Costs of a Preliminary Issue Trial in Libel: Paul Little Construction v Byrne and Sharif v Associated Newspapers
Detailed Assessment — 2026-10-12
Costs in the case is the usual order after a trial of preliminary issues on meaning in a libel claim. Eardley J applied Sharif v Associated Newspapers in Paul Little Construction v Byrne [2026] EWHC 2577 (KB): a party seeking a different order must show an unreasonable stance that caused unnecessary costs.
Overview
Date: 12 October 2026
Judge: Mr Justice Eardley
Court: High Court of Justice, King's Bench Division, Media and Communications List
Citation: [2026] EWHC 2577 (KB)
Nature of Proceedings: Trial of preliminary issues in a libel claim over two Google reviews of a building contractor
Authority applied on costs: Sharif v Associated Newspapers Ltd [2021] EWHC 343 (QB), Nicklin J, 5 February 2021
Key Issues:
- The usual costs order after a trial of preliminary issues on meaning, fact or opinion and defamatory status
- Why the costs of meaning should follow the final result rather than the preliminary ruling
- When a court will depart from costs in the case
- How a mixed outcome on meaning bears on the costs argument
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In Paul Little Construction Ltd v Byrne [2026] EWHC 2577 (KB), Mr Justice Eardley determined meaning and the related preliminary issues in a libel claim over two online reviews. On costs, he told the parties that the usual order after a trial of preliminary issues of this kind is costs in the case, and that any party who wants a different order must justify the departure. He relied on Sharif v Associated Newspapers Ltd [2021] EWHC 343 (QB) at [41] to [47], where Nicklin J explained why the costs of a meaning trial should normally follow the final result of the action. This article covers both decisions.
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Paul Little Construction v Byrne: The Facts
The claimant is a building company working in Devon and Cornwall. In April 2023 the defendant and his wife engaged it to work on their house in Plymouth. The defendant was unhappy with the result and posted two one-star reviews on the Google Business platform, the first before 9 August 2024 and the second in January 2025.
The first review told readers not to let the company "anywhere near" their building project. It described the work as "terrible" and "shoddy" and the additional charges as "extortionate", and said the company had promised in writing to pay for another contractor to correct the work but had not done so. It attached photographs and videos of the work. The second review repeated the warning, criticised the "poor workmanship" and said the defendant had spent "thousands and thousands of pounds" paying someone else to correct it.
The procedural history was unusual. The trial of preliminary issues took place after a Defence and Reply had already been filed. The defendant asked for the issues to be decided without a hearing. The claimant opposed that, and on 12 May 2026 Collins Rice J directed a hearing. The trial took place on 5 October 2026.
Eardley J decided four issues for each review: the natural and ordinary meaning, whether the statement was or included opinion, whether it indicated the basis of the opinion, and whether it was defamatory at common law. With the parties' agreement he added the third issue, which the order had left out, because it is "commonly and conveniently determined alongside the others" ([2]).
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The Outcome on the Preliminary Issues
The result was mixed. Neither party's case was accepted in full.
Claimant's counsel advanced meanings in his skeleton argument that differed significantly from the meanings pleaded in the Particulars of Claim. The judge allowed this because it caused no prejudice: the pleaded meanings had included allegations of dishonesty, which counsel had dropped, "rightly in my view" ([22]). The defendant put forward no rival meaning of his own. He commented on the claimant's pleaded meanings, admitting some parts and denying others ([27]).
On the first review, the judge agreed with the claimant that the headline broadened the criticism into a general attack on the company's competence and reliability. He agreed with the defendant that this wider attack was presented as an opinion "firmly rooted in the Defendant's own experiences" ([32]). He rejected the defendant's case that every defamatory element was opinion, holding that the statements about the cost of the corrective work and the unhonoured promise were factual ([33]). He found the unhonoured promise allegation less strong than the claimant had argued, because readers would see that the situation was still developing ([33]). He rejected the defendant's argument that the review was not defamatory at common law ([34]).
On the second review, the fact or opinion question was "closer to the line" because no photographs of the work were attached ([37]). He held the poor workmanship allegation to be opinion and the words "this company attempted to build our extension" sufficient to indicate its basis, against the claimant's submission on that point. He again held the statement about the cost of corrective work to be factual and the review to be defamatory at common law ([38] and [39]).
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The Costs Direction at [40]
The judge invited the parties to agree an order recording his decisions and dealing with costs and other consequential matters. On costs he said:
> "On costs, I draw the parties' attention to Sharif v Associated Newspapers Ltd [2021] EWHC 343 (QB) at [41]-[47] where Nicklin J indicated that the usual order after a TPI of this nature should be costs in the case. Any party contending for a different costs order will need to explain why a departure from the usual course is justified."
This is not a final costs order. The judgment leaves the parties to agree one, or to argue for something else. It does settle where the burden lies: on whichever party seeks to move away from costs in the case.
He ended with a strong encouragement to mediate. He observed that most businesses deal with online reviews they think unfair by posting a response, not by suing, and that:
> "it is somewhat dispiriting to see litigation of this sort in the High Court, which will doubtless generate significant legal costs that someone will have to pay."
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Sharif v Associated Newspapers: The Facts
Sharif concerned two libel claims over one article in the Mail on Sunday of 14 July 2019. The article asked whether the family of a Pakistani politician had stolen British aid money intended for earthquake victims. The claimants were Mian Muhammad Shabaz Sharif, leader of the main opposition party in Pakistan and a former Chief Minister of the Punjab, and Imran Ali Yousaf, his son-in-law.
The court directed a trial of two preliminary issues before any Defence was filed: the natural and ordinary meaning of the article as it concerned each claimant, and whether that meaning was defamatory at common law. The second issue fell away because the defendant accepted that its own meanings were defamatory ([9]).
Nicklin J heard the matter remotely on 5 February 2021 and gave judgment the same day. As in Paul Little, the result was mixed. For Mr Sharif, he found a meaning at Chase level 1 (guilt). He accepted the claimant's submission that the meaning should focus on Mr Sharif alone and not on his wider family ([33]), but he accepted the defendant's submission that the meaning had to include kickbacks and commission as a second source of the laundered money ([32]). For Mr Yousaf, the first part of the meaning was at Chase level 1, while the second part was at Chase level 2 and "largely reflects the meaning that was advanced by the Defendant" ([39]).
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Sharif: The Costs Ruling
The Claimant's Argument
Counsel for Mr Sharif sought an order that the defendant pay the costs of the preliminary issue. She argued that, looked at broadly, Mr Sharif had largely succeeded because more elements of his meaning had been reflected in the court's meaning, so costs should follow the event. She also argued that an order for costs in the case encourages parties to take points on meaning and force the court to decide them, whereas the risk of an adverse costs order would make parties more realistic ([41]).
1. A Meaning Trial Brings Forward an Issue That Would Otherwise Be Decided at Trial
Nicklin J accepted that where there is a clear winner, costs usually follow the event ([42]). He held that meaning applications are different. They are preliminary issue trials, and the issue would otherwise be decided at the final trial alongside the rest of the case. Modern practice resolves meaning early for good reasons, citing Morgan v Associated Newspapers Ltd [2018] EWHC 1850 (QB) and Bokova v Associated Newspapers Ltd [2019] QB 861.
He added this observation from his experience as a judge and at the Bar:
> "the instances where parties are agreed about the natural and ordinary meaning in a defamation claim are so vanishingly few as to be statistically insignificant."
In most defamation claims a real dispute about meaning has to be decided by the court, and it is desirable for that to happen "quickly and economically" ([43]).
2. At Trial, the Costs of Meaning Are Absorbed Into the Costs of the Action
The central reasoning is at [44]. If meaning were left to the final trial, the costs of it would not normally be separated out:
> "Where meaning is resolved at the final trial, unless there is justification for making an issue-based costs order (unlikely in most disputes about meaning), the costs of meaning would simply be swept up in the costs of the action."
A claimant could therefore win on meaning and still lose the action on a substantive defence. In that event the court would not, absent some unusual feature, order the defendant to pay the costs of meaning anyway. Bringing the issue forward to an early trial should not change who ends up bearing those costs.
3. An Early Costs Order Would Be an Issue-Based Order Made Before the Outcome Is Known
At [45], Nicklin J identified the unfairness of deciding costs at the preliminary stage:
> "Even if it were possible to detect a clear 'winner' on the issue of meaning in this case, there is still a potential unfairness by making what is, in effect, an issue-based costs order at this stage."
The party who lost on meaning might yet win at trial. He concluded:
> "In the ordinary course, therefore, the costs of determination of the preliminary issue of meaning should follow the ultimate event; the result of the action."
This answers the claimant's argument. Even a clear win on meaning does not, by itself, justify an immediate order for costs. The question is not only who won the preliminary issue, but whether it is fair to fix the costs consequences before the action is decided.
4. The Exception: An Unreasonable Stance That Caused Unnecessary Costs
Nicklin J did not close the door entirely. At [46] he identified when a court is likely to be sympathetic to an application for costs after a meaning trial:
> "where the Court is satisfied that a party has adopted an unreasonable stance on the issue of meaning and that has caused unnecessary costs to be expended."
His example was a defendant who argued that a meaning could not be at Chase level 1 because the article was simply repeating someone else's allegations. If the court rejected that argument as hopeless, it might find that relying on it was unreasonable. He stressed that such cases are unusual.
The test has two parts. The stance must be unreasonable, and it must have caused unnecessary costs. Losing an argument on meaning does not meet it. Putting forward a meaning that the court does not adopt does not meet it either.
5. Application
At [47] he held that the case was "a fairly typical example of litigants who have genuinely been unable to reach agreement about the meaning of an article". There was no clear winner and no unreasonable stance, so there was no reason to depart from costs in the case. He summarised the effect:
> "Ultimately, the party that loses overall will pay the costs of determining meaning as a preliminary issue in these cases."
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Applying Sharif to Paul Little
Eardley J applied Sharif to a trial of preliminary issues "of this nature", which covered fact or opinion, the basis of the opinion and defamatory status as well as meaning. Sharif was decided on meaning and defamatory status only. The reasoning carries across without difficulty: each of those issues would otherwise be decided at the final trial, and each is the kind of point on which the eventual loser at trial may have won.
Several features of Paul Little are the sort of thing a party might raise when arguing about costs. The claimant's pleaded meanings included dishonesty allegations that were abandoned before the hearing. The claimant opposed a determination on paper, which the defendant had proposed. The defendant advanced no meaning of his own, and argued that the reviews were not defamatory at all, which the judge rejected. None of these is decisive on the authorities discussed here. Under Sharif, the question is whether a stance was unreasonable and caused unnecessary costs, not whether a party lost a point. On the outcome, neither side was a clear winner: each succeeded on some issues and failed on others.
The judgment also notes a separate costs hazard. At [7], Eardley J observed that a lack of clarity about what material forms the context of a statement "can sometimes derail a TPI, at great expense to the parties", referring to his judgments in the Paisley v Linehan litigation. Uncertainty of that kind is the sort of avoidable expense that could bring a case within the [46] exception.
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Practical Implications
For Costs Lawyers
1. Start from costs in the case. After a trial of preliminary issues in a libel claim, the default is costs in the case. A party who wants its costs now carries the burden of justifying a departure.
2. Argue unreasonableness and causation, not success. Under Sharif at [46], a costs application must show both an unreasonable stance on meaning and unnecessary costs caused by it. A count of which party's words appear in the court's meaning is the argument Nicklin J rejected at [41] to [45].
3. Identify the hopeless point. The example in Sharif is a hopeless argument on the repetition rule. Look for a position the court rejected as untenable, not merely wrong, and then link it to the work it made necessary.
4. Track the costs of the preliminary issue separately. Under an order for costs in the case, those costs are recovered by whoever wins the action. Recording them as a distinct block of work makes them easy to identify on detailed assessment and in any argument about an exception.
5. Expect a mixed result to defeat a costs application. In both Sharif and Paul Little each side won some points and lost others. That outcome points firmly to costs in the case.
For Litigation Practitioners
1. Plead a realistic meaning from the outset. A meaning revised in a skeleton argument, particularly one that drops serious allegations, invites scrutiny of the earlier position if a costs exception is argued.
2. Advance a rival meaning. The well-established practice described in Sharif at [8] was for the defendant to set out its own meaning. A defendant who only comments on the claimant's meaning gives the court less to work with and may face questions about whether its stance was reasonable.
3. Consider a determination on paper. Where both parties agree, a paper determination may save the costs of a hearing. Opposing it is not unreasonable in itself, but the choice will be visible if costs are argued.
4. Agree the context material before the hearing. Settle which images, links and surrounding text form part of the statement complained of. Paisley v Linehan, mentioned in Paul Little at [7], shows how expensive uncertainty about this can be.
5. Do not rely on a win on meaning to fund the case. A favourable meaning ruling will not normally produce an immediate costs order or a payment on account. The costs are recovered only if the party goes on to win the action.
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Conclusion
Paul Little Construction v Byrne confirms that Sharif v Associated Newspapers remains the starting point for the costs of a preliminary issue trial in libel. Costs in the case is the usual order, and the party seeking anything else must justify it. The reasoning in Sharif is straightforward: if meaning had been decided at trial, its costs would have been absorbed into the costs of the action, and bringing the issue forward should not change who pays.
The exception is narrow. A party must show that its opponent took an unreasonable stance on meaning and that this caused unnecessary costs. Partial or even substantial success on meaning does not meet that test, and the mixed outcomes in both cases show why a clear winner on these issues is rare.
For defamation litigants the practical effect is that the costs of meaning sit with the rest of the case until trial or settlement. Eardley J's closing remarks about mediation in a dispute over two online reviews are a reminder that those costs can become out of proportion to what is at stake. This analysis forms part of Mackenzie Costs' case law coverage for costs lawyers and litigation practitioners.
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Citation: Paul Little Construction Ltd v Byrne [2026] EWHC 2577 (KB); Sharif v Associated Newspapers Ltd [2021] EWHC 343 (QB)
Full judgments available at: National Archives: Paul Little Construction v Byrne and National Archives: Sharif v Associated Newspapers
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