A collective sigh of relief follows Coventry ruling

The government, and many lawyers besides, will have breathed a sigh of relief this morning upon the Supreme Court's handing down of its judgment in Coventry v Lawrence [2015] UKSC 50.

By a 5-2 majority, the highest court has decided that the costs regime set down in the Access to Justice Act 1999, whereby successful parties could claim conditional fee agreement (CFA) success fees and after the event (ATE) insurance premiums from unsuccessful parties, did not infringe the article 6 right to a fair trial under the European Convention on Human Rights (ECHR).

In its previous decision on the underlying claim (a nuisance claim brought by homeowners against motorsport stadium operators), the Supreme Court deferred the question of whether or not the costs order which was made against the losing party infringed his article 6 rights because the court felt it should hear arguments from the attorney general and the justice secretary.

As Lord Neuberger pointed out in the judgment, 'a determination by a UK court that the provisions of the 1999 Act infringed article 6 could have very serious consequences for the government… Those litigants who had been "victims" of those provisions could well have a claim for compensation against the government for infringement of their article 6 rights.'

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) has, of course, since repealed the effect of the 1999 Act regime for many types of litigation. However, the judgment is still highly relevant to those cases (such as Coventry) where the CFA/ATE insurance was entered into before 1 April 2013, as well as for the many lawyers acting in insolvency, publication/privacy, and diffuse mesothelioma proceedings, in relation to which the LASPO changes do not yet apply.

The Supreme Court recognised that 'there is no perfect solution to the problem of how best to enhance access to justice following the withdrawal of legal aid for most civil cases' but concluded that the 1999 Act regime was, taken as a whole, a rational and coherent scheme which produced a proportionate outcome, albeit that in some individual cases it could 'operate harshly' (as the European Court of Human Rights had concluded in MGN v UK [2011] ECHR 66).

In relation to the excepted cases, it has long seemed to be a matter of when, rather than if, the LASPO changes will come into force. A form of qualified one-way costs shifting is being considered in relation to publication/privacy claims and the insolvency exemption has only been extended 'for the time being'.

However, questions remain
as to whether the new regime enhances or curtails access to justice even further. Insolvency practitioners and privacy lawyers - watch this space. SJ

Melanie Hart is a senior associate at Harbottle and Lewis