The Supreme Court Decision In Flood, Miller And Frost: A Claimant Lawyer's Perspective

There is an old saying that when a woman is forced to choose between two men, she opts for the third, and so it is with the Supreme Court's decision in Times Newspapers Ltd v Flood, Miller v Associated Newspapers Ltd, and Frost and others v MGN Ltd [2017] UKSC 33. The Court declined to decide between its decision in Campbell v MGN (No. 2) [2005] UKHL 61 (upholding CFAs in media cases) and MGN v UK 39401/04 [2011] ECHR 919 (holding that the recovery of additional liabilities was incompatible with the right to freedom of expression in Article 10) and moved the bastion for CFA clients and their lawyers to Article 1 of the First Protocol of the European Convention ("A1P1").

In his Inforrm piece of Wednesday 12 April, Keith Mathieson complained that CFAs, and their attendant higher costs, effectively allowed claimants to bulldoze the media into submission (although the facts of Flood, Miller and Frost and others tell a very different story). As any claimant lawyer knows, the media have to bulldozed into publishing an apology for false and defamatory allegations. The previous bulldozer, the threat of a high jury award, has effectively been replaced by CFAs. However, his complaint about lawyers riding a gravy train is to my mind unfounded. Winners pay for the losers and very few claimant lawyers (unlike their defendant counterparts) recover the difference between standard and indemnity basis costs and further, the recovery of standard basis costs has been further eroded due to the new test of proportionality in the CPR. Also, the Costs Office hardly ever awards a 100% success fee in any media case these days.

While the Supreme Court dismissed the three conjoined appeals, it did not rule that the recoverability of conditional fee agreement (CFA) success fees/uplifts and after the event (ATE) insurance premiums ("additional liabilities") in libel and privacy claims was compatible with the Article 10 Convention rights. This has led the RPC blog to characterise CFAs and ATE premiums as being "out of the running" in freedom of expression cases, and to predict that the continued recoverability of additional liabilities will be short lived. I suggest that this puts more of a spin on a bad result for the media than Emperor Hirohito telling the Japanese people that World War II had "not necessarily" turned out to their advantage.

There are two major caveats to the Supreme Court's decision, which suggest that it may be given a less radical interpretation.

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