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On 18 January 2011 the Fourth Section of the Court of Human Rights handed down its long awaited judgment in the case of MGN v United Kingdom (Case No. 39401/04 [2011] ECHR 66). The Mirror Group’s Article 10 challenge to recoverable success fees was unanimously upheld by the Court although its challenge to the underlying judgment failed by 6 votes to 1.

In its original application to Strasbourg MGN contested the decision of the House of Lords in Campbell v MGN ([2004] 2 AC 457) that it breached Ms Campbell’s privacy by the publication of an articles in February 2001 in which it divulged details about her drug addiction therapy.

Breach of Confidence

In relation to this aspect of the case, the Court emphasised the “pre-eminent role of the press in a State governed by the rule of law” [141]. However, it to make it clear that

“when verifying whether the authorities struck a fair balance between two protected values guaranteed by the Convention which may come into conflict with each other in this type of case, freedom of expression protected by Article 10 and the right to respect for private life enshrined in Article 8, the Court must balance the public interest in the publication of a photograph and the need to protect private life … The balancing of individual interests, which may well be contradictory, is a difficult matter and Contracting States must have a broad margin of appreciation in this respect since the national authorities are in principle better placed than this Court to assess whether or not there is a “pressing social need” capable of justifying an interference with one of the rights guaranteed by the Convention” [142]

It also pointed that the the publicationof photographs and articles for the purpose of satisfying “the curiosity of a particular readership regarding the details of a public figure’s private life, cannot be deemed to contribute to any debate of general interest to society despite the person being known to the public” [142]. In such circumstances, “freedom of expression calls for a narrower interpretation”. The Court also emphasised that the publication of photographs, is

“an area in which the protection of the rights and reputation of others takes on particular importance. Photographs appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life or even of persecution” [143]

Against this background the Fourth Section examined whether the finding of breach of confidence by the domestic court disclosed relevant and sufficient reasons through an examination of whether the standards applied to the assessed facts were in conformity with the principles embodied in Article 10 of the Convention. It described the reasons of the majority of the House of Lords as “convincing” [151] – referring, in particular, to the intimate and private nature of the relevant information and the finding that its publication was not necessary to ensure the credibility of the story. In all the circumstances, the finding of a breach of confidence by the House of Lords was not a violation of Article 10 [156].

Six judges agreed with this finding. Judge Björgvinsson dissented. He agreed with the Court of Appeal and the dissenting speeches of Lords Nicholls and Hoffmann that the additional ifnormation served mostly to “add colour and conviction” to the story. He was of the view that the publication of this material “fell within the journalistic margin of the press in decidiing the way in which a legitimate story is presented”.

Recoverable Success Fees

The second aspect of the case concerned a complaint by MGN that, following the House of Lords decision on the breach of confidence issue, it was obliged to pay unreasonably high court legal costs on account of a “conditional fee arrangement” and, the “success fee” for which domestic law allowed. MGN challenged the decision in Campbell v MGN (No.2) ([2005] 1 WLR 3394) on Article 10 grounds.

The Court focussed on the success fee which was recovered by Ms Campbell’s lawyers (it noted that the applicant did not complain about recoverable ATE premiums [198]). It accepted that such success fees were an interference with the Article 10 rights of the applicant [192] but also that they had the legitimate aim of wide public access to legal services [197].

The issue was, therefore, was one of proportionality – whether there was a fair balance between freedom of expression protected by Article 10 an individual’s right of access to court protected by Article 6 of the Convention [199]. The Court noted that public consultation of the CFA regime had highlighted what it described as “fundamental flaws” underlying the recoverable success fee scheme ([203]). It referred to the Jackson Review and his recommendation for far reaching reform, summarising the position as follows:

“within four years of the introduction by the 1999 Act of recoverable success fees to the existing CFA scheme, concerns expressed in the industry about consequent excessive costs orders, notably, in defamation and other publication including privacy cases, led to detailed public consultations by the Ministry of Justice and inquiries by Committees of the House of Commons, as well as a far-reaching review of costs in civil litigation commissioned by the Ministry”. [215].

Overall, the Court considered that

“the depth and nature of the flaws in the system, highlighted in convincing detail by the public consultation process, and accepted in important respects by the Ministry of Justice, are such that the Court can conclude that the impugned scheme exceeded even the broad margin of appreciation to be accorded to the State in respect of general measures pursuing social and economic interest” [217]

In all the circumstances, the Court held unanimously that the requirement that the applicant paid success fees to the claimant was disproportionate and that, as a result, there was a violation of Article 10 [219-220].

Discussion

The decision of the Court on the “breach of confidence” aspect of the case is, perhaps, not surprising. Despite the difference of view in the domestic courts (adding up from first instance to the House of Lords, there were 5 judges in favour of MGN and only 4 in favour of Ms Campbell) Court, in substance, deferred to the reasoning of the majority in the House of Lords.

The decision on recoverable success fees is, potentially, of much greater significance. Although the Government is already proposiing to remove such fees, this judgment finds that their imposition under the present CFA regime in media cases is a breach of Article 10. Although the decision has no immediate domestic impact – it is binding on the Government, not directly on the courts – it nevertheless means that, in practice, the current CFA regime is dead. If (contrary to its present view) the Government were to decide not to reform the CFA regime, that decision would be a breach of Article 10.

It should, however, be noted that the decision is not that all success fees are incompatible with Article 10 – only fees at the rate of 100%. The decision does not, of itself, suggest that all success fees are, inevitably, inconsistent with Convention rights. As the Court points out there is a balance to be struck between access to justice and other relevant rights – where this is struck is always “fact sensitive” and, strictly speaking, Strasbourg decisions are confined to the facts of the case before the Court. It is, therefore, possible that “scaled” fees at a lower level might pass the proportionality test. Overall, however, the decision is very powerful ammunition for those who are pressing the Jackson Reform proposals and seems to make it almost inevitable that recoverable CFAs will be abolished in libel and privacy cases.

This post originally appeared on the Inforrm Blog and is reproduced with permission and thanks.  The Inforrm blog as has a round up of the media coverage of the Strasbourg decision.