In a unanimous judgment ( UKSC 33) handed down today the UK Supreme Court dismissed the appeals by Times Newspapers, Associated Newspapers and MGN against orders that they pay success fees and after the event insurance premiums (“additional liabilities”) under conditional fee agreements (“CFAs”) in libel and privacy claims.
The newspapers 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) amounted to a disproportionate interference with their rights under article 10 of the Convention.
The newspapers relied on the decision of the Court of Human Rights in MGN v United Kingdom. The Court said that, because the Government was not a party to the appeal, it would not decide whether there was a general rule that, where a claim involves restricting the defendant’s freedom of expression it would normally infringe the defendant’s Article 10 rights to require it to pay additional liabilities (“the Rule”).
The Court left this point open but dealt with the remaining issues on the assumption that it should follow the MGN case so that the Rule did apply.
Nevertheless, the Court held that to deny the claimants in the Miller and Flood cases a right to recover the premiums would deny their rights under Article 1 of the First Protocol. Citizens are entitled to assume that the law will not be changed retrospectively to their detriment. Amending the costs orders in the Miller and Flood cases would undermine the rule of law
As a result, the just and appropriate order under section 8(1) of the Human Rights Act 1998 was to dismiss these appeals
Same reasoning applied in the Frost case but, in addition, the Rule could not have any application on these facts. The information was obtained illegally and there was no reasonable expectation that its publication in the public interest. The Article 10 rights of MGN were engaged but should not be given anything like the sort of weight which they were given in MGN. As as result, this appeal was dismissed as well.
The separate appeal against the exercise of the Judge’s discretion on costs in the Flood case was also dismissed.
The Court’s Press Summary is available here [pdf]
We will have a full case note in due course.