The hugely anticipated Supreme Court hearing in Coventry v Lawrence will start on Monday with eight interveners lining up to have their say in addition to the parties, and 23 advocates in all.
The case will consider whether the recoverability of success fees and after-the-event insurance (ATE) under the Access to Justice Act 1999 infringed article 6 of the European Convention on Human Rights and/or article 1 of the First Protocol to the convention.
The case concerned a successful private claim for nuisance brought against the occupiers of a speedway track by two local residents. The two respondents were ordered to pay £10,350 each in damages and 60% of the appellants’ costs, which for the trial alone were £398,000, plus a success fee of £319,000 and ATE premium of about £350,000.
This meant the respondents were liable for over £640,000, even before the costs of the two appeals were considered. “These figures are very disturbing,” said the president of the Supreme Court Lord Neuberger, who unexpectedly took the point last July.
He will head an expanded panel of seven judges that includes the Master of the Rolls, Lord Dyson, given the importance of the issue. In his original ruling, Lord Neuberger observed: “A determination by a United Kingdom court that the provisions of the 1999 Act infringed article 6 could have very serious consequences for the government.
“Although the Strasbourg court would not be bound by the determination, it would, I suspect, be likely to agree or accept that conclusion, so that those litigants who had been ‘victims’ of those provisions could well have a claim for compensation against the government for infringement of their article 6 rights.”
The case is listed for Monday, Tuesday and half of Thursday, with the various interveners generally given half an hour to put their points across, although the Secretary of State for Justice will have two hours.
The appellants (Lawrence/Shields) are represented by Stephen Hockman QC and William Upton, with the first respondent, Coventry, instructed by Robert McCracken QC and Sebastian Kokelaar. Burford Capital, the ATE insurer, is represented by Timothy Dutton QC and Benjamin Williams.
The interveners and their advocates are:
- Secretary of State for Justice – Tom Weisselberg QC, Jason Pobjoy;
- Asbestos Victims Support Groups Forum UK – Robert Weir QC, Harry Steinberg, Achas Burin;
- The General Council of the Bar – Nicholas Bacon QC, Dr Mark Friston, Greg Cox;
- The Law Society – Kieron Beal QC;
- The Association of Business Recovery Professionals – Simon Davenport QC, Tom Poole, Daniel Lewis, Clara Johnson;
- The Department of Justice Northern Ireland – Attorney General for Northern Ireland;
- Media Lawyers Association – Gavin Millar QC, Chloe Strong; and
- Association of Costs Lawyers (ACL) – Roger Mallalieu.
The ACL was not on the original list of interveners, but its chair, Sue Nash, said: “ACL members have been at the forefront of the assessment of and advice and arguments in relation to recoverability and we want to give the Supreme Court the benefit of our practical experience.”
Though the ACL is not intervening on any particular side, she explained: “We believe the arguments in favour of incompatibility – including that it created an imbalance solely to the benefit of claimants – may be based on an incorrect or incomplete view of how the system worked before 1 April 2013 and are also concerned about the impact an adverse ruling by the court would have on the many pre-Jackson cases which are still being litigated.”
Paul Edwards, head of costs at well-known defendant firm Hill Dickinson, wrote on his firm’s website this week that if the court does make a finding of incompatibility, “then the consequences could be substantial with the 1999 Act referred back to Parliament to consider”. Given that the government has largely repealed the relevant provisions – except in asbestos and insolvency cases, hence two of the interveners – “it is difficult to see how [it] will be able to defend the old regime”, he said.
Mr Edwards added: “Should a finding of incompatibility be made, there is likely to be a whole host of further litigation. Is it really feasible to imagine a scenario where the government has to compensate those who paid out disproportionate additional liabilities during the last 14 years? What does disproportionate mean? What form would compensation take?”