Formula 1 personality Eddie Jordan has been ordered to pay indemnity costs after accepting a “very historic” £15,000 part 36 offer that was still open on the eve of trial – and which was £85,000 less than he had been offered a year earlier.
Mr Justice Mann said he was penalising Mr Jordan’s dilatory conduct of his claim – which related to phone hacking – and “the culpable failure to engage in negotiations which would, if conducted more properly, have been likely to have led to a settlement”.
In Jordan v MGN Ltd [2017] EWHC 1937 (Ch), the judge said: “The bottom line is that Mr Jordan did not advance any explanation, let alone a good one, why, having run his case for two and a half years, having failed to respond properly to a number of offers, one of which was close to his own proposed financial settlement, having caused himself and the other side to run up significant amounts of costs and having exposed the defendant to the prospect of having to pay the CFA uplift and ATE premiums (which I am satisfied is a powerful threat to a defendant) should, at the last minute, do the equivalent of walking away from the action.
“I consider that all those factors, and the other matters referred to in this section, are good reasons for ruling that the costs be paid on the indemnity basis, and I so order.”
The action began in August 2014. During the course of its progress to trial, there were a number of both part 36 offers and ‘without prejudice save as to costs’ offers, which were largely ignored.
The first was a part 36 offer in September 2014 that included an offer of £15,000 in damages. The figure kept going up and, by June 2016, the defendant was offering £100,000. However, on the eve of the trial in July, Mr Jordan accepted the September 2014 offer.
Mr Jordan sought to argue that it was unjust to make him pay MGN’s costs from the expiry of the offer, but Mann J said his counsel “has not even begun to make a case for departing from the usual order…
“The claimant has been responsible for prolonging litigation for a considerable period and then (basically) caving in. The just result is that the normal consequences of the late acceptance of a part 36 offer should follow.”
MGN went on to seek indemnity costs, with Mann J finding it justified on Mr Jordon’s failure to engage properly in settlement negotiations.
Further, in April 2017 Mr Jordan made a £90,000 offer, to which MGN responded that if that had been offered back in July 2009, the proceedings could have been brought to an end. The judge said: “On the evidence I have seen, I think that that is likely… There was therefore, in my view, a culpable failure to engage in negotiations which would, if conducted more properly, have been likely to have led to a settlement. That is very significant matter.”
Also of significance was Mr Jordan’s late decision not to go to trial, having given every indication that he was ready for it.
Picture credit: Lutz H