8 Representative Claimants & Ors v MGN Ltd

This is an application about costs which raises an important point about the applicability of normal conditional fee agreement (“CFA”) provisions to privacy litigation generally. Although the application has technically been made by the claimants, the real point which arises is one raised by the defendant, which is whether the defendant newspaper publisher (“MGN”) is right to say that the current CFA legislation, which permits the recovery of an uplift and ATE insurance premium is incompatible with Article 10 of the European Convention on Human Rights (“the Convention”). The circumstances in which the point arises and has been brought before me are as follows.

A large number of cases have been brought before the court by individuals alleging that they have been the victims of invasion of privacy by the defendant in the form of phone hacking, illicit information gathering and subsequent publication of the fruits of that exercise in the defendant’s newspapers. A number of cases have settled before trial. Eight cases were taken to trial and I delivered judgment in favour of the claimants on 21 May 2015 ([2015] EWHC 1482 (Ch)). As part of their judgments the claimants all got orders for costs in their favour. Each of the claimants was litigating with the benefit of a CFA under which their solicitors and counsel were entitled to an uplift in the event of success, and in relation to which each of the claimants (save for Mr Gascoigne) had taken out ATE insurance to cover any liability that they might have had to the defendant in respect of costs. The assessment of their costs has not got particularly far, but they are seeking recovery of the uplift and the ATE insurance premiums (“the additional liabilities”).

12 other cases which have settled have resulted in agreed orders for costs. Each of those claimants has similarly had the benefit of a CFA, which entitles them to an uplift and, again, pursuant to which each of them has taken out ATE insurance. In the course of their assessments they have claimed those additional liabilities.

In those assessment proceedings the defendant has formally taken the point that the additional liabilities are not recoverable as a matter of law because the legislation is incompatible with the Convention. In their points of dispute in one of those settled cases, which I can take as an example, they set out the point as follows:

“6.

Success fees.

The defendant’s primary contention, which it will if necessary seek to advance to the Supreme Court after its determination at first instance, is that the recovery of additional liabilities is unlawful, and would place the United Kingdom in breach of its obligations under the ECHR and the Court in breach of its obligations under the Human Rights Act 1998 to uphold the Convention.

The huge additional expense caused by additional liabilities unlawfully interferes with the defendant’s right to free expression under Article 10 of the ECHR and its right of effective access to the Court under article 6 of the ECHR. The ECtHR has already ruled that the regime is incompatible with the Convention: MGN Ltd v United Kingdom [2011]ECHR 66. The United Kingdom was and remains in breach of its treaty obligations by failing to prevent the recovery of additional liabilities from the defendant in respect of this and similar cases. The Court, as a public body, would be in breach of its own Convention obligations to allow the recovery of additional liabilities in this case.

The Court should therefore (i) declare any relevant primary legislation to be incompatible with the Convention; (ii) nullify all secondary legislation; and (iii) in any event refused to award any additional liabilities as a matter of discretion.”

The sums involved in these cases, or at least in the eight decided cases which went to trial, are considerable. Precise figures do not matter for the purposes of the matter before me but in the 12 settled cases the success fees are said to total a sum in excess of £600,000 and the insurance premiums total more than £200,000. In the eight cases that went to trial the success fees exceed £1.4m, and the ATE premiums exceed £632,000 in aggregate. Accordingly, a lot of money rides on the point taken by MGN just in terms of those cases. Furthermore, the point raises a point which is capable of affecting large numbers of other cases. There are a large number of phone hacking cases in the pipeline, and there are large numbers of other cases which have historically been settled in other cases beyond the 12 cases that I have referred to. It is, of course, of even greater significance when one considers that, if the point is correct, it must apply to all other privacy claims.

Thus the point has been made to arise in the settled cases, and it will inevitably arise in relation to the eight cases which I decided last year. The claimants have not waited to have the point decided in the costs proceedings (and in any event there would be some difficulty in a costs judge granting a declaration of incompatibility) and have sought to make the issue arise in the present proceedings (which are the 8 cases which I decided last summer) so that the point can have an airing before it is dealt with in the costs proceedings. The matter is slightly complicated by the fact that, as will appear, it can be said that the House of Lords has already decided the point in favour of the validity of the scheme, whereas the European Court of Human Rights (in the case referred to in the points of dispute) has come to the contrary view. In the circumstances it is questionable (to put it at its lowest) which decision this court should follow, and it is anticipated that a “leapfrog” appeal will be sought in relation to my decision so that the point can (if the Supreme Court thinks fit) deal with it at the same time as it is dealing with a similar point in relation to defamation proceedings in a case called Flood. That is the course that was adopted by Mitting J in Miller v Associated Newspapers Ltd [2016) EWHC 397 (QB).

The manner in which the claimants have sought to pre-empt the decision in the costs assessment is a slightly curious one in terms of the terminology used. They issued an application notice seeking two declarations:

“1.

A declaration that the Representative Claimants’ claims for misuse of private information do not engage Article 10 of the European Convention on Human Rights and as a result they are entitled to the payment of additional liabilities, alternatively

2.

A declaration that, on the facts of the Representative Claimants’ claims, the payment to them of additional liabilities is compatible with the Defendant’s rights under the Article 10 of the European Convention on Human Rights.”

Before me Mr Tomlinson QC, who appeared for the claimants, accepted that the first declaration was, so far as relevant at all, not the right one. What he meant to seek was that the question was more appropriately whether the additional liabilities interfered with the Article 10 rights of the defendant. Partway through the hearing he and Mr Millar QC agreed that the sort of issue which might otherwise have arisen under the second declaration could be put on one side, at least for the moment. They agreed that the real question for determination for the moment was whether the current CFA scheme, insofar as it allows the recovery of the uplift and the ATE premiums, was incompatible with Article 10 as proposed by MGN, and that was the question which should be focused on, with appropriate relief following from my decision. They also agreed that I could properly, and should, treat the assessments in the 12 settled cases as also being before me for the purposes of this application, so that my determination would cover the eight determined cases and the twelve settled cases.

One additional point arises in relation to the eight decided cases. It is said that by reason of the way in which one particular aspect of the eight decided cases was decided, the defendant is barred by estoppel or otherwise from taking the point that it seeks to take in relation to the CFA uplift (but not the ATE premium recovery). In the interests of brevity I shall call this “the estoppel point” even though that may not be an entirely accurate label in legal terms.

The legislative background to the point arises from a combination of various statutory provisions, statutory instruments and rules of court which govern the ability of lawyers to charge uplifts under a CFA, and the ability to recover those uplifts and ATE premiums from an unsuccessful party. In the light of my decision in relation to the main point arising on this application, I do not need to set out all those provisions verbatim. It suffices to summarise the effect of them as follows.

Originally the uplift under a CFA was recoverable from the paying party but ATE premiums were not. The latter were then made recoverable for a time, but as from April 2013 both elements of additional liability ceased to be recoverable from a paying party in most classes of litigation. However, the change of regime in relation to those premiums was, for the time being, not applied (inter alia) to defamation and privacy cases, so both the uplift and ATE premiums remain recoverable under CFAs entered into in such litigation. All the cases before me fall into that category. It is that state of affairs which MGN challenges.

The mainstay of Mr Millar’s argument is the decision in MGN v United Kingdom identified in the points of dispute in the assessment proceedings. That case involved a challenge to the consequences of an earlier English case, the leading authority on privacy Campbell v MGN Ltd [2004] 2AC 457, and the consequential costs appeal in Campbell v MGN Ltd (No 2) [2005] 1 WLR 3394. In the first of those cases Miss Campbell was held to have rights of privacy which were contravened, and in the second the House of Lords determined that the then CFA regime, which allowed for the recovery of uplifts, was not contrary to Article 10. I shall refer to the latter decision in more detail below. The effect of both decisions was challenged in the European Court of Human Rights in the MGN v United Kingdom case. That court rejected the challenge to the effect of the first decision, but upheld it in relation to the second. Having reviewed the history of the paying party’s obligations to pay the additional liabilities, it found:

“219.

In such circumstances, the Court considers that the requirement that the applicant pay success fees to the claimant was disproportionate having regard to the legitimate aims sought to be achieved and exceeded even the broad margin of appreciation accorded to the Government in such matters.

220.

Accordingly, the Court finds that there has been a violation of Art. 10 of the Convention.”

Article 10 protects freedom of expression:

“1.

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2.

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

Mr Millar’s submission is that the reasoning in that case, and its conclusion, applies to the attempt to claim the additional liabilities in the present case, including the ATE premiums (which were not the subject of the ECHR's decision). The consequence of this is said to be that the entire additional recoveries scheme, at least in relation to defamation and privacy cases, is incompatible with the Convention and I should so declare and refuse to enforce the liabilities. Mr Tomlinson’s response to this is a short one. He says that MGN v UK is not binding on this court, both because its status is only as a persuasive authority and (more importantly) what is binding is the previous House of Lords decision in Campbell which actually decides the point, at least in relation to the uplift.

Like Mitting J in the later case of Miller v Associated Newspapers Ltd I agree with Mr Tomlinson’s submission. In Campbell case the House of Lords was asked to rule that, in the circumstances of that particular case, a CFA uplift was not recoverable from the paying party because it infringed Article 10. The House of Lords did not decide the case on the basis of the actual facts of that particular case, and indeed indicated that that sort of approach was not correct in any event. It decided the point against the paying party on the footing that the overall CFA scheme, which allowed recovery of the uplift, was compatible with Article 10 because it was permitted under article 10(2). See, in particular, the speech of Lord Hoffmann at paragraph 28. It was not disputed by Mr Millar that, but for the decision in MGN v UK, that decision would be binding on the point, at least so far as the uplift is concerned.

In MGN v UK the fight was taken to the ECHR. That court reached a contrary view, summarised in the extract which I have cited above. The effect of that decision on the previous House of Lords decision has yet to be tested. A similar point in relation to another part of the Convention arose in Lawrence v Fen Tigers Ltd [2015] 1 WLR 3485. In that case the Supreme Court, by a majority, held that the recovery of uplift and ATE premiums in the case of a nuisance claim did not contravene Article 6. The majority considered MGN v UK briefly but concluded that it did not assist because that case involved freedom of speech, which was given a particular weight in the ECHR which did not necessarily apply to Article 6 (which was what was in issue in the Lawrence case). See the judgment of Lord Neuberger at paragraph 52. The minority would have applied the ECHR decision to strike down the claims in their case.

That case therefore does not assist Mr Millar, and in fairness he did not really say that it did. As a matter of the law of precedent, therefore, I am left with an apparently clear decision of the House of Lords, at least in relation to the uplift, and an apparently contrary decision of the ECHR.

When faced with that same situation, Mitting J in Miller considered that the laws of precedent required him to follow the English decision and I consider that I should do the same. Shortly after he commenced his submissions, Mr Millar indicated that he did not press me to do otherwise in this particular case, though for obvious reasons he does not accept that that is the correct result and will press his case at a higher level in saying that the decision of the House of Lords should be overturned.

The position of the ATE premiums is technically different. Those premiums were not an issue in the Campbell decision because there were none (or at least none in issue). Accordingly, neither the House of Lords nor the ECHR ruled on the recovery of those premiums. However, for my part, I find it very hard to see how ATE premiums fall to be treated differently in the circumstances. In his case Mitting J considered the position of those premiums and came to the conclusion that the recovery of those premiums did not contravene Article 10 either, because of the provisions of Article 10(2). I agree with him. Again, in the interests of economy of debate, Mr Millar did not seek, at this level, to argue strongly for another result. Again, he reserved his position in a higher court. (Footnote: ¹)

At that stage of the reasoning, therefore, and subject to a special point which arises in relation to the eight decided cases, it would be appropriate for me to grant a declaration that the recovery of the additional liabilities in the present cases does not contravene Article 10, and to refuse a declaration of incompatibility (or similar relief) in relation to the CFA scheme for the recovery of the additional liabilities.

However, Mr Tomlinson had another point which he ran and with which I shall deal. He submitted that Article 10 had nothing to do with the eight decided cases or the twelve settled cases because there was no question of an infringement of MGN’s Article 10 right. He submitted that a debate about Article 10 could arise where what a newspaper has done could be described as being within the realms of responsible journalism, but that sort of consideration did not apply where, as in the case of MGN in the phone hacking cases, MGN had done nothing of that kind and had committed criminal offences in order to obtain private information, some of which was then published. The mere fact that an order for additional liabilities was made against a newspaper cannot of itself mean that there was an interference with its Article 10 rights. He drew particular attention to paragraph 19 of the speech of Lord Hoffmann in Campbell and a reference thereto what might be termed “proper publishing”:

“19.

The challenge is based upon the special position of the media as defendants to actions for defamation and wrongful publication of personal information such as that bought by Ms Campbell against the “Daily Mirror”. There is no human right to drive a vehicle upon the road free of the cost of litigation from road accidents. But there is a human right to freedom of expression with which the imposition of an excessive costs burden may interfere. It is true that costs are awarded only against defendants who have been found to have wrongfully published matter which is defamatory or in breach of a claimant’s right to the confidentiality of personal information. So it may be said, and Ms Campbell’s counsel does say, that there is no harm in inhibiting such publications. But that, it seems to me, is not the point. It is the effect which the threat of heavy liability may have upon the conduct of a newspaper in deciding whether to publish information which ought to be published but which carries a risk of proceedings against it." (My underlining).

Mr Tomlinson relied particularly on the underlined words. He used them to support his submission that Article 10 could be used to protect “proper” publishing but not the sort of activity which MGN carried out in the phone hacking cases. No public interest justification was advanced in those cases, and there is no unjustifiable chilling effect on publication (an effect relied on by both Lord Hoffmann and Lord Carswell in Campbell) in relation to such activities, because there was no right to carry them out and no public interest in having them carried out. He acknowledged that in all the authorities placed before me the debate was about the general effect of the additional liabilities, and there was no determination of whether or not the individual rights of the publisher were infringed, but he said that that was assumed in every case. Accordingly, since there was, and could have been, no infringement of MGN’s Article 10 rights in this case, there was no question of its being able to resist the payment of the additional liabilities on Article 10 grounds.

It seems to me that Mr Tomlinson’s submission misses the point and is itself inconsistent with the authorities. This is not a case in which a party resists the enforcement of a particular right because of its apparent contravention of Article 10. Handyside v United Kingdom (1979-80) 1 EHRR 737 is an example of such a case. The present case is an example of a situation in which a body of legislation as a whole is said to contravene Article 10. That was the point which the House of Lords thought was the correct point in Campbell, rejecting some sort of individual application of the Article on the facts of the case. That was the point which was determined against the United Kingdom in MGN v United Kingdom. It was also the approach adopted in Animal Defenders International v United Kingdom (2013) 57 EHRR 21, and in particular that of Judge Bratza:

“0I-1. Secondly, as in the VgT and TV Vest cases, the interference with the applicant’s freedom of expression stemmed not from a decision or exercise of discretion of a court or executive authority, but from a statutory prohibition applicable to all forms of political advertising. Where the interference is the result of an individual decision, the Court’s approach has been to examine the necessity and proportionality of the restriction in the particular circumstances of the case. Where, however, as here, the interference springs directly from a statutory provision which prohibits or restricts the exercise of the Convention right, the Court’s approach has tended to be different. In such a case, the Court’s focus is not on the circumstances of the individual applicant, although he must be affected by the legislation in order to claim to be a victim of its application; it is, instead, primarily on the question whether the legislature itself acted within its margin of appreciation and satisfied the requirements of necessity and proportionality when imposing the prohibition or restriction in question.”

That is precisely the claim of MGN in the present matter. It does not matter for these purposes that MGN has (at least in the eight decided cases) been found guilty of conduct which, at least in some instances, can be characterised as criminal and which, generally, it might be difficult to regard as responsible journalism. All that means at the end of the day is that its rights of freedom of expression were trumped by the privacy rights of the claimants (on the facts of the cases). That means that MGN lost, and if it had not lost the point about additional liabilities would not arise anyway. When Lord Hoffmann referred to “information which ought to be published” he was not confining the debate about Article 10 and additional liabilities to such cases. He was suggesting how it was that the possible imposition of additional liabilities could dissuade a newspaper from publishing, thereby demonstrating, as a matter of mechanics, how it was that the question of additional liabilities came to be relevant to Article 10 in the first place.

Accordingly Mr Tomlinson’s attempt to deflect the debate away from the area which MGN fairly and squarely raises fails.

I next turn to a particular point which affects the eight decided cases. In the circumstances appearing from my judgment on those eight cases ([2016] EWHC 1482 (Ch) at paragraphs 160 to 166) the claimants at the last minute sought to argue that they were entitled to a 10% uplift in damages by virtue of Simmons v Castle[2013] 1 WLR 1239. For the reasons appearing in those paragraphs I rejected that claim. The principal reason was that such an addition was not appropriate where there was a preserved right to an uplift under a CFA. Reference should be made to those paragraphs for my full reasoning. Mr Tomlinson takes the point that, the defendant having had the benefit of resisting such a claim on the footing that an uplift under a CFA was available, it should now be debarred from taking the point that a CFA uplift is not available because the legislation is incompatible with Article 10. To decide otherwise would be (to adopt the metaphor used in my judgment) to deprive the claimants of both the penny and the bun.

Mr Millar accepted, as he had to, what it was that I decided on the point, but he submitted that nothing in my decision, nor in the submissions of MGN which led up to it, meant that I had decided that the additional liabilities were recoverable. There was no relevant form of estoppel operating, and there was no waiver by MGN of its Article 10 rights in any, or any appropriate, form. He pointed to the fact that my reasoning goes no further than saying that a CFA uplift was “potentially available" (see paragraph 165), and there is no inconsistency in his now arguing that the uplift cannot be available because of Article 10.

In my view the defendant is debarred from challenging the uplift (but not the ATE premiums) in relation to the 8 decided cases. The basis on which the claim for extra damages was resisted was quite clear. The point was dealt with in written submissions prepared by Mr Nicklin QC and his junior. The whole thrust of those submissions was that the availability to the claimants of a CFA agreement meant that the damages uplift should not be applied. The history of the Practice Note in Simmons v Castle, and its connection with a change in the CFA regime, was set out, and the judgment was quoted from, including the following:

“Similarly, it appears that the MoJ regarded the proposed 10% increase in damages as being a quid pro quo for depriving successful CFA claimants of the ability to recover success fees from the defendant.” (Paragraph 27)

The skeleton argument went on:

“13.

It is clear that the CA in Simmons v Castle intended to exclude CFA cases from the operation of the 10% increase; that is the reason for the express terms exclusion of claims governed by s.4(6) of LASPO, namely claims in which a CFA had been entered into before 1 April 2013. It is therefore inconceivable that, had the Court known in July 2012 that CFAs including success fees would continue to be available in publication cases post April 2013, publication cases in which there was a CFA would not also have been excluded from the 10% increase. As the CA put it:

‘The second step in ABI's argument is that it would therefore be wrong to permit CFA claimants who are entitled to recover the success fee to benefit from the 10% increase. On the face of it, at any rate, it is hard to challenge that contention: such claimants would have the penny and the bun.’

14.

In the present case, Cs are now pressing for the penny and the bun. The submission that they should have both is unprincipled. It is not hard to see why Cs’ counsel appeared reluctant to adopt it as part of Cs’ case, and made no submissions in support.”

The relevant section of the skeleton argument then concluded:

“16.

In summary, it would be wrong in principle to add 10% on to the damages in this case because:

… (b) Upon a proper consideration of Simmons v Castle , the 10% uplift cannot apply to a privacy case in which Cs are on CFAs and will seek to recover success fees (likely in themselves, based on budgets previously submitted, to run well into seven figures for these representative claims).”

It is therefore plain that the defendant was taking the point that the claimants had the benefit of CFAs, with the opportunity to claim recovery of additional liabilities under their costs orders, and that that factor prevented them having the additional 10% in damages. The existence of CFAs and the right of recovery in relation to them was actually being relied on by the defendant.

That was the basis of my judgment on the point. Of course, in any given case the defendant would have had the right to look at an individual CFA, consider what was claimed under it, and make appropriate points which might limit the liability to pay additional liabilities. However, the availability in principle of CFAs and the right to recover in respect of additional liabilities in relation to this class of cases (privacy cases) was not merely assumed, it was propounded by the defendant, and was part of the basis of my reasoning in denying the claimants their extra 10% damages. When I referred to recovery of the uplift as being “potentially available” in this class of cases, I was not building in the possibility of a root and branch challenge to the recovery of additional liabilities of the kind now mounted. I was merely referring to the fact that in any given case there may be reasons why an uplift is not recoverable because of the circumstances of the case. If Mr Millar’s attack on the recovery of additional liabilities in privacy cases is right, then the recovery of the uplift is not “potentially available” in these cases. That is not what I had in mind, and is not what my judgment catered for, is not what the defendant was suggesting, and is contrary to the assumption of the debate and the decision.

In the circumstances Mr Millar’s propositions in this application are flat contrary to the basis on which the point was dealt with at the trial of the eight decided cases, and contrary to the basis on which his client succeeded on the 10% damages point. To allow him to take and succeed on the point now, in relation to those cases, would be to allow him to approbate and reprobate in a manner which is contrary to principle. I was not treated to a lot of submissions as to precisely which form of estoppel would prevent Mr Millar taking his point, though it is plainly not issue estoppel in its strict sense. Mr Tomlinson relied on Express Newspapers plc v News (UK) Ltd [1990] 1 WLR 1320. That case involved a newspaper adopting opposing positions in two different pieces of litigation. Sir Nicolas Browne-Wilkinson VC said (at page 1329):

“There is a principle of law of general application that it is not possible to approbate and reprobate. That means you are not entitled to blow hot and cold in the attitude that you adopt. A man cannot adopt two inconsistent attitude towards another: he must elect between them and, having elected to adopt one stance, cannot thereafter be permitted to go back and adopt an inconsistent stance.

To apply that general doctrine to the present case is, I accept, a novel extension. But, in my judgment, the principal is one of general application and if, as I think, justice requires, there is no reason why it should not be applied in the present case.”

I agree that those words can be made to apply in the present case. The way in which it works is obvious. Having relied on the availability of the recovery of CFA additional liabilities in this class of litigation, the defendant now seeks to rely on the absence of that recovery in the present application. That is a classic approbation and reprobation. It is an inconsistency which should not be allowed. An alternative way of looking at it would be to view it as an abuse of process, which in my view it is. But whichever label one chooses to give it, the present stance is one which MGN should not be allowed to adopt.

Mr Millar invited me to view what was being relied on by Mr Tomlinson as being an instance of waiver of Convention rights. He accepted that such rights could be waived, but submitted that the courts were cautious in treating any given acts as a waiver. He submitted that any waiver required clarity as to what it was that was being waived. Beyond that he did not develop any submissions on the point. I am quite satisfied that, insofar as the concept of waiver is invoked, then MGN did enough to waive their rights. They were not so much waving their right of freedom of expression. They had already purported to exercise that right when they gathered information and published stories. What they were doing was acting inconsistently with their claim that the overall CFA additional liabilities recovery scheme was of itself inconsistent with their Article 10 rights. If clarity is needed, they did that clearly enough, albeit impliedly. That seems to me to be a different process from waiving rights, but whether or not that is right it is clear to me that MGN’s previous stance on the litigation now prevents them running the point that they wish to run to avoid having to pay any uplift for the eight decided cases.

All that applies to the uplift. It does not apply to the recovery of the ATE premiums. Those were not the subject of the debate at the previous hearing; it was the recovery of uplift that was important. Mr Tomlinson did not press on me that what happened at the previous hearing meant that the point could not be taken in relation to the premiums. Accordingly, MGN is not prevented by the estoppel point from taking a point as to those.

I therefore reached the following conclusions:

As foreshadowed at the beginning of this judgment, and as is apparent from the narrative of authority set out above, a similar point is to be considered by the Supreme Court in relation to defamation proceedings, and the same point has arisen in relation to Miller in respect of which a certificate has been given for a leapfrog appeal. Since my decision is clearly based on the binding nature of English authority notwithstanding an ECHR decision, it might be equally appropriate to grant a certificate for a leapfrog appeal in this case as well. I shall entertain an application for an appropriate certificate (which has already been canvassed without any discouragement from me) on or after the handing down of this judgment.