claimants would want to do that (judgment, para. 43). The case was exceptional because, until the trial took place, Mr Yentob would not know how badly he had in fact been hacked, it was unlikely that MGN would have agreed to make a statement [in open court] which matched the findings made at trial and because it was not apparent until trial that he could never get disclosure of the full extent of the hacking (judgment, para 44). He could not recover his costs from MGN but justice did not, in those circumstances, require him to pay MGN’s costs: the outcome could be marked simply by making no order as to costs (judgment, para. 45).”