27 October 2016Print This Post

Supreme Court to hear trio of cases on continuing success fee and ATE recoverability

Supreme Court: hearing next year

Supreme Court: hearing next year

The Supreme Court has consolidated three cases on whether the continuing recoverability of additional liabilities in publication and privacy cases are incompatible with publishers’ rights to freedom of expression.

It announced today that Mr Justice Mann’s ruling in Frost and others v MGN Limited has been leapfrogged to the highest court given that a previous ruling of the House of Lords is at issue.

A spokeswoman confirmed that it would be heard together with appeals against Mr Justice Milling’s ruling in Miller v Associated Newspapers Limited and the Court of Appeal’s decision in Times Newspaper Ltd v Flood. The hearing is likely to be early next year.

In Frost, a phone-hacking matter brought by eight claimants, the success fees claim exceeded £1.4m and the ATE premiums £632,000. Many more cases are in the pipeline and so the point has considerable significance.

Mann J said that, like Mr Justice Mitting in Miller, he was bound to follow the House of Lords costs ruling in Campbell v MGN in 2005, which determined that the existing conditional fee agreement (CFA) regime, which allowed for the recovery of uplifts, was not a breach of article 10 of the European Convention on Human Rights.

But in MGN v UK, the European Court of Human Rights (ECtHR) had taken a “contrary view”, he continued. The effect of that decision on the previous House of Lords decision “has yet to be tested”.

Mann J went on: “As a matter of the law of precedent, therefore, I am left with an apparently clear decision of the House of Lords, at least in relation to the uplift, and an apparently contrary decision of the ECtHR.

“When faced with that same situation, Mitting J in Miller considered that the laws of precedent required him to follow the English decision and I consider that I should do the same.”

Mann J said the position of ATE premiums was “technically different” to success fees as they had not been at issue in the Campbell case and so neither court made a ruling on their recovery.

“However, for my part, I find it very hard to see how ATE premiums fall to be treated differently in the circumstances.”

Mann J said he agreed with Mitting J that the recovery of ATE premiums did not contravene article 10 either.

By Neil Rose


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