Commentary on Sections Schedule 14: Deployment of the judiciary Section 40: Awards of costs
479.Section 40 relates to cases where the relevant publisher is a defendant to a relevant claim. In such cases, when making a decision about whether and to what extent the defendant should pay the claimant’s costs of the case, the usual costs rules will not apply and the court will be required either to award, or not to award, costs against the defendant in accordance with subsections (2) and (3). Subsection (2) applies where at the time the claim was commenced, either the defendant was a member of an approved regulator or was unable to be a member for reasons beyond the defendant’s control, or it was unreasonable in the circumstances for the defendant to have been a member. In those circumstances the court must not award costs against the defendant regardless of the outcome of the case – unless the court is satisfied that one of two exceptions applies. The exceptions are that the issues raised by the claim could not have been resolved by using an arbitration scheme provided by the approved regulator, or that in all the circumstances of the case it is just and equitable to award costs against the defendant. Subsection (3) would apply where at the time the claim was commenced the defendant was not a member of an approved regulator but could have been, and it was reasonable for the defendant to have been a member. In those circumstances, the position is the converse of that under subsection (2) and the court must award costs against the defendant, regardless of the outcome of the case, unless the court is satisfied that one of two exceptions applies. The exceptions are that the issues raised by the claim could not have been resolved by using an arbitration scheme provided by the approved regulator, or that in all the circumstances of the case it is just and equitable to make a different order, or no order, as to costs.
480.Subsection (4) concerns costs protection other than that for defendants under subsection (2), and would require the Secretary of State to take steps to put in place arrangements for protecting the position in costs of parties to relevant claims who are represented under a conditional fee agreement under section 58 of the Courts and Legal Services Act 1990. Subsection (5) provides that this section is not to be read as limiting any power to make rules of court. Subsection (6) makes transitional provision, to the effect that the section’s provisions do not apply until such time as a body is first recognised as an approved regulator.