8 Representative Claimants & Ors v MGN Ltd

A domestic court must follow binding English authority on the compatibility with Article 10 of a statutory scheme allowing recovery of CFA success fees and ATE premiums, even where the European Court of Human Rights has reached a contrary conclusion. The scheme is assessed as a whole, rather than by asking whether the defendant’s conduct in the individual case deserved protection. A party which has relied on the availability of CFA recoveries to obtain a litigation advantage may be prevented, by approbation and reprobation or abuse of process, from later asserting that those recoveries are unlawful. That bar applied to success fees in the decided claims, but not to ATE premiums, which had not formed part of the earlier debate.

The claimants were victims of privacy violations arising from phone hacking and related conduct by MGN. Eight claims had proceeded to judgment, while twelve others had settled. The claimants sought to establish, before costs assessments, that the recovery of CFA success fees and ATE insurance premiums was compatible with Article 10 of the Convention. MGN contended that the statutory regime was incompatible, relying on MGN Ltd v United Kingdom [2011] ECHR 66, and argued that the point remained open notwithstanding Campbell v MGN Ltd (No 2) [2005] 1 WLR 3394. The court also had to decide whether MGN was barred from challenging recovery of the success fees in the eight decided claims because of its earlier position on a damages uplift.

1. The court held that, on the basis of binding English authority, the legislative regime permitting recovery of CFA success fees and ATE premiums in privacy cases was not incompatible with Article 10. The House of Lords decision in Campbell v MGN Ltd (No 2) [2005] 1 WLR 3394, understood with Campbell v MGN Ltd [2004] 2 AC 457, treated the compatibility question as concerning the overall scheme under Article 10(2), not the particular facts of an individual publication.

2. The contrary conclusion of the European Court of Human Rights in MGN Ltd v United Kingdom [2011] ECHR 66 did not displace the binding domestic authority. The court followed the approach taken by Mitting J in Miller v Associated Newspapers Ltd [2016] EWHC 397 (QB). The court also agreed that ATE premiums were not materially different for Article 10 purposes, although that issue had not been decided in Campbell.

3. The argument that Article 10 was irrelevant because MGN’s conduct involved criminal or irresponsible journalism was rejected. The alleged interference arose from the statutory scheme itself. The relevant inquiry was therefore the scheme’s general effect, consistently with the approach described in Animal Defenders International v United Kingdom (2013) 57 EHRR 21.

4. In the eight decided claims, MGN was barred from challenging recovery of success fees. It had relied on the availability in principle of CFA recoveries to resist the claimants’ separate application for a 10% damages uplift. Applying the principle against approbating and reprobating, recognised in Express Newspapers plc v News (UK) Ltd [1990] 1 WLR 1320, or alternatively abuse of process, MGN could not adopt the inconsistent position later. The bar did not extend to ATE premiums.

5. The court determined that the regime was compatible with Article 10 and refused MGN’s proposed incompatibility challenge. It stated that an application for a leapfrog certificate could be entertained after hand-down.

First-instance decision. The judgment records that a leapfrog appeal might be sought and that the court would entertain an application for a certificate after hand-down.