Miller (Andrew James) v Associated Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mitting |
| Judgment Date | 05 February 2016 |
| Neutral Citation | [2016] EWHC 397 (QB) |
| Docket Number | Case No: HQ09X04347 |
| Court | Queen's Bench Division |
| Date | 05 February 2016 |
[2016] EWHC 397 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Mitting
Case No: HQ09X04347
REPRESENTATION not provided
Friday, 5 February 2016
(11.05 am)
On 2 October 2008, an article was published on the front page and on page 4 of the Daily Mail. The headline was, in capital letters, "MET BOSS IN NEW "CASH FOR A FRIEND" STORM". The article stated, correctly, that the Metropolitan Police Commissioner, Sir Ian Blair, was a long standing friend and skiing partner of Andrew Miller, ("the claimant"). He was a founding shareholder and managing director of a management consulting company, Impact Plus Limited ("Impact"). The article also stated, again correctly, that Impact had received more than £3 million for work done for the police. The thrust of the article was that Sir Ian had "used public money to pay a close friend a five figure sum, more than £15,000, to sharpen his image" a so-called "vanity contract" and that no other company had been invited to bid for the contract. An enquiry was established, chaired by Sir Ronald Flanagan, which exonerated Sir Ian and the claimant of wrongdoing but its findings were not published. The claimant considered that he had been libelled by the publishers of the article, Associated Newspapers Limited, ("the defendants"), after fruitless informal efforts to secure a published apology, damages and payment of his legal costs, the claimant issued defamation proceedings on 29 September 2009 against the defendants. Before doing so, on 4 September 2009, he entered into two agreements: (1) with his solicitors, to pay them a 100 per cent uplift on their profit costs and on counsel's fees in the event of success after service of the defendants' defence and, (2), with Temple Litigation Advantage, to pay a premium rising to £65,000, plus 6 per cent insurance premium tax within 45 days of the start of any trial to indemnify him against any reasonable costs which he was ordered to pay the defendants, up to £100,000. I am told this policy was issued by the claimant's solicitors under an authority given to them by the insurers. On the same day, the claimant's solicitors entered into a third agreement with counsel then instructed, under which they agreed to pay an uplift of 100 per cent on counsel's normal fees in the event of success after service of the defendants' defence. Smaller percentage uplifts and a smaller premium were payable at earlier stages in the litigation under the three agreements. Agreements (1) and (3) were for success fees and (2), for after the event insurance, ("ATE insurance").
On 26 November 2009, the claimant's solicitors gave notice of the agreements to the defendants and also served the Claim Form and Particulars of Claim. Pre-trial proceedings were protracted. On 31 March 2010, Eady J ruled that the article was defamatory of the claimant but did not have the defamatory meaning for which he then contended: that he had entered into; a corrupt contract with the Metropolitan Police Service. He gave permission to the claimant to amend the Particulars of Claim. Amended Particulars of Claim were eventually served on 29 June 2010. The defence was served on 12 July 2010. Therefore, from that point on under the agreements entered into by the solicitors and counsel originally instructed, their fees were to be uplifted by 100 per cent in the event of success.
On 28 July 2011, Orders were made for extensive disclosure by the Metropolitan Police Service, for trial by judge alone and for prior determination of the defamatory meaning of the article. On 11 November 2011, Tugendhat J determined the defamatory meaning of the article: there were reasonable grounds to suspect that the claimant was a willing beneficiary of improper conduct and cronyism because of his friendship with Sir Ian. The defendants' defence was that the words were substantially true. The defendants did not additionally rely on the defence of responsible journalism. On 9 March 2012, the claimant's solicitors entered into a further agreement with new counsel, who was to conduct the claimant's case at trial for an uplift of 82 percent of his normal fees in the event of success. This percentage was based on his assessment of the prospects of success as a little better than even, or 55 per cent.
On 15 May 2012, after an exchange of correspondence, the defendants agreed to limit their costs to £360,000 in the event that they succeeded. The claimant entered into a further agreement with the same insurers, on a date that I do not know, to increase cover to £360,000. The total premium payable was £234,000, plus 6 per cent insurance premium tax. That sum became payable from a date 45 days before the start of the trial. The trial took place before Sharp J between 21 and 25 May 2012. She handed down a reserved Judgment on 21 December 2012. She found that the evidence did not support any suspicion of wrongdoing or that the contracts were improperly awarded to Impact and did establish that Impact had done a good and valuable job for which it was appropriately paid. She awarded damages of £65,000, including aggravated damages to the claimant. Judgment was formally entered on 15 March 2013 in that sum and for costs to be paid by the defendants on the standard basis until 11 January 2012 and on the indemnity basis, thereafter, because the claimant had beaten the terms of his Part 36 offer. An appeal to the Court of Appeal was dismissed with costs on the standard basis in a Judgment handed down on 24 January 201Success fees for solicitors and counsel were agreed in respect of the appeal, as well as at first instance; 100 per cent for the solicitors and 80 per cent for counsel.
A petition for permission to appeal to the Supreme Court was refused on 13 February 2014. The substantive litigation then concluded. The claimant applied to a costs judge for the assessment of his costs, including success fees and the ATE premium. Base costs were claimed in a sum over £800,000 but were, eventually, compromised at £633,006.08. That left outstanding the claimant's claims for success fees and the ATE premium. The defendants dispute liability to pay any part of those claims.
On 9 November, 2015, Master Gordon Saker referred the following question to a judge of the Queen's Bench Division:
"Whether the award of additional liabilities to the Claimant would be incompatible with the Defendants' right of expression as a publisher under Article 10 of the European Convention of Human Rights"
I heard succinct and helpful submissions from Mr Miller QC, for the defendants, and Mr McCormick QC for the claimant yesterday, 4 February 2016. This is my judgment on those submissions. Mr Miller submits, on the basis of a Judgment of the Strasbourg Court in MGN Limited v United Kingdom [2011] 53 EHRR 5 that the award of both success fess and the ATE premium would infringe the defendants' rights under Article 10, ECHR, and should be disallowed. Mr McCormick makes three submissions. (1), on a proper understanding of the scheme under which both may be recovered, the defendants' Article 10 rights are not infringed. (2), I, as a first instance judge, am, in any event, bound by the decision of the House of Lords in Campbell v MGN Limited (No.2) [2005] UKHL 61 to determine that the award of success fees to the claimant should, in principle, be made. (3), I should determine that, in any event, the ATE premium should be awarded.
It is common ground that the scheme which I have to consider is that which was considered by the House of Lords and the Strasbourg Court. It was contained in primary legislation, the Civil Procedure Rules, and a practice direction made under s.5.(1) of the Civil Procedure Act 199The primary legislation is contained in s.58A(6) of the Courts and Legal Services Act 1990 and s.29 of the Access to Justice Act 1999. Section 58A(6) provides:
"A costs order made in any proceedings may, subject in the case of court proceedings to rules of court, including provision requiring the payment of any fees payable under a conditional fee agreement which provides for a success fee."
Section 29 provides:
"Where in any proceedings a costs order is made in favour of any party who has taken out an insurance policy against the risk of incurring a liability in these proceedings, the costs payable to him may, subject in the case of court proceedings to rules of court, include costs in respect of the premium of the policy."
A general discretion to order one party to the pay the costs of another is conferred by CPR 44.3(1). The factors to be taken into account in deciding the amount of costs are set out in CPR 44.5. The basic principle is that the costs must be proportionate and reasonable. Additional provision is made for "additional liabilities" under "funding arrangements" as defined by CPR 43.2, to include an additional percentage payable as a success fee and the amount of an ATE premium. This additional provision is made in CPR 44.3A and B. Success fees and ATE premiums may not be assessed until the conclusion of proceedings, CPR 44.3A(1), and are subject to the limits on recovery specified in CPR 44.3A and B. For present purposes, those in 44.3B(1)(c) and (e) and parts of the practice direction are relevant. CPR 44.3B(1) provides:
"Unless the court orders otherwise, a party may not recover as an additional liability —…(c) any additional liability of any period during which that party failed to provide information about a funding arrangement in...
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