CFA success fee ‘excessive’, Strasbourg rules in Daily Mail case

On By Littum

A success fee of almost £250,000 collected by lawyers in a high-profile claim against the Daily Mail breached the newspaper’s right to freedom of expression, the European Court of Human Rights ruled today. But in the same ruling, the Strasbourg court found that the newspaper’s obligation to cover after-the-event (ATE) insurance premiums incurred by privacy and defamation did not violate human rights.

IN Associated Newspapers Limited v United Kingdomthe publisher of the Mail titles – which has often criticized the proliferation of human rights cases – complained about its liability to pay success fees and/or ATE premiums in two lawsuits. One was brought by a Libyan businessman named by the Mail as a suspect in the 2017 Manchester Arena bombing; the second by a clinical psychologist named in connection with the ‘Operation Midland’ investigation based on fabricated allegations of sexual abuse.

In both cases, Associated argued that the cost burdens on the losing defendants were excessive and unreasonable. The risk of such obligations “was clearly capable of discouraging the participation of the press in debates on matters of legitimate concern”.

Delivered today, seven judges – including Britain’s Tim Eicke – noted two previous convictions in the MGN v United Kingdom which found that the requirement to pay success fees was disproportionate to the purpose of providing access to legal services. In the Mail case, there was no reason to depart from this conclusion. “There had therefore been a breach of Article 10 of the Convention in respect of the success fees payable by Associated Newspapers Limited.”

With regard to ATE premiums, the court found that the obligation was not disproportionate “especially as these premiums would have served the newspaper company’s interests if it had won the cases against it”.

It ordered the UK to pay Associated Newspapers €15,000 (£12,460) “in respect of costs and expenses”. The Mail carries a sober news agency account of his victory today.