On 17 May 2023, the Court of Appeal made its final order [pdf] in the long running Banks v Cadwalladr case. After receiving written representations from the parties, the Court ordered the defendant, Carole Cadwalladr to pay 60% of Arron Banks’ costs of the trial and one third of his costs in the Court of Appeal.
Ms Cadwalladr was ordered to pay Mr Banks the sum of £400,000 by way of a payment on account in respect of the trial costs and the appeal costs were assessed in the sum of £52,000. She was ordered to pay these sums by 31 May 2023.
This order follows the Court of Appeal judgment of 28 February 2023 ( EWCA Civ 219) by which they allowed Mr Banks’ appeal in relation to publication of the TED Talk after 29 April 2020. Ms Cadwalladr subsequently agreed to pay Mr Banks damages in the sum of £35,000.
The Court of Appeal’s final order [pdf] contains two pages of reasons. These begin by noting that the claimant was the successful party on the appeal and overall . However, they go on to note that the claimant had lost on some discrete issues of substance which make it just to depart from the general rule that the unsuccessful should pay the costs of the successful party. He had lost on the issue in the High Court which absorbed most the time and money – namely whether it was reasonable for the defendant to believe it was in the public interest to say what she did (see the judgment of Steyn J  EWHC 1417 (QB)).
However, the Court of Appeal refused to make an “issues based costs order”. It said that the defendant’s persistence in her defence of the second phase of publication of the TED Talk was “highly optimistic”. It was said that the order was intended to strike a proper balance between the various considerations.
Mr Banks said that the Court’s decision on costs was a “vindication”. Ms Cadwalladr said she was “hugely disappointed” and described this was a “dark day for press freedom in the UK”.
A dark day for freedom of the press, for everyone who cares about it and for every journalist & news organisation that believes in public interest reporting.
A statement: pic.twitter.com/OfTTVezPmh
— Carole Cadwalladr (@carolecadwalla) May 18, 2023
Ms Cadwalladr has raised over £600,000 on her “gofundme” appeal and over £230,000 on her “crowdjustice” appeal. It is unclear whether these sums will be sufficient to meet all her costs liabilities.