The appeals were each brought by media organisations challenging the compatibility of the recoverability of conditional fee agreement (CFA) success fees/uplift and after the event (ATE) insurance premiums (“additional liabilities”) in libel and privacy claims with Article 10 of the European Convention on Human Rights.
The media organisations argued that the scheme permitting courts to order the recovery of additional liabilities (under the Access to Justice Act 1999 and relevant provisions of the CPR and Costs Practice Direction) amounts to a disproportionate interference with their rights under article 10 of the Convention.
The primary issues that the Court was asked to determine were:
- Whether the recoverability of CFA success fees and/or ATE insurance premiums is a proportionate interference with the article 10 rights of the appellants and, by extension, media organisations generally.
- In addressing these questions the UKSC will consider whether to apply domestically the decision of the Strasbourg Court in MGN v UK and to therefore depart from the House of Lords’ decision in Campbell (No 2). And, if so, whether to extend the reasoning in MGN v UK to the recoverability of ATE insurance premiums.
- If one or both regimes is found to be incompatible with article 10, what is the appropriate remedy? In particular, should the relevant provisions be read down or disapplied so as to ensure compatibility, or should no such action be taken on the basis that the respondents, their lawyers and insurers had a legitimate expectation that additional liabilities would be recoverable and that that position would not be altered retrospectively?
The appeals were heard on 24, 25 and 26 January 2017 by Lords Neuberger, Mance, Sumption, Hughes and Hodge.
The decision is eagerly awaited by media lawyers. We had a case preview and a post about the possible implications of the judgment on 9 February 2017.