Upholding Access To Justice ' Human Rights And CFAs (Coventry v United Kingdom)

• Published date: 28 November 2022
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution, Trials & Appeals & Compensation, Human Rights
• Law Firm: Gatehouse Chambers
• Author: Lauren Godfrey

Dispute Resolution analysis: The European Court of Human Rights (ECtHR) considered a claim by Mr Coventry challenging on human rights grounds the costs consequences attendant on losing in litigation in the United Kingdom. Before the ECtHR, Mr Coventry alleged the UK government had failed to secure his convention rights. In the domestic proceedings, Mr Coventry was one of several unsuccessful defendants in nuisance litigation that ended in a second appeal before the Supreme Court (the 'Nuisance Proceedings'). The costs consequences for Mr Coventry in the Nuisance Proceedings were described in the ECtHR judgment as 'eye-catching' approximating '600,000 (even on a 60% basis). The question for the ECtHR was whether these cost consequences interfered with Mr Coventry's convention rights: (1) to a fair determination of his civil rights (Article 6); and (2) his property rights (Article 1 of Protocol 1 to the Convention).

Coventry v United Kingdom [2022] EWHC 888 (QB)

What are the practical implications of this case?

Albeit this decision related to cost consequences under a conditional fee arrangement (CFA) governed by the CFA regime, applying prior to the Jackson reforms, where after the event (ATE) premiums and success uplift were recoverable unless unreasonably incurred, the case will be of interest to any practitioners wanting to chart the progress of human rights challenges to costs orders, and particularly recovery under a CFA, on access to justice grounds.

Further, the ECtHR rejected the UK government's submission on admissibility which attempted to narrow the concept of victim to a litigant whose Article 6 rights had been infringed by them being prevented from participating in proceedings rather than simply disadvantaged at its end.

The ECtHR referred to previous ECtHR case law where applications were upheld on the ground that Article 6 rights were infringed by practices and procedures effecting the 'equality of arms' in litigation. This may open the door for further applications based on such arguments framed under Article 6. It is particularly significant that the ECtHR disagreed with the Supreme Court's assessment of proportionality, finding that the government policy exceeded even the wide margin of appreciation afforded to secure convention rights.

Personal injury lawyers will recall that mesothelioma claims success fees and ATE premiums remain recoverable, after a successful judicial review by claimants: see R (Whitston (Asbestos Victims Support Groups...