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11.05.2017

UK: Supreme Court dismisses newspapers' Article 10 CFA appeals

by Tobias Raab

The UK Supreme Court has dismissed three appeals based on Article 10 CFA on 11 April 2017 (Times Newspapers Limited v Flood (Case No. A2/2014/0120), Miller v Associated Newspapers Limited (Case No. HQ09X04347) and Frost and others v MGN Limited ([2016] EWHC 855).

Each of the three appellants sought an order for costs made by a High Court decision against a newspaper publisher following trial. Some involved allegations that the newspaper had libelled the claimant, some involved that the newspaper had unlawfully gathered private information about the claimants by hacking into their phone.

Each newspaper had been ordered to pay the costs of the claimant referring to the costs regime introduced by the Access to Justice Act 1999 and reflected in the Civil Procedure Rules then in force. In the sequel, the publishers of the newspapers appealed to the Supreme Court. The publishers relied on the decision of the European Court of Human Rights in MGN Ltd v United Kingdom, in which the Court decided that the order to reimburse the success fee and ATE premium infringed MGN’s right to freedom of expression under Article 10 of the European Convention on Human Rights.

The publishers stated that their rights under Article 10 had also been infringed by the costs orders in the present appeals. The Supreme Court, however, unanimously dismissed the appeals of the three newspaper publishers.

The Court stated that it would be inappropriate to see a general rule of domestic law that it would normally infringe a newspaper publisher’s rights under Article 10 to require it to reimburse the claimant’s success fee and ATE premium in a defamation or privacy case, as the UK Government was not a party to these appeals. On the other hand, the Court made clear that if there was such a general rule, it would infringe the claimant’s rights under Article 1 of the First Protocol to the Convention to deny the claimant’s ability to recover the success fee and ATE premium which they had incurred.

Also, as the regime aimed to enable access to the courts, the claimant’s rights under Article 6 and 8 might otherwise have been infringed, as the proceeding’s goal was to restore personal dignity. The Court also stated that the citizen’s right to assume that the law will not change retroactively would outweigh the publisher’s freedom of expression, as it was less centrally engaged in this case.

The Court therefore decided that it was the just and appropriate order to dismiss the appeals, and that to allow them would be a more serious infringement of the claimant’s rights than the infringement the publishers will suffer if the appeals are dismissed.

It must be stated though that the regime in dispute has now largely been replaced for claims commenced after 1 April 2013 by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, after receiving lots of criticism.                                   

Tobias Raab is an Attorney at Law at the German law firm Stopp Pick & Kallenborn and publishes abstracts for the Institute of European Media Law (EMR), Saarbrücken/Brussels.


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The Supreme Court’s decision can be accessed here





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