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(2b) Application of the rule in MGN v UK: FrostWills_A (2)

The Court dealt separately with the Frost appeal. Lord Neuberger considered that, having regard to activities from which the Frost claims arose (phone hacking, blagging etc), MGN’s art 10 rights carried very limited weight. This was, therefore, an exceptional case in which a publisher could not rely on the rule in MGN v UK [58] and [63].

(3) Declaration of incompatibility

None of the appellants sought a declaration of incompatibility in regard to the 1999 Act (let alone LASPO). This was not a situation to which HRA, s 4 applied. The Court nevertheless considered and declined to grant a declaration of incompatibility [64]. Lord Neuberger added that a conclusive determination that the rule in MGN v UK applied domestically (while not assisting the appellants on the facts of these cases) could have consequences similar to making a declaration of incompatibility [29]. His Lordship was concerned that dis-applying the relevant parts of the CPR and practice directions would undermine the 1999 Act regime more broadly [44].

The Times’ additional ground of appeal

The Court dismissed The Times’ argument that the judge in Flood erred in the exercise of her discretion when awarding costs to Mr Flood. Amongst the contentions rejected by Lord Neuberger was the assertion that Mr Flood should not be regarded as the overall winner because the newspaper succeeded with its Reynolds defence in respect of claims until a given date – Mr Flood had succeed only in relation to articles remaining online after he had been exonerated in respect to the allegations.

Comment

This judgment has not definitively settled the vexed issue of the recoverability of CFA success fees and ATE insurance premiums in publication cases. Although the Court declined to express “a concluded view” on the application in English law of the rule in MGN v UK, it strongly inclined to the view that requiring defendant media organisations to pay additional liabilities in publication cases would ordinarily violate their Art 10 rights. Yet the legal framework permitting the recovery of additional liabilities from such defendants remains standing and is ostensibly untouched by this decision.

Judicial sensitivity to policy concerns is an important feature of this decision. Aware of the ongoing discussions on ensuring access to justice for claimants and defendants in this area, as well as the polarised debate surrounding the Crime and Courts Act 2013, s 40, the Court was understandably reluctant to venture too far or to say anything which would restrict government/parliament’s room for manoeuvre.

The dismissal of the appeals in Flood and Miller was primarily the result of concerns about the retroactive alteration of accrued rights. It is doubtful that such considerations would carry the same the weight in any future challenges to orders permitting the recovery of additional liabilities. It is notable that the Court considered that the respondent in Frost had a weaker argument in respect of their A1P1 rights because they entered their CFAs after the decision in MGN v UK [57]. Such reasoning may apply with greater force in future challenges to the recovery of success fees for CFAs and ATE insurance entered into after this judgment. Equally, given that the Supreme Court declined to strike down the additional liability provisions, it is arguable that litigants incurring additional liabilities after this decision continue to have a legitimate expectation that they will be recoverable.

Although A1P1 arguments may carry less weight in future, Lord Neuberger indicated that greater emphasis might be given to the Art 6 rights of claimants (not relied on by the appellants) when assessing the Convention compatibility of the recovery of additional liabilities from defendants [49] – [50]. Further, having regard to its A1P1 conclusions, the Court did not see it necessary to address the Art 8 implications (for claimants) of the (non)recoverability of additional liabilities, on which submissions had been made.

This judgment makes it less likely that claimants will be able to recover additional liabilities from defendant publishers. For the time being, however, the recoverability of such sums remains possible and will depend on the strength of the competing rights in any given case.

Please see Part One here.