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Libel success fees breached journalists' human rights

18 January 2011

Libel success fees in the Naomi Campbell privacy case were a breach of the media’s right to free expression, the European Court of Human Rights ruled this afternoon.

Mirror Group Newspapers complained to the ECtHR that having to pay £500,000 in base costs and success fees to the supermodel for breaching her confidentiality, following two appeals to the House of Lords, was a violation of article 10.

However, the Strasbourg court did not overturn the law lords’ ruling that there had been a breach of confidentiality.

In a judgment heavily influenced by criticisms of conditional fees in Lord Justice Jackson’s report, the ECtHR said that the Ministry of Justice had recognised that recoverable success fees had resulted in an “excessive” costs burden on defendants and the balance had “swung too far in favour of claimants”.

The court said the MoJ had introduced new legislation to cut success fees to ten per cent of base costs in libel actions, but the measure had not been passed by parliament.

The present government had “not indicated whether this or any other legislation has since been proposed for adoption”.

The judges said the “depth and nature of the flaws in the system” accepted in important respects by the MoJ led it to conclude that current rules “exceeded even the broad margin of appreciation to be accorded to the state”.

They said Campbell was wealthy and “not in the category of persons considered excluded from access to justice for financial reasons.

“Her representatives accepted in the domestic proceedings that they did not do much CFA work, which limited their potential to act for impecunious claimants with access to justice problems.

“The applicant’s case was not without merit, in that the Court of Appeal and a minority of the House of Lords considered that the impugned articles did not violate Ms Campbell’s right to private life.”

The ECtHR said that even if it was not possible to “quantify with certainty the precise amounts paid by the applicant which can be attributed to success fees”, it was evident that the negotiated costs settlements reflected the obligation to pay substantial success fees.

“In such circumstances, the court considers that the requirement that the applicant pay success fees to the claimant was disproportionate having regard to the legitimate aims sought to be achieved and exceeded even the broad margin of appreciation accorded to the government in such matters.”

The ECtHR made no ruling on damages or costs and invited the applicants and the government to submit written observations should they fail to reach agreement.

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Procedures Local government