In a judgment delivered at the High Court today in the case of Miller v Associated Newspapers, Mr Justice Mitting rejected a Human Rights Act challenge to recoverable success fees and ATE insurance premiums brought by the Daily Mail. However, he granted a certificate for a “leapfrog” appeal direct to the Supreme Court.
The judgment was given in the course of a costs assessment in a libel case brought by businessman Andrew Miller against the Daily Mail arising out of an article published on 2 October 2008.
Mr Miller brought proceedings with the aid of a Conditional Fee Agreement (“CFA”) with his solicitors and counsel. The trial took place in May 2012 and in a judgment handed down in December 2012 ([2012] EWHC 3721 (QB)) Sharp J found for the claimant and awarded him damages of £65,000 and his costs. In January 2014 the Court of Appeal dismissed the Daily Mail’s appeal ([2014] EWCA Civ 39). On 31 October 2014 the Supreme Court dismissed the Daily Mail’s application for permission to appeal.
Mr Miller’s costs of the case and the appeals were then subject to assessment by the Costs Judge. On 9 November 2015 the Senior Costs Judge, Master Gordon-Saker ordered that the following question be referred to a Judge of the Queen’s Bench Division:
“Whether the award of additional liabilities to the Claimant would be incompatible with the Defendant’s right of expression as a publisher under Article 10 of the European Convention on Human Rights”
This issue was heard by Mitting J on 4 February 2015 and he gave judgment today.
The Daily Mail relied on the decision of the Court of Human Rights in MGN v United Kingdom ([2011] ECHR 919) – in which it has been held the success fee payable by the newspaper was a violation of its Article 10 rights.
In relation to the success fee the judge noted that the issue had been considered by the House of Lords in Campbell v MGN (No.2) ([2005] 1 WLR 3394) which had held that recoverable success fees were not incompatible with Article 10. He held that he was bound by this decision and, as a result, dismissed the first part of the argument.
In relation to ATE premiums, the judge noted that this had not been in issue in either MGN v UK or Campbell (No.2). He rejected the Daily Mail’s argument that recoverable premiums were incompatible with Article 10. In particular, such premiums were prescribed by law, for a legitimate aim and were necessary in a democratic society.
On the last point, the judge held that the risks that ATE premiums impose on litigation were not unacceptably high – they were subject to appropriate controls. The Judge said that if the Court of Human Rights had been faced with this as a discrete issue it would not violate the United Kingdom’s margin of appreciation.
The Judge granted a “leapfrog” certificate under section 12 of the Administration of Justice Act 1969, enabling the Daily Mail to apply directly to the Supreme Court for permission to appeal. It seems likely that the case will be joined with the appeal in Flood v Times Newspapers (where the Supreme Court have granted permission to appeal, inter alia, on the issue as to the compatibility of the CFA regime with Article 10).
This latest legal action by the Daily Mail has not received any coverage in the newspaper or in MailOnline. A number of commentators on have drawn attention to the apparent inconsistency of the Daily Mail – known for its strong and principled opposition to the Human Rights Act – relying on the Act to attack a piece of costs legislation enacted by the sovereign British parliament.
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