BNM v Mirror Group Newspapers Ltd [2016]

In BNM v Mirror Group Newspapers Ltd [2016] EWHC B1 (Costs) (11 January 2016) the matter was heard before Master Gordon-Saker. The Claimant was in a relationship between 2008 and 2011 with a premiership footballer which was only known to a small group of people. In 2011 she lost her phone which included her personal and private details. The Defendant, the publisher of several newspapers, was contacted by someone who knew of a person, claiming to be in possession of the Claimant’s phone, who revealed the relationship between the Claimant and the premiership footballer.

The Claimant’s father made a complaint to the Defendant and the phone was returned to her on the 3rd May 2011, whereupon, she noted all her data had been deleted.

The Claimant, in March 2013, instructed Solicitors and on the 18th April 2013 signed a conditional fee agreement allowing them a success fee of 100% of their nominal fees but a discounted success fee should the claim be settled before the trial.

On the 7th May 2013 the Solicitors entered into a conditional fee agreement with counsel allowing for a success fee of 100% but a discounted success fee should the claim be settled prior to exchange of witness statements.

On the 25th July 2013 the Claimant purchased ATE with indemnity cover up to £165,000 in respect of liability for the Defendants costs and her own disbursements.

On the 30th July 2013 the Claimant’s Solicitors entered into a conditional fee agreement with another counsel allowing for a success fee of 100% with a discounted success fee should the claim be settled prior to exchange of witness statements.

The Claimant’s proceedings started on the 31st July 2013, she obtained an anonymity order the day before. Her claim was for an injunction to prevent the Defendant from publishing private information obtained from her phone, damages and, the court to make an order for the delivery up of any confidential information.

The claim was concluded on the 14th July 2014 under a Consent Order whereby the Defendants gave an undertaking not to divulge confidential information, pay the Claimant damages of £20,000 and her costs in the matter.

The Claimant’s costs were £241,817 including:

  • 60% success fee on the Solicitors costs
  • 75% success fee on both counsels costs
  • ATE insurance premium of £58,000 plus insurance premium tax of £3,480

Master Gordon-Sacker’s Judgment concerned leading counsel for the Defendants general point 5 but, he reserved judgment on the Article 10 point to allow the rest of the assessment to go ahead within the 2 days listed.

The Defendant’s argued that that the recovery of additional liabilities was unlawful, and  placed the United Kingdom in breach of its obligations under the ECHR and the Court in breach of its own obligations under the Human Rights Act 1988 to uphold the Convention.

The Defendant argued that the huge additional expense caused by additional liabilities unlawfully interfered with its right to free expression under article 10 and its right of access to the Court under article 6.

Further that the ECHR had ruled that regime was incompatible with the Convention and therefore the UK was and remained in breach of its obligations by failing to repeal the recovery of additional liabilities.

The Defendant asked the court to

  1. declare any relevant primary legislation to be incompatible with the Convention;
  2. nullify all relevant secondary legislation; and
  3.  in any event refuse to award any additional liabilities as a matter of discretion.

Master Gordon-Sacker observed that he did not have the jurisdiction to make such a declaration in (i) above or nullify in (ii) above but, he did have jurisdiction to refuse to award as in (iii) above.

He examined the relevance of Articles 6 and 10 of the ECHR where under Article 6, everyone is entitled to a fair trial and under Article 10, and everyone has the right to freedom of expression.

He further examined the Courts and Legal Services Act 1990 and found that this case did  come within the definition of publication and privacy proceedings and therefore, subject to the Article 10 point, the costs order could make allowance for a success fee to be paid.

He referred to the Access to Justice Act 1999 and noted s.29

“Where in any proceedings a costs order is made in favour of any party who has taken out an insurance policy against the risk of incurring a liability in these proceedings, the costs payable to him may, subject in the case of court proceedings to rules of court, include costs in respect of the premium of the policy.”

He noted that section had been revoked by s.46(2) of The Legal Aid, Sentencing and Punishment of Offenders Act 2012 for most proceedings but not yet in force in respect of publication and privacy matters. Subject to the Article 10 point, Master Gordon-Saker allowed the Claimant to include costs of the ATE premium.

Master Gordon-Saker observed that

“It follows that in my opinion the success fee as such cannot be disallowed simply on the ground that MGN’s liability would be inconsistent with its rights under article 10. The scheme under which such liability is imposed was a choice open to the legislature”

In considering the doctrine of precedent, he noted that the decisions of the Judicial Committee of the House of Lords and of the Supreme Court were binding on every court inferior to it and that the decision in Campbell v MGN was binding on this court. He noted that the court, on interpretation of the ECHR, should follow decisions made by it.

He referred to the case of Kay v London Borough of Lambeth where Lord Bingham said

“It is ordinarily the clear duty of our domestic courts, save where and so far as constrained by primary domestic legislation, to give practical recognition to the principles laid down by the Strasbourg court as governing the Convention rights”

Master Gordon-Saker concluded that following Campbell v MGN would not be a violation of the Defendant’s right to freedom of expression as a publisher under Article 10 if he granted an order to the Claimant allowing her to recover a reasonable success fee from the Defendant. He continued, with reference to Campbell v MGN, that any Order would not be incompatible with the Defendant’s Convention rights as s.6 (1) of the Human Rights Act does not stop him making that order.

With regard to the ATE there were no submissions made by either party. Master Gordon-Saker considered that for the same reasons put forward in Campbell v MGN by the House of Lords as to a success fee, an order for the Defendants to pay costs for the Claimant’s ATE would not infringe upon its Article 10 Rights and allowed the success fees at 33 per cent and the ATE insurance premium as claimed.

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