Posted on 30th Aug, 2011
- ECtHR cases are binding on European governments, not their judiciaries, but the potential domestic implications of this judgment are obvious.
- The original House of Lords judgment remains a binding domestic authority, but the House of Lords has repeatedly said that the domestic courts should generally adopt and follow the reasoning of the ECtHR.
- For the sentiments expressed in the judgment to be incorporated in the UK system, there would need to be legislation or a precedent set by the Supreme Court, which will in turn bind the lower courts.
- Any new legislation might be restricted to publication/privacy cases. Alternatively, it could extend to success fees as a whole.
- The judgment deals very specifically with publication cases and a very specific infringement of a defendant’s right to freedom of expression. For a similar argument to be possible in relation to other areas of litigation, paying parties would need to argue that their access to justice right/the right to a fair hearing had been interfered with. All of the circumstances of the litigation would need to be considered including the extent to which the success fee added to the overall cost of the litigation and the effect that it might have had on a paying party’s conduct (particularly the decision whether to defend a case or not).
- The recovery of insurance premiums/Section 30 Access to Justice Act 1999 premium equivalent is at risk to the same degree as the recovery of success fees.
- Before the general election, the days of recovering high success fees in defamation cases were already numbered. Since the election, the implementation of the Conditional Fee Agreement (Amendment) Order 2010 which would have fixed libel success fees at 10% has been put on hold. There is currently continuing consultation on the inter partes recoverability of additional liabilities and of course Lord Justice Jackson recommended that inter partes recovery should end. It is unlikely, therefore, that the position in relation to additional liabilities will be left totally unchanged.
- There are at least two decisions pending which may provide an early indication of how the courts are likely to react to the ECtHR judgment.
- Those representing both receiving and paying parties should review cases where inclusive offers on costs (including a success fee) are outstanding and decide whether those offers should be accepted/withdrawn.
- It may be sensible to take immediate steps to change the way in which risk assessments are carried out to take into account issues concerning access to justice.
