EIT: Mediayhtiön velvoittaminen korvaamaan lehtijutussa loukatun henkilön oikeudenkäyntikuluihin sisältyvä succees fee loukkasi sananvapautta

Obligation on publisher of the Daily Mail to pay substantial “success fees” in defamation and breach of privacy cases was excessive

The case Associated Newspapers Limited v. the United Kingdom (application no. 37398/21) concerned the fact that Associated Newspapers Limited the publisher of the Daily Mail and the Mail on Sunday had been obliged to pay extensive costs incurred by claimants who had
successfully sued it in privacy and/or defamation proceedings following articles it had published in print or online in 2017 and 2019. Since one of the claimants had entered into a conditional fee arrangement (CFA) with his legal representative, and both had taken out “after-the- event” (ATE) insurance, Associated Newspapers Limited had been liable not only for their base costs, but also for fee uplifts including the “success fee” in the CFA and for their ATE insurance premiums.

In today’s Chamber judgment1 in the case, the European Court of Human Rights held, unanimously, that there had been:

• a violation of Article 10 (freedom of expression) of the European Convention on Human Rights as regards the “success fees” the newspaper company had had to pay, and
• no violation of Article 10 as regards the company’s obligation to cover the “after-the event” (ATE) insurance premiums taken out by the successful claimants.

The first set of proceedings had been brought by A.S., a Libyan businessman, after the MailOnline had named him as a suspect in the 2017 terrorist attack at the Manchester Arena. The second had been brought by E.H., the clinical psychologist named in the Mail on Sunday and MailOnline in the context of the police investigation into historic child sex abuse, known as “Operation Midland”.

In considering whether unsuccessful media defendants being liable for these additional costs was compatible with Article 10 of the Convention, the Court found that there was insufficient evidence to enable it to depart from its findings in its 2011 judgment MGN Limited v. the United Kingdom, where, in the context of the same Article, it had found the CFA regime to be disproportionate to its original aim  of ensuring the widest possible public access to legal services for civil litigation, including to people who would not otherwise be able to afford a lawyer. In that case, it had concluded that the CFA regime exceeded even the wide discretion accorded to the Government in such matters. In today’s case, the Court concluded that the obligation on Associated Newspapers Limited to pay substantial costs including success fees to A.S. had also been disproportionate. On the other hand, the Court did not find that the requirement for the newspaper company to cover A.S.’s and E.H.’s ATE insurance premiums had been disproportionate. As a Libyan refugee who had lost his employment, there was nothing to show that A.S. could have paid the applicant company’s costs if his claim had been unsuccessful. Similarly, E.H., a clinical psychologist, would probably not
have been in a position to pay the media company’s costs. In contrast, Associated Newspapers Limited was the publisher of a leading daily newspaper which could be expected to have insurance against such litigation.

Read more, press release

Judgement CASE OF ASSOCIATED NEWSPAPERS LIMITED v. THE UNITED KINGDOM