CFAs face new challenge in Lords

Mirror argues conditional fee agreements infringe Article 10

The long-running dispute between Naomi Campbell and The Daily Mirror returns to the House of Lords today with a challenge to conditional fee agreements in media cases.


In May last year, the House of Lords (by a 3:2 majority) allowed Naomi Campbell’s appeal against the Court of Appeal decision in The Daily Mirror‘s favour. The newspaper was ordered to pay the costs of Ms Campbell’s appeal to the Lords. The solicitors and barristers instructed by her in relation to the appeal were acting on a CFA with an uplift.


The Mirror is set to argue that the present system, which allows for claimants to obtain funding by means of conditional fee agreements with uplifts on costs of up to 100% recoverable against unsuccessful media defendants, encourages interferences with freedom of expression in violation of Article 10 of the European Convention on Human Rights. It contends that a court must have regard to Article 10 when it awards costs against a defendant, and ensure that costs awards are reasonable and proportionate. In particular the newspaper will argue that the uplift on the CFA entered into by Naomi Campbell should be disallowed.


Opposing the appeal, Naomi Campbell will argue that, in the absence of any alternative system of funding, CFAs are necessary to ensure that litigants have effective access to justice, as guaranteed by Article 6 of the Convention. She will also argue that uplifts, which are designed to be revenue neutral over time, are an integral part of the CFA system and ensure that solicitors are not left with a shortfall overall.


The unusual hearing before a full panel of 5 Law Lords was ordered by Lords Nicholls and Hope and Baroness Hale after receiving a petition from The Mirror challenging the CFA costs. Whilst costs arguments are usually heard by special judges in the High Court, the House of Lords retains a supervisory jurisdiction over costs issues relating to matters before the Appellate Committee.


Judgment will be reserved to a later date.


5RB‘s James Price QC is leading counsel for Naomi Campbell (instructed by Schillings).