Sasha Rodoy v Optical Express Limited [2026] EWHC 1486 (KB)

[2026] EWHC 1486 (KB)Case No KB-2023-002437
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/06/2026
Before
MR JUSTICE GRIFFITHS
Between
SASHA RODOYClaimantOPTICAL EXPRESS LIMITEDDefendant
William Bennett KC and Felicity McMahon (instructed by Seddons GSC LLP) for ClaimantAdam Wolanksi KC and Victoria Simon-Shore (instructed by Keoghs LLP) for Defendant
Reasons for costs order made on 4 June 2026..............................
[1]I have been asked to give reasons for ordering costs on the standard basis rather than on the indemnity basis in paragraph 3 of the Order After Judgment which I made in this case on 4 June 2026 (“the Costs Order”).[2]The Costs Order was made after consideration of written submissions on costs from both parties. Since they were in writing, there is no need for me to summarise them.[3]The Claimant lost because I found on the civil standard of proof that the defamatory meanings were substantially true. As a result, I made an order for costs against her. It did not follow, and it was not the case, that the circumstances of the claim or the Claimant’s conduct took the case “outside the norm” such that I would chose, in the exercise of my very broad discretion on costs, to award the costs on an indemnity basis (quoting from Excelsior Commercial and Industrial Holdings Ltd v Salisbury Hamer Aspden & Johnson [2002] EWCA Civ 879). The applicable principles are well known and the authorities are reviewed in the notes to the White Book at paras 44.3.8 – 44.3.10.[4]There was not much dispute of primary fact (although there was some), whether in relation to the Decoy Dolls episode (which was relevant to the “fraudster” meaning and extensively documented) or the communications and interactions said to support the “trolling” meaning (which were almost all documented). The case turned mainly (although not entirely) on assessments of the conclusions to be drawn from the primary facts. The Claimant’s case, although unsuccessful, was not dishonest or totally without merit or in my judgment otherwise “outside the norm” so as to justify or require in the interests of justice not only that an order for costs should be made against her but that the order for costs should be on the indemnity basis.[5]I also bore in mind that the judge who decided the trial of meaning (HHJ Lewis) urged the parties to engage in Alternative Dispute Resolution. See Rodoy v Optical Express Ltd [2024] EWHC 1499 (KB) at paras 50-52:
“50. I strongly recommend that the parties consider some form of alternative dispute resolution process such as mediation. 51. I appreciate that both parties will probably consider their positions to be so entrenched that there is little point in considering such options. In fact, experience shows that it is often in such entrenched cases that alternative dispute resolution can make a real difference, often requiring honest conversations with parties as to the merits of their respective cases and the potential downsides, as well as looking at pragmatic ways forward. 52. I do, therefore, encourage both parties at this stage in proceedings to pause and reflect on where the case is going, how matters can be managed in accordance with the overriding objective and how forms of alternative dispute resolution could be utilised to either narrow or resolve all of the issues between them.”
[6]Despite this strong recommendation, the Defendant did not even respond to the Claimant’s subsequent suggestion by letter dated 5 April 2024 that it should be pursued.[7]As Sir Geoffrey Vos C said in OMV Petrom SA v Glencore International AG [2017] EWCA Civ 195, [2017] 1 WLR 3465 at para 39:
“The culture of litigation has changed even since the Woolf reforms. Parties are no longer entitled to litigate forever simply because they can afford to do so. The rights of other court users must be taken into account. The parties are obliged to make reasonable efforts to settle, and to respond properly to Part 36 offers made by the other side. The regime of sanctions and rewards has been introduced to incentivise parties to behave reasonably, and if they do not, the court's powers can be expected to be used to their disadvantage. The parties are obliged to conduct litigation collaboratively and to engage constructively in a settlement process.”
[8]I do not say that the Defendants ought to have settled. But I do consider that their case for indemnity costs was weakened by their refusal even to entertain the possibility of attempting Alternative Dispute Resolution which had been suggested to them by a judge at a previous hearing and followed up in correspondence from the Claimant’s solicitors.