A success fee of nearly £250,000 charged by lawyers in a high profile claim against the Daily Mail violated the newspaper’s right to freedom of expression, the European Court of Human Rights ruled today. However in the same ruling the Strasbourg court found that the newspaper’s obligation to cover after the event (ATE) insurance premiums taken out by privacy and defamation claimants did not infringe human rights.
In Associated Newspapers Limited v the United Kingdom, the publisher of the Mail titles – which have frequently criticised the spread of human rights litigation – complained about its liability to pay success fees and/or ATE premiums in two legal actions. One was brought by a Libyan businessman named by the Mail as a suspect in the 2017 Manchester Arena bombing; the other by a clinical psychologist named in connection with the ‘Operation Midland’ investigation based on fabricated sexual abuse claims.
In both cases, Associated claimed that the costs burdens on unsuccessful defendants were excessive and unfair. The risk of such liabilities ‘was plainly capable of discouraging the participation of the press in debates over matters of legitimate concern’.
Ruling today, seven judges – including the UK’s Tim Eicke – noted two previous judgments in MGN v the United Kingdom which found that the requirement to pay success fees was disproportionate to the aims of enabling access to legal services. In the Mail case there was no reason to depart from that finding. ‘There had therefore been a violation of Article 10 of the convention as regards the success fees Associated Newspapers Limited had had to pay.’
On ATE premiums, the court found that the obligation was not disproportionate ‘especially since those premiums would have served in the newspaper company’s interests had it 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 its victory today.
