BNM v Mirror Group Newspapers Ltd

JurisdictionEngland & Wales
JudgeMaster Gordon-Saker
Judgment Date11 January 2016
Neutral Citation[2016] EWHC B1 (Costs)
Date11 January 2016
CourtSenior Court Costs Office
Docket NumberCase No: AGS/1501540

[2016] EWHC B1 (Costs)

IN THE HIGH COURT OF JUSTICE

SENIOR COURTS COSTS OFFICE

Royal Courts of Justice,

Strand, London, WC2A 2LL

Before:

Master Gordon-Saker

Case No: AGS/1501540

Between:
BNM
Claimant
and
Mirror Group Newspapers Limited
Defendant

Mr Simon Browne QC (instructed by Atkins Thomson) for the Claimant

Mr Gavin Millar QC and Mr Jamie Carpenter (instructed by RPC) for the Defendant

Hearing date: 23 rd November 2015

Master Gordon-Saker
1

This judgment is concerned only with the submission made by the Defendant and articulated in paragraphs 2 and 3 of Mr Millar's skeleton argument:

MGN contends that a costs order in favour of the receiving party ("C") in these proceedings cannot include provision requiring it to pay either a success fee provided for under the conditional fee agreements ("CFAs") with C's lawyers or costs in respect of the premium of an insurance policy against the risk of incurring a liability in these proceedings, being "after the event insurance" ("ATE").

If it were to make any such costs order, the court would be acting incompatibly with MGN's right to freedom of expression as a publisher under Article 10 of the European Convention on Human Rights ("ECHR"). The court would therefore be acting unlawfully within the meaning of s.6 of the Human Rights Act 1998 ("the HRA" …).

The background

2

The Claimant is a primary school teacher and has no public or media profile. Between 2008 and 2011 she had a relationship with a successful premiership footballer; which relationship was known only to a small circle of friends and family.

3

In March 2011 the Claimant lost her mobile phone, which contained private and personal information.

4

The Defendant publishes a number of newspapers, including the Sunday People. An assistant editor of the Sunday People was approached by a source who was in contact with another person who claimed to have the Claimant's phone and who revealed the relationship between the Claimant and the footballer.

5

On 23 rd March 2011 Ms Tracey Kandolah, a freelance journalist who undertook work for the Defendant, was sent by the Assistant Editor to the Claimant's home to enquire about the relationship between the Claimant and the footballer.

6

This led to a complaint to the Defendant by the Claimant's father and, subsequently on 3 rd May 2011, the return of the phone to the Claimant. The Claimant contended that all data had been deleted from the phone before it was returned.

7

In March 2013 the Claimant instructed Atkins Thomson, a firm of solicitors then based in Covent Garden, in relation to a proposed claim against the Defendant. Atkins Thomson had acted for other claimants with similar claims. On 18 th April 2013 the Claimant entered into a conditional fee agreement with Atkins Thomson which provided for a success fee of 100 per cent of their normal fees but a discounted success fee if the claim concluded before trial. On 7 th May 2013 Atkins Thomson entered into a conditional fee agreement with counsel, Mr David Sherborne, which provided for a success fee of 100 per cent but a discounted success fee if the claim concluded before exchange of witness statements. On 25 th July 2013 the Claimant purchased an after the event insurance policy from Temple Legal Protection Limited. That provided indemnity of up to £165,000 against liability for the Defendant's costs and the Claimant's own disbursements. On 30 th July 2013 Atkins Thomson entered into a conditional fee agreement with another counsel, Mr William Bennett, which similarly provided for a success fee of 100 per cent but a discounted success fee if the claim concluded before exchange of witness statements.

8

The Claimant commenced proceedings against the Defendant on 31 st July 2013, having obtained an anonymity order the day before. She claimed an injunction to restrain the Defendant from using or publishing confidential information taken from her phone, damages and an order for delivery up of any confidential information.

9

The Defendant made substantial admissions in the Defence and the claim was concluded by a consent order dated 14 th July 2014, under the terms of which the Defendant undertook not to use or disclose the confidential information, agreed to pay damages of £20,000 and agreed to pay the Claimant's costs of the action.

10

The costs claimed are in the sum of £241,817. That includes a success fee in respect of the solicitors' costs of 60 per cent, success fees in respect of the costs of both counsel of 75 per cent and an after the event insurance premium of £58,000 plus insurance premium tax of £3,480.

11

At the outset of the detailed assessment leading counsel made submissions on general point 5 in the Defendant's points of dispute, the Article 10 point. I decided to reserve judgment on that point so that the remainder of the detailed assessment could be completed within the 2 days for which it was listed. Subject to my decision on the Article 10 point, I allowed the success fees of the solicitors and both counsel at 33 per cent and the after the event insurance premium in the sum claimed.

12

General point 5 was expressed in the points of dispute in these terms (emphasis added):

The Defendant's primary contention, which it will 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 (with respect) the Court in breach of its own obligations under the Human Rights Act 1988 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 regime is incompatible with the Convention: MGN v United Kingdom [2011] ECHR 66. The United Kingdom was and remains in breach of its treaty obligations by failing to repeal the recovery of additional liabilities 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 relevant secondary legislation; and (iii) in any event refuse to award any additional liabilities as a matter of discretion.

The Defendant acknowledges that in non-Article 10 cases the lower courts have considered themselves bound by Campbell v MGN [2004] 2 AC 457 wherein challenges to the additional liabilities regime have been rejected. The Supreme Court is however bound to revisit that decision in the light of MGN v UK, and with respect the lower courts, with their own obligation to have regard to decisions of the ECtHR, are bound to assist the Defendant in using all available procedural devices to advance the issue for reconsideration by the Supreme Court at the earliest possible juncture.

13

Clearly I do not have the jurisdiction either to make a declaration of incompatibility or to nullify any secondary legislation. However I do have jurisdiction to refuse to allow the additional liabilities claimed.

The ECHR

14

Insofar as is relevant, Article 6 provides:

(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

15

Article 10 provides:

(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.

HRA

16

The relevant parts of ss 2 to 6 of the HRA are:

2. Interpretation of Convention rights

(1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any –

(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights, …

3. Interpretation of legislation

(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

6. Acts of public authorities

(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2) Subsection (1) does not apply to an act if –

(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

(3) In this section "public authority" includes –

(a) a court or tribunal …

The Courts and Legal Services Act 1990

17

s.58A(6), which was inserted by s.27 of the Access to Justice Act 1999, provided that:

A costs order made in any...

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1 firm's commentaries
  • The Supreme Court Decision In Flood, Miller And Frost: A Claimant Lawyer's Perspective
    • United Kingdom
    • Mondaq UK
    • 13 October 2017
    ...meantime, the next challenge to the recovery of additional liabilities will likely be in the appeal against the judgment in BNM v MGM [2016] EWHC B1 (Costs). In this case, the Senior Costs Judge held that in determining what costs were proportionate, he should include success fees and ATE p......

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