WFZ v The BBC
[2023] EWHC 1618 (KB)
His Majesty's Attorney General for England and Wales v British Broadcasting Corporation
18 November 2022
[2022] EWHC 2925 (KB)
High Court
The government tried to stop the BBC from publishing a story about a secret spy who was also an abuser. The BBC got to publish parts of the story but couldn't reveal the spy's identity. Because some important parts of the government's case were secret, nobody has to pay the other side's legal fees.
Key Facts
- •The Attorney General (AG) sought an injunction against the BBC to prevent publication of information about individual X, an alleged covert human intelligence source (CHIS) for MI5 who had allegedly abused two partners.
- •The BBC published stories about X without identifying him, leading to this litigation.
- •The case involved hearings on open justice, interim injunction, and permissible information disclosure, with parts conducted in open and closed court.
- •The AG initially accepted a story without naming X, but the final injunction allowed more specific details.
- •The court considered costs implications after a consent order was approved.
Legal Principles
The general rule is that costs follow the successful party (CPR 44.2(2)(a)).
CPR 44.2(2)(a), HLB Kidsons v Lloyds Underwriters [2007] EWHC 2699 (Comm)
The court can depart from the general costs rule (CPR 44.2(2)(b)), but not readily. In complex litigation, success on some issues doesn't justify an issue-based costs order unless it's something granting relief.
CPR 44.2(2)(b), Fox v Foundation Piling Ltd [2011] EWCA Civ 790, Murphy & Sons v Johnson Precast Ltd (No. 2) [2008] EWHC 3104 (TCC), White Book 2022, para. 44.2.10
In cases involving closed material procedures, courts consider the extent to which success relies on closed material when deciding costs. If substantially based on closed material, it might be unfair to penalize the unsuccessful party.
Begg v HM Treasury [2015] EWHC 1851 (Admin), [2016] EWCA Civ 568, XH v Secretary of State for the Home Department [2017] EWCA Civ 41
The court has broad discretion in deciding costs (CPR 44.2), and the open justice issue can be considered even without specific relief.
CPR 44.2
Outcomes
No order as to costs.
Neither party was wholly successful or unsuccessful. The final outcome was midway between the AG's initial position and the BBC's desired publication. The AG's success on the interim injunction was substantially based on closed material the BBC couldn't assess, making a costs award against the BBC unfair.
BBC successful on the open justice issue.
The court rejected the AG’s attempt to make the open part of the hearing private.
Score draw on the identification issue.
Both parties won and lost on different aspects of determining what identifying information could be published.