![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |
European Court of Human Rights |
||
You are here: BAILII >> Databases >> European Court of Human Rights >> MGN LIMITED v United Kingdom - 39401/04 [2008] ECHR 1255 (24 October 2008) URL: https://www.bailii.org/eu/cases/ECHR/2008/1255.html Cite as: [2008] ECHR 1255 |
[New search]
[Contents list]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
24 October 2008
FOURTH SECTION
Application no.
39401/04
by MGN LIMITED
against the United Kingdom
lodged on
18 October 2004
STATEMENT OF FACTS
THE FACTS
The applicant, MGN Ltd, is the publisher of the United Kingdom national daily newspaper The Daily Mirror (formerly known as the Mirror). It is represented before the Court by K. Bays of Davenport Lyons, a solicitor practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The impugned publication
On 1
February 2001 the “Mirror” newspaper carried as
its lead story an article headed “Naomi:
I am a drug addict”.
It concerned Ms
Naomi
Campbell
who is a famous fashion model. The
article was supported on one side by a slightly indistinct picture of
a relaxed Ms
Campbell
over the caption: “Therapy:
Naomi
outside
meeting”.
The article read as follows:
“Supermodel Naomi
Campbell
is attending Narcotics
Anonymous meetings in a courageous bid to beat her addiction to drink
and drugs.
The 30-year old has been a regular at counselling sessions for three months, often attending twice a day.
Dressed in jeans and baseball cap, she arrived at one of NA’s lunchtime meetings this week. Hours later at a different venue she made a low-key entrance to a women only gathering of recovered addicts.
Despite her £14million fortune Naomi
is treated as
just another addict trying to put her life back together. A source
close to her said last night: ‘She wants to clean up her life
for good. She went into modelling when she was very young and it is
easy to be led astray. Drink and drugs are unfortunately widely
available in the fashion world. But
Naomi
has realised she has a
problem and has bravely vowed to do something about it. Everyone
wishes her well.’
Her spokeswoman at Elite Models declined to comment.”
The
story continued inside, with a longer article spread across two
pages. The inside article was headed “Naomi’s
finally
trying to beat the demons that have been haunting her”. The
opening paragraphs read:
“She’s just another face in the crowd, but
the gleaming smile is unmistakeably Naomi
Campbell’s.
In our
picture, the catwalk queen emerges from a gruelling two hour
session at Narcotics Anonymous and gives a friend a loving hug.
This is one of the world’s most beautiful women facing up to her drink and drugs addiction - and clearly winning.
The London-born supermodel has been going to NA meetings for the past three months as she tries to change her wild lifestyle.
Such is her commitment to conquering her problem that she regularly goes twice a day to group counselling ...
To the rest of the group she is simply Naomi,
the
addict. Not the supermodel. Not the style icon.”
The
article made mention of Ms Campbell’s
efforts to rehabilitate
herself, and that one of her friends said she was still fragile but
“getting healthy”. The article gave a general description
of Narcotics Anonymous (“NA”) therapy, and referred to
some of Ms
Campbell’s
recent publicised activities. These
included an occasion when Ms
Campbell
was rushed to hospital and had
her stomach pumped. She had claimed it was an allergic reaction to
antibiotics and that she had never had a drug problem: but “those
closest to her knew the truth”.
In
the middle of the double page spread, between several innocuous
pictures of Ms Campbell,
was a dominating picture over the caption
“Hugs:
Naomi,
dressed in jeans and baseball hat, arrives for a
lunchtime group meeting this week”. The picture showed her in
the street on the doorstep of a building as the central figure in a
small group. She was being embraced by two people whose faces had
been pixelated. Standing on the pavement was a board advertising a
named café.
The photographs of her attending a meeting were taken by a free-lance photographer specifically employed by the newspaper to do the job. He took the photographs covertly, while concealed some distance away inside a parked car.
2. The further articles
On
the same day as the articles were published, Ms Campbell
commenced
proceedings against the applicant. The newspaper’s response was
to publish further articles, this time highly critical of Ms
Campbell.
On 5 February 2001 the newspaper published an article
headed, in large letters, “Pathetic”. Below was a
photograph of Ms
Campbell
over the caption “Help:
Naomi
leaves
Narcotics Anonymous meeting last week after receiving therapy in her
battle against illegal drugs”. This photograph was similar to
the street scene picture published on 1 February. The text of the
article was headed “After years of self-publicity and illegal
drug abuse,
Naomi
Campbell
whinges about privacy”. The article
mentioned that “the Mirror revealed last week how she is
attending daily meetings of Narcotics Anonymous”. Elsewhere in
the same edition an editorial article, with the heading “No
hiding
Naomi”,
concluded with the words: “If
Naomi
Campbell
wants to live like a nun, let her join a nunnery. If she
wants the excitement of a show business life, she must accept what
comes with it”.
Two
days later, on 7 February, the Mirror
returned to the attack. Under the heading “Fame on you, Ms
Campbell”,
an article referred to her plans “to launch a
campaign for better rights for celebrities or “artists”
as she calls them”. The article included the sentence: “As
a campaigner,
Naomi’s
about as effective as a chocolate
soldier”.
3. The main proceedings
In
the proceedings Ms Campbell
claimed damages for breach of confidence
and compensation under the Data Protection Act 1998. The article of 7
February formed the main basis of a claim for aggravated damages.
Morland J ([2002] EWHC 499 (QB)) upheld Ms
Campbell’s
claim.
The judge held that the information giving details that her treatment
was by regular attendance at NA meetings had been clearly
confidential. The details were obtained surreptitiously, assisted by
covert photography when Ms
Campbell
was engaged, deliberately “low
key and drably dressed”, in the private activity of therapy to
advance her recovery from drug addiction. Given the source, they must
have been imparted in circumstances importing an obligation of
confidence. Publication was to her detriment. It was, viewed
objectively, likely to affect adversely her attendance and
participation in therapy meetings. Although the disclosure of her
addiction and previous lying denial caused her “considerable”
distress, publication of the details about her sessions with NA
caused her “significant” distress. Article 8 was thus
engaged and striking a balance with Article 10 she was entitled to a
remedy. He made her a modest award of GBP 2,500 plus GBP 1,000
aggravated damages in respect of both claims.
The
applicant appealed. The Court of Appeal, comprising Lord Phillips of
Worth Matravers MR, Chadwick and Keene LJJ, unanimously allowed the
appeal and discharged the judge’s order ([2002] EWCA Civ 1373,
[2003] QB 633). The Court of Appeal were not prepared to accept that
information that Ms Campbell
was receiving therapy from NA was to be
equated with disclosure of clinical details of the treatment of a
medical condition. The Court of Appeal were also of the view that the
publication of this information was not, in its context, sufficiently
significant to shock the conscience and thus to amount to a breach of
the duty of confidence which was owed to her. They accepted the
respondents’ argument that disclosure of these details was
peripheral. They had regard too to the fact that some of the
additional information that was given in the article was inaccurate.
Ms
Campbell
then appealed to the House of Lords.
On 6
May 2004 the House of Lords allowed Ms Campbell’s
appeal by a
majority of 3-2 and restored the orders made by the trial judge
([2004]UKHRR 648).
Lord
Hope of Craighead in addressing the issue of confidentiality of the
disclosed information observed that effective protection of the right
to privacy required that the relevant test of whether disclosure
would have offended the reasonable man of ordinary susceptibilities
had to be applied with reference to the person affected by the
publicity. In the present case where the publication concerned a drug
addict requiring treatment and given the fact that disclosure of
details concerning that treatment together with publication of a
covertly taken photograph could endanger that treatment, the
disclosure was of private information. The case gave rise to a
competition between the rights of free speech and privacy which were
of equal value in a democratic society. As such, it was necessary for
a balancing exercise to be carried out which would ascertain whether
the means chosen to limit the Article 10 right were rational, fair
and not arbitrary and impaired the right as minimally as was
reasonable possible. Hence, a close examination of the factual
justification for the restriction on the freedom of expression was
needed. While the impugned publication had the potential to cause
harm to Ms Campbell
it was hard to see any compelling need for the
public to know the name of the organisation that she was attending
for therapy or other details set out in the publication. Moreover,
the photographs published:
“were not just pictures of a street scene where she happened to be... they were taken deliberately, in secret and with a view to their publication in conjunction with the article. The zoom lens was directed at the doorway of the place where the meeting had been taking place.. The argument that the publication of the photograph added credibility to the story has little weight.”
On
this basis, he concluded that any person in Ms Campbell’s
position would have seen the publication of these photographs as a
gross interference with her right to respect for her private life
which would outweigh the right to freedom of expression.
Baroness Hale of Richmond observed that the examination of an action for breach of confidence began from the “reasonable expectation of privacy” test inquiring whether the person publishing the information knew or ought to know that there was a reasonable expectation that the information in question would be kept confidential. This was a threshold test which brought the balancing exercise between the rights guaranteed by Articles 8 and 10 of the Convention into play. She considered that the application of the proportionality test, included in the structure of Articles 8 and 10 of the Convention, was much less straightforward when two Convention rights were in play. In accordance with the approach set out by the Court of Appeal in In re S [2003] 3 WLR 1425-1452, at paragraphs 54 60, such cases required looking at the comparative importance of the rights being claimed in the individual case; then at the justifications for interfering with or restricting each of those rights; and applying the proportionality test to each.
She
considered that essentially the interests at stake were those of a
prima donna celebrity against those of a celebrity-exploiting tabloid
newspaper. Nevertheless, the information revealed related to Ms
Campbell’s
health and, as such, had been both private and
confidential. As to the nature of the publication at issue, she found
that it had certain educational value: the Mirror was entitled to
reveal private information about Ms
Campbell
because she had
previously presented herself to the public as someone who was not
involved in drugs. Thus the publication of her involvement with drugs
together with the fact that she was seeking treatment was justified.
However, the publication of further information, especially
information that might jeopardise that treatment, was not necessary.
The trial judge had been best placed to judge whether the additional
information and the photographs had added significantly to both
distress and the potential harm to Ms
Campbell
and he had
accepted her evidence that they had done so.
Publication
of the photographs per se was not objectionable given that
unlike France and Quebec, in the United Kingdom the right to one’s
own image was not recognised. However, the impugned photographs
showed Ms Campbell
in the company of other members of the group
and the venue of the therapy meetings which would have been entirely
recognisable to anyone who knew the locality. There was no need to do
this: as the editor had accepted even without the photographs, his
story would have been a front page story and there was no shortage of
photographs of Ms
Campbell.
She concluded that she would allow the
appeal and restore the order of the judge.
Lord
Carswell agreed with the opinions of Lord Hope of Craighead and
Baroness Hale of Richmond that the appeal should be allowed. He noted
that it was not in dispute that the information was of private nature
and imparted in confidence to the respondents and that they were
justified in publishing the facts that Ms Campbell
was a drug addict
and that she was receiving treatment. The justification for the
publication of these facts in this case consisted in the fact that
the appellant was a well known figure who courted rather than shunned
publicity, who had consistently lied about her drug addiction and
compared herself favourable with others in the fashion business who
were regular users of drugs. By these actions she had forfeited the
protection to which she would have been entitled and made the
information about her addiction and treatment a matter of legitimate
public comment on which the Press had been entitled to put the record
straight.
He further agreed with Lord Hope that in order to justify limiting the Article 10 right to freedom of expression the restrictions imposed had to be rational, fair and not arbitrary, and they must impair the right no more than necessary. Having examined the weight to be attributed to different relevant factors, he concluded that the publication of the details about the appellant’s attendance at therapy by NA, highlighted by the photographs printed, constituted a considerable intrusion in to her private affairs which was capable of causing substantial distress and on her evidence did cause it to her. In her evidence she said that she had not gone back to the particular NA centre and that she had only attended few other NA meetings. It was thus clear, that the publication created a risk of causing a significant setback to her recovery. On this basis, the factors relied upon by the respondents did not suffice to justify such an intrusion into her privacy.
Lord Nicholls of Birkenhead and Lord Hoffman dissented.
Lord
Nicholls expressed the view that the proportionality assessment
required in cases where Articles 8 and 10 were engaged was distinct
from the initial question of whether the published information
engaged Article 8 at all. He observed that but for Ms Campbell’s
conduct the information disclosed would attract the protection of
Article 8. However, by repeatedly making assertions in public denying
her drug addition, Ms
Campbell
could no longer have a reasonable
expectation that this aspect of her life could remain private.
Therefore disclosure of information concerning her drug addition
together with the fact that she was receiving treatment had been
legitimate. As to the further disclosure of the fact that she was
attending NA meetings as a form of therapy, it was of such an
unremarkable and consequential nature that its disclosure had also
been legitimate. The same applied to information concerning how long
Ms
Campbell
was receiving such treatment given that the frequency and
nature of NA meetings was common knowledge. Hence, the intrusion into
Ms
Campbell’s
private life was comparatively minor. Lastly, as
to the publication of Ms
Campbell’s
pictures, Lord Nicholls
observed that she did not complain about the taking of the
photographs neither did she assert that the taking of the photographs
was itself an invasion of privacy. Instead she argued that the
information conveyed by the photographs was private information.
While in general photographs contain more information than a mere
textual description, the particular photographs added nothing of an
essentially private nature, they conveyed no private information
beyond that discussed in the article, and there was nothing
undignified or distrait about Ms
Campbell’s
appearance. He
therefore concluded that the appeal should have been dismissed.
Lord
Hoffmann noted that the House was unanimous on the statements of
general principles about the way in which the law should strike a
balance between the right to privacy and the right to freedom of
expression. It was clear that there was no question of automatic
priority nor a presumption in favour of one rather than the other.
The question to be addressed was the extent to which it was necessary
to qualify the one right in order to protect the underlying value
which is protected by the other. And the extent of the qualification
should be proportionate to the need. He noted, however, that often
there was no real conflict between the different rights at stake. But
where there is a real conflict, the question to be addressed was
whether there was sufficient public interest in that particular
publication to justify curtailment of the conflicting right. He
considered that there was a sufficient public interest in the
correction of the impression Ms Campbell
had previously given as to
whether she took drugs. Therefore, the Mirror was entitled to publish
the fact of her drug dependency and the fact that she was seeking
treatment. As to the publication of more of the circumstantial detail
and photographs, he observed that there was considerable ground of
legitimate disagreement in this respect. Given the relatively anodyne
nature of the additional details, which was to be distinguished from
the publication of salacious details or intimate photographs, the
Mirror was entitled to a degree of latitude in respect of the way it
chose to present its legitimate story. As to the publication of
pictures, he observed that the fact that the pictures were taken
without Ms
Campbell’s
consent did not amount to a wrongful
invasion of privacy. Moreover, the pictures did not reveal a
situation of humiliation or severe embarrassment and had not been
taken by intrusion into a private place. There was nothing demeaning
or embarrassing about the pictures showing Ms
Campbell
dressed and
smiling among a number of other people. They added nothing to what
was said in the text and carried the message that the Mirror’s
story was true. Accordingly the decision to publish the pictures was,
in Lord Hoffmann’s opinion, within the margin of editorial
judgment that the Mirror was entitled to. He would also dismiss the
appeal.
4. The proceedings concerning legal costs
Pursuant to the order of the House of Lords, Ms Cambell’s solicitors served on the applicant three bills of costs: GBP 377,070.07 for the trial, GBP 114, 755.40 for the appeal to the Court of Appeal and GBP 594,470 for the appeal to the House of Lords. Hence, the applicant was requested to pay legal costs, in addition to its own, in the sum of GBP 1,086,295.47 and an award of damages of GBP 3,500.
Ms
Campbell
retained solicitors and counsel pursuant to a conditional
fee agreement (“CFA”). At the trial and in the Court of
Appeal they had acted under an ordinary retainer. But the appeal to
the House of Lords was conducted pursuant to a CFA which provided
that if the appeal succeeded, solicitors and counsel should be
entitled to success fees of 95% and 100% of their respective base
costs respectively. The terms of the CFA were not disclosed to the
applicant until the conclusion of the litigation. The base costs of
her legal representative for the two day hearing in the House of
Lords were GBP 288,468. The success fees claimed by her lawyers
were GBP 279,981.35.
On 21 February 2005 the applicant sought a ruling of the House of Lords Appeal Committee that it should not be liable to pay any part of the success fee on the grounds that, in the circumstances, such a liability was so disproportionate as to infringe their right to freedom of expression under Article 10 of the Convention.
On 2
August 2005 Ms Campbell’s
solicitors accepted the applicant’s
offers to pay GBP 290,000 in respect of the costs of the trial in the
High Court and GBP 95,000 in respect of the costs of the hearing in
the Court of Appeal.
On 20 October 2006 the House of Lords dismissed the applicant’s petition ([2005] 4 All ER 793). Lord Hoffmann observed that Section 27 of the Access to Justice Act 1999 reversed the common law rule that it was unlawful for lawyers to charge fees which depended upon the outcome of the case and noted that the Conditional Fee Agreements Order 2000 (SI 2000/823) fixed the maximum success fee at 100%. He observed that the deliberate policy of the 1999 Act was to impose the cost of all CFA litigation, successful or unsuccessful, upon unsuccessful defendants as a class. Losing defendants were to be required to contribute to the funds which would enable lawyers to take on other cases which might not be successful but would provide access to justice for people who could not otherwise have afforded to sue. Therefore the policy shifted the burden of funding from the state to unsuccessful defendants which was a rational social and economic policy.
Lord
Hoffmann was concerned about the indirect effect of the threat of
heavy liability in terms of costs on the newspaper’s decisions
as to whether to publish information which ought to be published but
which carried a risk of legal proceedings against it. However, he
considered that the newspaper’s right could be restricted to
protect the rights of Ms Campbell
under Article 8 and the right of
litigants under Article 6 to access to a court. He considered that
the applicant’s argument confused two concepts of
proportionality: whereas the Civil Procedure Rules on costs were
concerned with whether expenditure on ligation was proportionate to
the amount at stake, the interests of the parties and other relevant
factors, Article 10 was concerned with whether the rule requiring
unsuccessful defendants to pay the reasonable and proportionate costs
of their adversary and contribute to the funding of other ligation
was a proportionate interference given that the aim was to provide
those other litigants with access to justice. He considered that it
had been open to the legislature to choose to fund access to justice
in that way. He also considered that it was desirable to have a
general rule in order to enable the scheme to work in a practical and
effective way and that concentration on the individual case and the
particularities of Ms
Campbell’s
circumstances would
undermine that scheme. Hence, the success fee should not be
disallowed simply on the ground that the applicant’s liability
would be inconsistent with its rights under Article 10.
Lord Hoffmann referred to certain problems arising in recent defamation cases with CFAs that led to substantial costs incurred by newspapers that were irrecoverable due to impecunious claimants who did not take out insurance. He further noted the blackmailing effect of such litigation and the fact that faced with a free-spending claimant’s solicitor and being at risk not only as to liability but also as to twice the claimant’s costs, the defendant was faced with an arms race which increased the costs of litigation. He noted that the Department of Constitutional Affairs, in a consultation paper of June 2004, discussed the problem but did not propose any legislative intervention in the hope that an agreement could be reached by the parties concerned. He concluded that “in the end... it may be that a legislative solution will be needed to comply with Article 10”.
Lord Hope of Craighead agreed with Lord Hoffmann’s proposed order, emphasised the question of proportionality and noted that the court should ensure that the right of access to court to vindicate the right to privacy under Article 8 should be properly balanced against the losing party’s Article 10 free speech right. Baroness Hale agreed that the petition ought to be dismissed but preferred to express no opinion on the delicate balance involved in this part of the proceedings. Lord Carswell agreed with the speeches of Lord Hoffmann and Lord Hope and noted that the regimen of CFAs and the imposition of these charges upon the losing party was legislative policy which the courts should accept. He observed that the House had only been asked to rule on the matter of principle whether success fees could be charged at all in cases brought against the media involving issues such as breach of confidence or defamation. He recognised that such fees constituted a “chill factor” but considered that it was not really in dispute whether the legislature could in principle adopt this method of funding access to justice. He concluded, with regret, that an examination of whether the parties could afford to finance the litigation themselves when entering into CFAs was unworkable. He noted that:
“While I am far from convinced about the wisdom or justice of the CFA system as it is presently constituted, it has to be accepted as legislative policy. It has not been shown to be incompatible with the Convention and the objections in principle advanced by MGN cannot be sustained.”
On 28 November 2005 the applicant was ordered to pay Ms Campbell’s
costs of the second petition of appeal. They were served with an
additional bill of costs of GBP 255,535.60 in respect of a one day
hearing at the House of Lords. The bill included a success fee of 95%
(GBP 85,095.78) in respect of the solicitors’ profit costs.
On 3 March 2006 the applicant agreed with Ms Campbell’s
solicitors to pay the sum of GBP 735,000, exclusive of interest at 8%
per annum, in respect of the costs claimed as to the trial, the
appeal to the Court of Appeal and the first petition to the House of
Lords including the success fee that was applicable in respect of the
two day hearing at the House of Lords.
At a hearing on 8 March 2006, before the Judicial Taxing Officers of
the House of Lords, the applicant sought to challenge the level of
the 95% success fee claimed by Ms Campbell
in respect of their profit
costs on the second petition.
On 3 April 2006 the Taxing Officers held that it was clear that the statutory regime did not permit the court to direct that a success fee in a CFA was recoverable at different rates for different period of the proceedings. They held that:
“In these proceedings, which have been hard fought throughout, and which were ultimately decided in the Appellant’s favour on a split decision of the House, there can be no doubt that the success fees claimed of 95% and 100% were appropriate. Given our finding that the second petition was not an appeal but was part and parcel of the original appeal, it follows that the same success fees must apply throughout. The effect of this is, of course, that the Respondents face a greatly increased bill of costs, but this is the issue in respect of which the second petition was lodged and in respect of which the Respondent’s lost”.
As to the issue of proportionality and taking an overall view of the claim for base costs they concluded that the costs claimed “did have the appearance of disproportionality”. While it was accepted that the rates set out in the bill were the rates normally charged to privately paying clients, both solicitors and counsel fees were reduced.
On 5 May 2006 the applicant presented a petition to the House of Lords in respect of the decision of the Taxing Officers of 3 April 2006. No further information was provided in this respect.
B. Relevant domestic law and practice
Section 12(4) of the Human Rights Act 1998 provides:
“The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to -
(a) the extent to which -
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the pubic interest for the material to be published;
(b) any relevant privacy code.”
The Press Complaints Commission Code of Practice, as it then stood, provided the following:
“3. Privacy
i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence. A publication will be expected to justify intrusions into any individual’s private life without consent.
ii) The use of long lens photography to take pictures of people in private places without their consent is unacceptable.
Note - Private places are public or private property where there is a reasonable expectation of privacy
The public interest
There may be exceptions to the clauses marked * where they can be demonstrated to be in the public interest.
1. The public interest includes:
i) Detecting or exposing crime or a serious misdemeanour.
ii) Protecting public health and safety.
iii) Preventing the public from being misled by some statement or action of an individual or organisation. . . .”
Conditional fees were introduced by section 58 of the Courts and Legal Services Act 1990. A Conditional Fee Agreement (CFA) is an agreement with a person providing advocacy or litigation services which provides for his fees and expenses, or any part of them, to be payable only in specified circumstances. A CFA provides for a success fee if it provides for the amount of any fees to which it applies to be increased, in specified circumstances, above the amount which would be payable if it were not payable only in specified circumstances.
Section 58 A of the Courts and Legal Services Act 1990 provides that a costs order made in any proceedings may, subject in the case of court proceedings to rules of court, include provision requiring payment of any fees payable under a conditional fee agreement which provides for a success fee.
Section 27 of the Access to Justice Act 1999 provides that a CFA which satisfies all the specified statutory conditions shall not be unenforceable by reason only of its being a CFA.
Subsections (6) and (7) of section 58A of the Courts and Legal Services Act 1990 provide as follows:
“(6) A costs order made in any proceedings may, subject in the case of court proceedings to rules of court, include provision requiring the payment of any fees payable under a conditional fee agreement which provides for a success fee.
(7) Rules of court may make provision with respect to the assessment of any costs which include fees payable under a conditional fee agreement (including one which provides for a success fee)."
Rule 44.4 paragraph 2 of the Civil Procedure Rules provides that where the amount of costs is to be assessed on the standard basis, the court will only allow costs which are proportionate to the matters in issue and that it will resolve any doubt which it may have as to whether costs were reasonably incurred or reasonable and proportionate in amount in favour of the paying party.
Part 11.5 of the Costs Practice Directions to Civil Procedure Rule 44 provides the following:
“In deciding whether the costs are reasonable and (on a standard basis assessment) proportionate, the court will consider the amount of any additional liability separately from the base costs.”
Part 11.8 of the Practice Directions deals with the assessment of the success fee:
“(1) In deciding whether a percentage increase is reasonable relevant factors to be taken into account may include:
(a) the risk that the circumstances in which the costs, fees and expenses would be payable might or might not occur;
(b) the legal representative’s liability for any disbursements;
(c) what other methods of financing the costs were available to the receiving party.
(2) The court has the power, when considering whether a percentage increase is reasonable, to allow different percentages for different items of costs or for different periods during which the costs were incurred.”
Part 11.9 of the Practice Directions provides as follows:
“A percentage increase will not be reduced simply on the ground that, when added to the base costs which are reasonable and (where relevant) proportionate, the total appears disproportionate.”
Section 27 of the Practice Directions applicable to judicial taxations in the House of Lords (March 2007) provides the following:
“CONDITIONAL FEE AGREEMENTS
27.1 Notification should be given to the opposing parties and to the Judicial Office as soon as practicable after a conditional fee agreement has been entered into. The Taxing Officers decide questions of percentage uplift in accordance with the principles set out in Designers’ Guild Limited v. Russell Williams (Textiles) Limited (Trading as Washington D.C.) [2003] 2 Costs LR 204.”
COMPLAINTS
2. By its further submissions of 18 April 2006 the applicant also
complained under Article 10 of the Convention that the requirement to
pay success fees to Ms Campbell
resulting in its having to pay Ms
Campbell
excessive costs of double the reasonable and proportionate
costs incurred by her in protecting her right to respect for her
private life did not, in the circumstances, pursue a legitimate aim
and the success fees were neither necessary nor proportionate.
QUESTION TO THE PARTIES
Has there been a violation of the applicant’s right to freedom of expression, contrary to Article 10 of the Convention?
In particular:
(a)
did the award of damages for breach of confidentiality due to the
publication of details concerning Ms Campbell’s treatment for
drug addiction, together with the impugned photographs, constitute a
disproportionate interference with the applicant’s right to
freedom of expression?
(b) did the award of costs, including the success fees, constitute a disproportionate interference with the applicant’s right to freedom of expression?