MGN wins Campbell success fee ruling

Strasbourg rules that Campbell CFA success fee violated Article 10; rejects challenge to liability decision

The European Court of Human Rights has found that the order that MGN pay the CFA success fee in Naomi Campbell’s landmark privacy claim against the publisher violated Article 10, although the decision on liability was not such a violation.

MGN claimed that the decision of the House of Lords in Campbell v MGN Ltd violated Article 10 in two respects, contending that both the award of damages and the award of costs, including the CFA success fee, against it amounted to disproportionate interferences with its right to freedom of expression.

By a decision of six to one (Judge Bjorgvinsson  dissenting in part) the Strasbourg court held that the House of Lords’ finding on the substantive issue was not a violation of the Article 10: the interference was prescribed by law and was necessary for the reasons given by the House of Lords.

However, the court was unanimous that, on the facts of this case, the requirement to pay the success fees was an interference with MGN’s Article 10 right. The court accepted that the CFA with success fees sought to achieve the legitimate aim of "the widest public  access to legal services for civil litigation funded by the private sector and thus the protection of the rights of others within the meaning of Article 10." However, the depth and nature of the "flaws" in the system were such that they exceeded the broad margin of appreciation to be acccorded to the State. On the facts of the case – including Ms Campbell’s wealth and the limited amount of CFA work carried out by her lawyers – the requirement to pay the success fees was disproportionate and amounted to a violation of Article 10.

The decision will add further weight to the campaign to reform the CFA regime, particularly in defamation and privacy claims. 

Read the full 5RB case report and judgment here.

5RB‘s Desmond Browne QC and Mark Warby QC (instructed by Davenport Lyons) acted for MGN during the domestic litigation, while James Price QC (instructed by Schillings) appeared for Naomi Campbell at the House of Lords hearing on costs.