In the aftermath of the long running libel clam by Bruno Lachaux against two newspapers, the United Kingdom government has accepted that the success fees recovered by the claimants breached Article 10 and has paid more than £500,000 to the defendants.This settlement was the last act in an extraordinarily long running case which proceedings were issued over eight years ago and concluded, in the domestic courts nearly two years ago. It became the leading case on the meaning of section 1(1) of the Defamation Act 2013.
The claim in Lachaux v (1) Independent Print Ltd (2) Evening Standard Ltd concerned articles published in January and February 2014. After a meaning determination in March 2015, there was a trial of a preliminary issue on serious harm which was appealed to the Supreme Court ( UKSC 227). The case was tried in February and March 2021, resulting in judgment for the claimant, handed down in July 2021 ( EWHC 1797 (QB)).
In December 2021 the defendant newspapers lodged an application in the Court of Human Rights (2511/22). This was communicated to the United Kingdom on 31 August 2022. There were three questions for the parties:
1. Did the recoverability of the claimant’s success fees violate the applicants’ rights under Article 10 of the Convention (see, mutatis mutandis, MGN Limited v. the United Kingdom (no. 39401/04, 18 January 2011)?
2. Did the operation of the costs regime in the present case raise any other issues under Article 10 of the Convention?
3. Have the applicants exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention?
On 16 February 2023 the applicants notified the Court that a friendly settlement had been reached and on 13 April 2023 the Court expressed satisfaction that the settlement was based on respect for human rights and agreed to strike the case out of the list. Under the terms of the settlement it was agreed that the sum of £502,000 would be awarded to the defendant newspapers for pecuniary and non-pecuniary damage, costs and expenses.
In the 2017 case of Times Newspapers v Flood ( UKSC 33) the Supreme Court was prepared to assume that the Court of Human Rights case law laid down a general rule that where a claim involved restricting a newspaper publisher’s freedom of expression it would normally infringe its Article 10 right to require it to reimburse a success fee and ATE premium.
It seems that, in the light that judgment (based on the 2011 case of MGN Ltd v United Kingdom), the UK Government took the view that it could not defend the regime for the recoverability of success fees in publication cases
Recoverable success fees were of course abolished on 6 April 2019 – although ATE premiums remain recoverable from defendants. This aspect of the CFA regime was not challenged by the applicants in this case.