CFAs ‘incompatible’ with ECHR: Report

Comparative study on defamation costs critical of 'no win no fee' agreements

A study commissioned by Associated Newspapers has concluded that Conditional Fee Agreements are incompatible with Articles 6 and 10 of the European Convention on Human Rights.

The study compared costs in defamation cases in English procedings to those in other European countries and found that in England and Wales a claimant on a CFA incurred higher legal costs than a defendant without a CFA whereas in almost all the other jurisdictions included in the study the level of legal costs tended to be equal. According to the study: "this difference can be explained by the fact that where a client has the benefit of a CFA or similar agreement, the client no longer has an incentive to exercise control over the legal work being done and to resist cost increases."

The University of Oxford’s research unit which carried out the study, the Programme in Comparative Media Law and Policy (PCMLP), concluded that the CFA scheme: "creates a financial disincentive to defend the claim, and thereby undermines the media outlets’ own rights under Article 6" and that this "must inevitably lead to an interference with their right to freedom of expression".

The study compared defamation proceedings in the following jursidictions: Belgium, Bulgaria, Cyprus, England and Wales, France, Germany, Ireland, Italy, Luxembourg, Malta, Romania, Spain and Sweden. England and Wales, followed by Ireland and Cyprus were the jurisdictions which tended to award the highest level of damages.