Memorandum submitted by Olswang solicitors

We acted for MGN Limited in Sara Cox and another v. MGN Limited and others. Our client has pointed out to us that the written evidence submitted to you by Messrs Schillings in January 2009 as it relates to that case may be misleading.

In their written evidence, Schillings state inter alia as follows (at the end of their section 1 headed "Notice requirement"):

"Damages are not the main motivator for many Article 8 complainants. As was observed by Eady J in Cox v MGN and Others [2006] EWHC 1235 (QB):

The amount of financial compensation was not the Claimants' only or main concern; they were seeking undertakings from all four Defendants and, above all, delivery up and destruction of the photographic digital images to make further publication impossible.

Accordingly the judge considered it to be over simplistic to say that the amount of costs claimed in the case was disproportionately high (approximately £140,000) in comparison to the damages received (£50,000)." (our emphasis)

The £140,000 figure to which Schillings refer in fact relates to the Claimants' base costs only, and so excludes VAT and the success fee (claimed by the Claimants at 95%). This is recorded in the judgment of Eady J in Sara Cox and another v. MGN Limited and others [2006] EWHC 1235 at paragraph 28, where Eady J refers to "base costs of £142,728".

Taking into account the claimed success fee and VAT, the total costs in fact claimed by the Claimants in the case amounted to £272,961.58.

This was explained in the written evidence submitted to the 2005 Department of Constitutional Affairs (as it then was) Select Committee inquiry regarding the use and operation of Conditional Fee Agreements by Trinity Mirror plc (the parent company of MGN Limited) in November 2005:

"23. Although the court has not yet decided on the appropriate sum of costs which are to be paid in the case of Sara Cox and Jon Carter v MGN Limited the claim for costs by Sara Cox's lawyers totals £272,961.58. In contrast MGN Limited's costs were £46,310.28."

We trust that this letter is helpful, but please do not hesitate to contact us should you require any further information.

March 2009