Supreme Court declares pre-LASPO CFA regime compatible with the ECHR
The Supreme Court this morning handed down its much anticipated judgment in Coventry v Lawrence [2015] UKSC 50.
In addition to an appeal on the substantive merits of the case, the Supreme Court was asked to determine whether the CFA regime that was in place prior to the changes introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO“) was compatible with the European Convention of Human Rights (“ECHR“).
The Respondents, who were unsuccessful at trial and ultimately on appeal, had argued that their liability to pay the Appellants’ success fees and ATE insurance premiums incurred under CFAs they had entered into was incompatible with their rights under Art 6 ECHR (the right to a fair trial) and/or Article 1 of the 1st Protocol to the ECHR (“A1P1“) (which protects the right to peaceful enjoyment of one’s possessions).
The Respondents had accepted that they could not challenge their liability for the base fees, subject to any challenge to the Appellants’ bill of costs.
By a majority of 5-2 the Supreme Court held that the pre-LASPO CFA regime, which remains applicable in a small minority of claims including privacy and publication cases, is compatible with the ECHR.
The majority held that the decision of the ECtHR in MGN v UK (2011) 53 EHRR 5, which determined that the pre-LASPO CFA regime was incompatible with Art 10 ECHR (right to freedom of expression), concerned the balancing of the rights guaranteed by Art 10 ECHR with Art 6 ECHR, and was therefore an exercise of a different character to the one in the present case.
The issue in this case was not whether the pre-LASPO regime had its flaws, but whether it was a proportionate way of achieving the legitimate aim it pursued. The Court found that it did: it was (i) justified by the need to widen access to justice to litigants following the withdrawal of legal aid; (ii) it was made following wide consultation and (iii) it fell within the wide area of discretionary judgment of the legislature and rule-makers to make. The scheme as a whole was a rational and coherent means of providing access to justice and in the circumstances this led to the conclusion that the scheme was not incompatible with Art 6 ECHR or A1P1.
The full judgment is attached below, and a case report on the 5RB website will follow shortly.
5RB’s Chloe Strong acted as Junior Counsel for the Media Lawyers Association who intervened in the appeal.