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European Court pulls rug from underneath funding for libel and privacy cases

18th January 2011

Today the European Court of Human Rights held in MGN v UK that lawyers acting for claimants in privacy and libel cases should no longer be allowed to recover a “success fee” from defendants. Such success fees have been an integral part of the no-win, no-fee agreements on which many claimant lawyers currently take these cases.

Media Legal Defence Initiative, the Open Society Justice Initiative, Index on Censorship, English PEN, Global Witness and Human Rights Watch jointly intervened in the case to express serious concern about the costs of defending libel and privacy claims in the UK. NGOs and small publishers - including bloggers-  are extremely vulnerable to the threat of  a costly libel or privacy actions in the UK. They simply do not have the means to defend themselves, and are easily forced to apologise and retract allegations even when they know them to be true. 

Gugulethu Moyo, Executive Director of the Media Legal Defence Initiative, said

“Conditional Fee Agreements have resulted in crippling costs for publishers and stop many of them from publishing controversial stories at all. They should now be a thing of the past, and judges must now be required to control proceedings so as to bring down costs. Today’s ruling should move the UK government to enact urgent reforms to English libel and privacy laws, not only to raise the standard of proof for claimants, but also to change the rules on costs. We welcome today’s judgment and urge the UK government to act immediately to implement it.”

Darian Pavli, Senior Attorney at the Open Society Justice Initiative, said:

"The Court confirmed that legal fees awarded in England and Wales for libel and privacy cases are disproportionate and dramatically out of line with the rest of Europe. With London having become the world's libel capital, this is a victory for free speech that goes well beyond Fleet Street."

Patrick Alley, Director, Global Witness, said:

“It’s perverse that one of the biggest risks we face in exposing the corrupt and sometimes bloody trade in natural resources, such as blood diamonds, is legal attack in the UK by powerful people who can afford to use the legal system, with its punitive costs, to launder their reputations and protect their vested interests, regardless of the merits of their case. This judgement sends a clear signal that publication of information in the public interest is important. I hope it’s a signal that is received by the UK government.”

John Kampfner, chief executive of Index on Censorship, said:

“This is a landmark judgment. Success fees have been one of the most significant chills on freedom of expression and today’s ruling removes one of the greatest barriers to free speech in the UK.”

Dinah PoKempner, general counsel of Human Rights Watch, said:

"This judgement strikes a blow for freedom of expression everywhere. We urge the UK government to rapidly reverse the judicial doctrines that have made England a global destination for libel tourism.

Contacts:

  • Peter Noorlander, Media Legal Defence Initiative: phone +44 791 7797 203, email peter.noorlander@mediadefence.org
  • Darian Pavli, Open Society Justice Initiative: phone +1 646 247 4504, email dpavli@sorosny.org
  • Patrick Alley, Global Witness: phone +44 20 7492 5880 / +44 7921 788897, email palley@globalwitness.org
  • John Kampfner, Index on Censorship: +44 020 7324 2522
  • Dinah PoKempner, Human Rights Watch: +1 917 535 3780

Notes to editors:

1.       The court held unanimously that there has been a violation of article 10 of the convention as regards the success fee payable by the applicant. The court noted that it had to consider the proportionality of requiring an unsuccessful defendant not only to pay the reasonable and proportionate costs of the claimant but also to contribute to the funding of other litigation and general access to justice. It considered that the applicant's core complaint concerned the recoverability against it, over and above the base costs, of success fees which had been agreed between Ms Campbell and her legal representatives as part of a CFA. The court examined in detail the public consultation process regarding the CFA/recoverable success fee regime that took place in the UK since 2005 and concluded that due to the depth and nature of the flaws in the system, the impugned scheme exceeded even the broad margin of appreciation accorded to the state.

2.       Our intervention can be found here: http://tinyurl.com/4omgltc  

3.       The Court devoted six paragraphs to our intervention, noting that high costs had the effect of holding publishers to ransom: defendants are forced to settle early despite good prospects of a successful defence.

4.       A study by Oxford University’s Programme on Comparative Media Law and Practice found that the average cost of defending libel cases in the UK was 140 times the European average: http://pcmlp.socleg.ox.ac.uk/sites/pcmlp.socleg.ox.ac.uk/files/defamationreport.pdf

5.       The full judgment can be found by <clicking here>.