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Clara Hamer
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Supreme Court refuses to overturn CFA regime in art 10 cases

Case date: 11/04/2017

Court: Supreme Court

Area/s of law: Article 10 ECHR

Barrister/s: Richard Rampton QC, Kate Wilson



The Supreme Court has dismissed appeals from three news publishers which were seeking to overturn their respective liabilities to pay success fees and ATE premiums. Lord Neuberger gave a judgment with which the rest of the court agreed. 

The appellants in Times Newspapers v Flood, Associated Newspapers v Miller and MGN v Frost argued that the Supreme Court should apply the decision of the European Court of Human Rights in MGN v UK, in which Strasbourg had held that the CFA regime put in place pursuant to the Access to Justice Act 1999 exceeded the broad margin of appreciation afforded to member states and infringed the publisher’s article 10 rights. 

Despite holding that the decision in MGN v UK was concerned with the CFA regime “in principle”, Lord Neuberger held that it did not decide that “article 10 is automatically infringed in every case involving freedom of expression where an unsuccessful defendant has to reimburse the claimant the success fee and ATE premium, but it does mean that it will normally be the case” (at [34]). 

However, Lord Neuberger declined to decide whether MGN v UK should be domestic law – partly because the Government was not represented. Instead, his reasoning proceeded on the assumption that the decision had laid down a ‘rule’ that recoverable success fees and ATE premiums infringed art. 10 rights.  However, he went on to hold that additional liabilities were recoverable by claimants. Lord Neuberger held that to decide otherwise would infringe the property rights guaranteed by article 1 of the 1st Protocol to the Convention of claimants, such as Mr Flood and Mr Miller. The Court attached great weight to the legitimate expectations of litigants who had entered into CFAs after the regime had been introduced by the Government and subsequently applied and endorsed by the courts, including the House of Lords (at [45]-[47]). “It is a fundamental principle of any civilised system of government that citizens are entitled to act on the assumption that the law is as set out in legislation … secure in the further assumption that the law will not be changed retroactively.” (at [53]).  Legal certainty therefore won the day. 

The consideration of ‘legitimate expectations’ was different in Frost from the other appeals, because all the claimants in those claims had entered into CFAs after Strasbourg’s decision in MGN v UK. However, it was held that those claimants could still rely upon the domestic regime, which had not been altered (for defamation and privacy proceedings) following MGN v UK. More importantly, even if that decision were to apply domestically, Lord Neuberger held it would not extend to the facts of Frost where the publisher had obtained information unlawfully and there was no public interest in the information obtained (or likely to have been obtained) by hacking and blagging (at [63]). 

Richard Rampton QC and Kate Wilson, instructed by Bates, Wells & Braithwaite LLP, represented Times Newspapers Ltd.

The judgment is available here.

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