Reference: Application No 39401/04
Court: European Court of Human Rights
Judge: Mijovic, Bratza, Bjorgvinsson, Hirvela, Bianku, Vucinic, de Gaetano
Date of judgment: 18 Jan 2011
Summary: Human Rights - Breach of Confidence - Invasion of Privacy - Misuse of Private Information - Article 8 - Article 10 -European Convention on Human Rights - whether the award of damages for breach of confidence due to the publication of details concerning Ms Naomi Campbell's treatment for drug addiction, together with the impugned photographs, constituted a disproportionate interference with MGN's right to freedom expression under article 10
Human Rights- - Breach of Confidence - Invasion of Privacy - Misuse of Private Information - - Article 8 - Article 10 -European Convention on Human Rights - Costs - Conditional Fee Agreement - Success Fees - whether the award of costs, including success fees, constituted a disproportionate interference with MGN's right to freedom of expression under article 10
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On 18 October 2004, MGN Ltd lodged an application contesting the decision of the House of Lords in Campbell v MGN Ltd. The House of Lords held by a majority of 3-2 to overturn the unanimous decision of the Court of Appeal and re-instate the decision of the trial judge, Morland J, to award Ms Campbell damages for breach of confidence/ misuse of private information in respect of a front page article published by MGN Limited in The Mirror on 1 February 2001 headed, ‘Naomi: I am a drug addict’ together with other related articles and accompanying covertly taken photographs.
Ms Campbell was awarded her costs of the litigation and MGN Ltd was served with a legal bill of £1,086,296.47, £594,470 of which related to the House of Lords appeal which Solicitors and Counsel for Ms Campbell acted on a CFA, with success fees of 95% and 100% respectively. Thus the ‘profit’ element of the legal bill was £288,468 whilst disbursements were £26,020. MGN petitioned against liability to pay any part of the success fee on the basis that, in the circumstances of the case, the liability was so disproportionate as to infringe their Article 10 rights.The House of Lords held that the scheme introduced by Parliament was a proportionate measure to provide litigants with access to justice, having regard to its effect on the article 10 right to freedom of expression. It was a funding regime that did not become disproportionate if used by wealthy litigants and there was nothing that required a solicitor to inquire as to means prior to agreeing to act on a CFA. MGN was also ordered to pay the costs of the hearing on costs in the House of Lords which also included a claim for a success fee.
In April 2006 MGN Ltd lodged further submissions complaining that the award of costs, including the success fees, constitute a disproportionate interference with MGN’s article 10 rights.
(1) Whether the award of damages for breach of confidence due to the publication of details concerning Ms Naomi Campbell’s treatment for drug addiction, together with the impugned photographs, constituted a disproportionate interference with MGN’s right to freedom expression under article 10.
(2) Whether the award of costs, including success fees, constituted a disproportionate interference with MGN’s right to freedom of expression under article 10
(1) There was no violation of article 10 (Judge Bjorgvinsson dissenting in part). The finding by the majority of the House of Lords was an interference with MGN’s right to freedom of expression . The interference was prescribed by law deriving from the common law of the tort of breach of confidence and its aim, protecting the rights of others, was legitimate. However, the interference was necessary for the reasons given by the majority in the House of Lords which included the intimate and private nature of the additional information about Ms Campbell’s physical and mental health and treatment, the fact that the publication of additional material had been harmful to Ms Campbell’s continued treatment, the fact that the photographs were taken covertly and deliberately with a view to publication and the lack of any compelling need for the public to have the additional information, the public interest being already satisfied by the publication of the core facts of her addiction and treatment: 
(2) There was a violation of article 10. The requirement to pay success fees, as an unsuccessful defendant in breach of confidence proceedings, constituted an interference with an applicant’s right to freedom of expression. Whilst the interference was prescribed by law and had a legitimate aim of achieving the widest public access to legal services for civil litigation, the depth and nature of the flaws in the CFA system were such that the Court concluded that the impugned scheme exceeded even the broad margin of appreciation to be accorded to the UK. Here, Ms Campbell was wealthy and not excluded from access to justice for financial reasons and her lawyers did limited CFA work (which limited their potential to act for impecunious claimants with access to justice problems) and MGN’s case was not without merit, yet it was required to pay a large success fee. In such a case, the requirement to pay success fees was disproportionate: -
Judge Bjorgvinsson points out in his dissenting judgment on the issue of liability that the majority “simply defers to the assessment made by the domestic courts [and] this approach is inconsistent with the ‘strict scrutiny’ that is usually found in this Court’s case law in balancing articles 8 and 10.” It is indeed a markedly more respectful approach to the UK’s highest court than shown to the German constitutional court in von Hannover v Germany. Perhaps this is because the court agreed with the majority in House of Lords and having set out the judgments in detail there was little more to say.
The big issue, though, is where this leaves the CFA regime and success fees. The finding of a violation of Article 10, and the criticism that the CFA scheme is so flawed that it exceeds even the broad margin of appreciation to be accorded to the State in respect of general measures pursuing social and economic interests, will require the government to reform the current scheme (which it intends to do in any event). How it will do so remains to be seen. The judgment draws no distinction between success fees per se and the level of a success fee pointing here to the wealth of Ms Campbell and the fact that her lawyers did not do much CFA-funded litigation, limiting their potential to act for impecunious claimants with access to justice problems. It is difficult, though, to see how success fees could be allowed in some media publication cases and not others and as such this judgment provides support to those campaigning against any level of success fees and even CFAs.