ECHR not binding over legal costs appeal, rules judge

Topics: Costs, fees and funding,Human rights

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  • Royal Courts of Justice, Strand London

A costs judge has rejected an attempt by a newspaper group to avoid legal costs because an order infringed its right to freedom of expression.

In BNM v Mirror Group Newspapers Limited, the defendant contended that a costs order in favour of the claimant should not include either success fees or after-the-event insurance.

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MGN said if the court were to make any such order, it would be acting incompatibly with the group's right to freedom of expression as a publisher under article 10 of the European Convention on Human Rights.

The newspaper group had agreed to pay £20,000 damages and costs after the claimant obtained an injunction preventing publication of details of her relationship with a Premier League footballer.

The claimant instructed London firm Atkins Thomson in March 2013 and entered a conditional fee agreement in April 2013 which provided for a 100% success fee but a discounted success fee if the claim concluded before trial.

A similar agreement was entered into with counsel.

The costs claimed were for almost £242,000, which included a 60% solicitor’s success fee, 75% counsel fee and after-the-event insurance premium of £58,000.

Subject to the article 10 appeal, the court allowed the success fees of the solicitors and both counsel at 33% and the ATE insurance premium in the sum claimed.

MGN sought to argue that recovery of additional liabilities was unlawful and would place the UK in breach of its obligations under the ECHR.

But Master Gordon-Saker, sitting in the High Court (Senior Costs Court Office), said decisions of the ECHR are not binding on domestic courts, and that the Human Rights Act merely provides that domestic courts take them into account.

He ruled that given the precedent of Campbell v MGN Limited (No 2), in which the House of Lords ruled the success fee should not be disallowed, was binding.

‘I have to conclude that an order permitting the claimant to recover from MGN a reasonable success fee would not be a violation of MGN’s right to freedom of expression as a publisher,’ said Gordon-Saker.

As a postscript, the judge said the Civil Justice Council had suggested a scheme in April 2013 to replace the regime of recoverable additional liabilities in publication and privacy proceedings, but the government had not acted on this recommendation.

Readers' comments (5)

  • Surely the outcome was obvious to all involved. This case can only have been brought to put the issue of success fees and premiums being recoverable in defamation claims back in the spotlight at a time when government interference with legal costs is at fever pitch levels and in light of the bizarre Coventry case (incidentally re interference, some good interference - Jackson, with the exception of costs budgeting bungled format, rules and implementation, some bad - proposed increase in small claims track limit so people with a nasty injury cannot bring a claim unless they are an expert on liability, causation and quantum issues and the civil procedure).

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  • Yet another example of unconscionable cheek by the fourth estate. I'd almost go as far as to suggest their counsel should have been reprimanded for accepting their instructions to argue the point.

    Can we all now say that there's a public interest in our bringing our cases because they help determine what the law is?

    I still haven't got over the preposterous fact that it's (rightly) an offence for public officials to take bribes from the press to give information, but if it is even still an offence to pay them, circumstances no longer seem to exist where anybody will ever again get convicted of paying them.

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  • I'm not sure how the facts differ from Coventry v Lawrence (no 3) but, in the light of this judgment, I do wonder how the lawyer(s) acting for the paying party in this case pitched the prospects of success.

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  • *that judgment

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  • The importance of the EHRC to costs is that our costs regime, in the absence of legal aid, means the UK is in contravention of its obligation to provide fair trials.

    The LCJ says justice is unaffordable. So it is. That he says so is sufficient proof that the UK is in breach of a number of international obligations, including the EHRC.

    Robert Morfee

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