Miller v Associated Newspapers Ltd

Recovery of success fees under the domestic costs scheme was compatible with a publisher’s freedom of expression under Article 10 ECHR because the first-instance court was bound by the ratio in Campbell v MGN Ltd (No 2). A later Strasbourg ruling expressing a conflicting view did not justify departure from that binding authority.

An ATE insurance premium had to be considered separately. Its statutory purpose included enabling claimants to vindicate reputation rights without facing unacceptable costs risks. The scheme was prescribed by law, pursued a legitimate social purpose, and contained sufficient controls to avoid disproportionate interference with Article 10.

The claimant succeeded in a defamation action against the defendant publisher concerning a Daily Mail article. He recovered damages and an order for costs, leaving the amount of success fees and an ATE insurance premium for assessment.

The costs judge referred to the Queen’s Bench Division the question whether awarding those additional liabilities would be incompatible with the defendant’s Article 10 right to freedom of expression. The defendant relied on MGN Ltd v United Kingdom. The claimant relied on the binding House of Lords decision in Campbell v MGN Ltd (No 2) and separately defended recovery of the ATE premium.

1. Success fees. The reasoning in Campbell v MGN Ltd (No 2) formed part of its ratio: the statutory scheme could validly impose success-fee liabilities substantially exceeding base costs, and was compatible with Article 10. That decision therefore bound the judge at first instance.

2. The Strasbourg Court’s later conclusion in MGN Ltd v United Kingdom that the scheme exceeded the United Kingdom’s margin of appreciation conflicted with part of the ratio in Campbell. The exceptional circumstances permitting departure from Supreme Court authority, identified in Kay v Lambeth London Borough Council and considered in The Queen on the application of RJM v Secretary of State for Work and Pensions, were absent. The success-fee scheme was accordingly held compatible with Article 10. The issue remained open to the Supreme Court.

3. ATE premium. Recovery of an ATE premium arose from a different statutory provision and had to be assessed independently. The court applied the approach in Rogers v Merthyr Tydfil County Borough Council, under which necessity could reflect the characteristics of the insurance market and the role of insurance in access to justice.

4. The ATE scheme pursued the legitimate purpose of enabling a person alleging defamation to vindicate reputation rights under Article 8 without unacceptable exposure to costs. It was prescribed by law and subject to controls over notification, the level of cover, the reasonableness of the premium and the defendants’ ability to limit or remove the costs risk. The burden on publishers was not disproportionate and was within the United Kingdom’s margin of appreciation.

5. The answer to the referred question was that awarding the claimant’s additional liabilities would not be incompatible with the defendant’s Article 10 rights.

• Court of Appeal: dismissed the defendant’s appeal from the substantive defamation judgment on 24 January 2014.
• Supreme Court: refused permission to appeal on 13 February 2014.
• High Court (Queen’s Bench Division): determined the referred costs question and held that recovery of the additional liabilities was compatible with Article 10.