Yesterday’s decision in MGN v United Kingdom (Case No. 39401/04) has become the most discussed media law case of the year so far. The combination is irresistible: a victory for the media over the hated “CFA” and the opportunity to publish more photographs of Naomi Campbell. Finally, some vindication for MGN nearly 10 years after the publication of its original article. Whatever else is said, the 6 year delay between application and judgment is unjustifiable (and would, if the Court of Human Rights had been a national court, have been a breach of Article 6).
The press was unanimous in its approval of the ruling. The “Daily Mirror” – its legal correspondent apparently on sabbatical – has an article by Tom Parry headlined “Mirror wins battle over no-win no-fee law firms at European Court of Human Rights“. This, understandably, has a touch of triumphalism, telling readers that judges “agreed unanimously the exorbitant success fee charged by London legal firm Schillings“. Well, actually, the ruling didn’t mention Schillings and didn’t use the word “exorbitant”, but we see what he means. A Trinity Mirror spokesman was quoted making the modest and sensible comment that: “This has been a long hard fight but we have been proved right.”
The Guardian reported that “European court deals blow to no win, no fee deals in Naomi Campbell case” stating that the judgment “provides boost for press freedom”. It quoted extensively from a statement by the Ministry of Justice
“The government is considering the court’s ruling and will respond with its observations in due course as invited by the court. We have already put plans out to consultation for much-needed reform of conditional fee arrangements, including success fees. This is intended to support wider government efforts to help businesses and public bodies fearful of costly litigation. We want to deter avoidable or unnecessary cases by ensuring claimants have a financial interest in controlling legal costs in their case, which will reduce overall costs. Under the current arrangements claimants generally have no interest in the costs incurred because, win or lose, they do not have to pay anything towards them. Our proposals are designed to correct this and prevent the situation in which, regardless of the merits of their case, defendants are forced to settle for fear of prohibitive costs.“
This was followed, unsurprisingly, by a quote from Mark Stephens, who was not shy about his own role in the triumph:
“I put a brief in on behalf of NGOs who are being threatened by these rapacious claimant libel lawyers. “Today the claimant libel lawyers’ train has hit the buffers – this is a very good day for justice in this country. Our legal costs are 140 times more expensive than in many countries in Europe. I hope this is a clarion call to judges in the high court to keep costs low.”
Mr Stephens is also quoted by Frances Gibb in the “Times”, this time saying “This is a great victory, because these massive fees were a big threat to small bodies faced with a libel or privacy action in the UK.” Lord Lester of Herne Hill, is also quoted, saying, “This judgment adds urgency to the need for the Government to deal with the scandal of success fees in libel cases.” This article also has a photograph of Ms Campbell.
The Mail Online has an article by Steve Doughty (with a picture of Ms Campbell), headed “Naomi Campbell case ruling could end huge ‘win’ fees for lawyers“. No Mark Stephens quote, but Gavin Millar QC stepped into the breach saying: ‘This is a ground-breaking ruling. It is a shame that the Mirror had to go to a European court to get justice. It brings shame on us.’ The “Mail”, happily, felt able to put aside its deep concerns about “human rights” for the day and, for once, to welcome the views of “European judges”.
The Lawyer reported the story under the headline “”CFAs breach human rights laws, ECHR rules in Naomi Campbell costs case” – and without a photo of Ms Campbell (its readers had to make do with a photograph of Keith Schilling).
None of the papers appears to have sought a comment from anyone who believes CFAs and success fees can promote access to justice – which, at the time of the last Government’s truncated consultation on the reduction of success fees included the Bar Council and the Law Society (not to mention the “Lawyers for Media Standards” who threatened judicial review of the consultation).
Last, but not least, the blogs. Jon Slattery had an early post, and cearta.ie had an early detailed discussion of this and another Strasbourg case. The astonishingly energetic UK Human Rights Blog had a swiftly posted and informative piece, followed today by an interesting and thoughtful piece by Rosalind English entitled “Costs Regime in Peril after Strasbourg Court Ruling” in which she concludes
The Campbell ruling will lend ballast to the Jackson recommendations that for all civil litigation – not just media cases – we should return to a system where success fees and ATE premiums are not recoverable (either at all or to any significant degree) from the losing party.