Supreme Court hears costs appeal

Media Lawyers Association intervenes in case in which court will consider the compatibility of the pre-LASPO CFA regime with the ECHR

The Supreme Court will hear the residual part of the appeal in Coventry v Lawrence this coming Monday (the 9th February). Although the underlying appeal concerns a nuisance case (Lawrence v Fen Tigers and ors [2014] UKSC 46 and [2014] UKSC 13), the decision relating to this part of the appeal will be of significance for media law practitioners because the Court will be addressing the question of the compatibility of the Conditional Fee Agreement (CFA) regime which existed prior to the changes introduced by the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) on 1 April 2013, with the European Convention of Human Rights.

The CFA scheme changed after the implementation of ss.44 and 46 LASPO in April 2013 (which removed the recoverability of success fees and ATE insurance premiums from the losing party) in respect of the vast majority of civil actions brought in the UK. However, the pre-LASPO CFA scheme continues to remain in place for privacy and publication claims, pending the introduction of a new costs protection mechanism in those cases (see the Ministerial Statement of the Under Secretary of State for Justice made on 12 December 2012).

The Respondents to the appeal in Coventry, who lost the underlying case and now face the prospect of a large costs bill (including a significant sum in respect of the Appellants’ success fees and ATE insurance premium), argue a breach of their ECHR Article 6 rights to a fair trial, and A1P1 rights to peaceful enjoyment of their property, if they have to pay the amounts relating to the success fee and ATE insurance premium.

The importance of the appeal is clear: as Lord Neuberger explained in the decision handed down after the part-heard appeal last year ([2014] UKSC 46 at [43]): “a determination by a United Kingdom court that the provisions of the 1999 Act infringed article 6 could have very serious consequences for the Government. Although the Strasbourg court would not be bound by the determination, it would, I suspect, be likely to agree or accept that conclusion, so that those litigants who had been “victims” of those provisions could well have a claim for compensation against the government for infringement of their article 6 rights.”

Several different interested parties have been given permission to intervene in the case given the potential significance of the decision including the Secretary of State for Justice, the Department of Justice for Northern Ireland, the Bar Council, and the Law Society.

5RB‘s Chloe Strong, led by Gavin Millar QC, will be appearing on behalf of the Media Lawyers Association, instructed by Keith Mathieson and Dania Rifaat of RPC. The Association contends the imposition of success fees and ATE insurance premiums on the losing party in privacy and publication cases amounts to a breach of that party’s Article 10 freedom of expression rights (pursuant to the ECtHR’s decision in MGN v UK (2011) 53 EHRR 5), as well as their Article 6 rights.

The appeal will be heard by the Supreme Court on the 9th, 10th and the morning of the 12th February 2015.