The court had to determine whether conditional fee agreement (CFA) legislation, which allowed the recovery of additional liabilities in defamation and privacy cases, was incompatible with ECHR art.10.

The claimants had sought damages for invasion of privacy after their phones were hacked by the defendant newspaper publisher. Eight of the claimants had gone to trial, where they were successful; 12 other cases were settled. The claimants were awarded costs and sought to recover a success fee uplift provided for under their CFAs, and after the event (ATE) insurance premiums they had paid. Prior to the costs assessments, the instant court was asked to determine whether (i) the CFA scheme, insofar as it allowed the recovery of such additional liabilities in defamation and privacy cases, was incompatible with the defendant’s right to freedom of expression under art.10; (ii) in relation to the eight cases decided at trial, the defendant should be debarred from raising the incompatibility point in relation to the uplift on the ground that, at the trial, it had actually relied on the availability of an uplift under the CFAs in order to oppose the claimants’ claim for a 10% damages uplift by virtue of Simmons v Castle [2012] EWCA Civ 1288, [2013] 1 W.L.R. 1239.

HELD: (1) In Campbell v Mirror Group Newspapers Ltd (Costs) [2005] UKHL 61, [2005] 1 W.L.R. 3394, the House of Lords decided that the overall CFA scheme, which allowed recovery of an uplift, was compatible with art.10 because it was permitted under art.10(2). Although the European Court of Human Rights in MGN Ltd v United Kingdom (39401/04) [2011] 1 Costs L.O. 84 reached a contrary view, the laws of precedent required the court to follow the English decision, Miller v Associated Newspapers Ltd [2016] EWHC 397 (QB) applied, Campbell followed, MGN not applied. The position of the ATE premiums was technically different as those were not an issue in Campbell. Accordingly, neither the House of Lords nor the ECtHR had ruled on the recovery of those premiums. However, it was very hard to see how they fell to be treated differently, Miller applied. Accordingly, on the basis of binding English authority, the English legislative regime which permitted the recovery of additional liabilities was not incompatible with art.10 (see paras 15-19, 37 of judgment).

(2) The defendant was debarred from challenging the uplift in relation to the eight cases decided at trial. At that trial, the existence of CFAs and the right of recovery in relation to them was actually being relied on by the defendant. Allowing the defendant to now succeed on its argument that the CFA provisions which allowed for such an uplift were incompatible with art.10 would be allowing it to approbate and reprobate in a manner which was contrary to principle, Express Newspapers Plc v News (UK) Ltd [1990] 1 W.L.R. 1320 applied. It was an inconsistency which should not be allowed. Alternatively, it was an abuse of process. Therefore, even if the English legislative regime was incompatible with art.10, the defendant would not be entitled to rely on any incompatibility to resist recovery of an uplift in relation to the eight cases decided at trial, Simmons referred to (paras 26-37).

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