“Can’t pay? We’ll take it away” – Part 36 Offers, apologies, costs and a schoolboy error

In the recent case of Ali & Anor v Channel 5 Broadcast Ltd [2018] EWHC 840 (Ch), the Claimants successfully recovered £10,000 each in privacy damages following the broadcast of the television programme “Can’t pay? We’ll take it away”.  The broadcast contained footage of the Claimants (a married couple) being evicted from their home, it was viewed by 9.65 million people and Mr Justice Arnold held that it amounted to a misuse of their private information.

A few months before the trial, Channel 5 had made a Part 36 Offer to settle the claim.  This amount was not disclosed, but the Claimants failed to beat it at trial.  Counsel for the Claimants contended that because Channel 5 had failed to offer an apology, or agree to a Statement in Open Court, as part of the proposed terms of settlement under the part 36 Offer, it would be unjust to impose on the Claimants the ordinary costs consequences of their failure to beat the Part 36 Offer.

The Judge was not persuaded by this line of argument.  He noted that, ordinarily, claims for misuse of private information are not settled on terms that entitle the claimant to an apology or an agreed Statement in Open Court, unlike claims in defamation where this is commonplace.  Moreover, he held that it was open for the Claimants to apply to make a unilateral Statement in Open Court if they so wished.

However, in something a schoolboy error following the Mitchell debacle, Channel 5 had failed to file or serve any costs budget or apply for relief from sanctions.  Mr Justice Arnold held, applying CPR Part 36.23(2)(a), that in these circumstances Channel 5 was only entitled to recover 50% of its assessed costs for the final few months of the litigation.

The case also reminds claimants of the need to carefully consider defendants Part 36 offers and their terms.  Whilst privacy claims can attract significant damages, this will not always be the case.  The case of TLT & Ors v The Secretary of State for the Home Department & Anor [2016] EWHC 2217 (QB) is perhaps instructive in this regard.  However, generally speaking there is sparse authority on the appropriate level of privacy damages and predicting an award can be notoriously difficult.

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