On 2 August 2016, the Supreme Court (Lords Mance, Clarke and Wilson) gave the Daily Mail permission to appeal [pdf] in the case of Miller v Associated Newspapers Ltd, a human rights challenge to CFA success fees and ATE insurance.
This is a “leapfrog” appeal from a decision of Mitting J on 5 Feburary 2016 ([2016] EWHC 397 (QB)) who rejected the Daily Mail’s arguments based on the Human Rights Act.
In relation to the success fee the judge noted held that issue had been decided 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. He also rejected the argument that recoverable ATE premiums were incompatible with Article 10. We had a post about this decision at the time
It seems likely that this case will be heard at the same time as the appeal in Flood v Times Newspapers – in which permission to appeal [pdf] was granted on 3 May 2016. In that case, the appellant seeks a declaration that the success fee and ATE premium claimed by respondent are irrecoverable on the ground that the substantial increase over base costs represented by those costs are an unjustified interference with the appellant’s Article 10 rights.
There is a third related matter pending before the Supreme Court. MGN is seeking “leapfrog” permission to appeal from the decision of Mann J in 8 Representative Claimants v MGN Ltd ([2016] EWHC 855 (Ch)). In that case, as in Miller, the judge concluded that, on the basis of binding English authority, the legislative regime which permits the recovery of success fees and ATE premiums was not incompatible with Article 10.
The issue of the compatibility of the CFA regime with Article 10 was raised by the Media Lawyers Association in Lawrence v Fen Tigers (No.3) [2015] 1 WLR 3485 but was not decided as Article 10 was not engaged in that case. The joined appeals in Flood and Miller will give the Supreme Court the opportunity to consider, for the first time, whether the CFA regime which continues to apply in publication cases is compatible with the human rights of publishers.
If the appeal is successful it could mean an end to CFAs in publication cases. The hearing is expected to take place in 2017. The result will be eagerly awaited by media law practitioners.
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