campbell v mgn proportionality

Want to find more news articles? The speeches in the substantive proceedings in this case discuss the relationship between the rights of the Daily Mirror under article 10 and Ms Campbell’s right to preserve the confidentiality of personal information. However the standards and regulatory framework to which a She alleged that they had published information in respect of which she was entitled to privacy.   That challenge is based upon the special position of the media as defendants to actions for defamation and wrongful publication of personal information such as that brought by Ms Campbell against the Daily Mirror. Reversing the Court of Appeal by a 3-2 majority the additional information was confidential as its publication would have caused substantial offence to a person of ordinary sensibilities in the Claimant’s position. Earlier this year, the case of BNM v MGN [2016] caused a stir among costs practitioners, as the Court used the proportionality test to dramatically reduce the winning party’s costs award.   I am not sure that “penalty” is quite the right word, but there is no doubt that a deliberate policy of the 1999 Act was to impose the cost of all CFA litigation, successful or unsuccessful, upon unsuccessful defendants as a class. Reference: [2004] UKHL 22; [2004] 2 AC 457; [2004] 2 WLR 1232; [2004] EMLR 247, Judge: Lords Nicholls, Hoffman, Hope, Hale & Carswell, Summary: Breach of confidence - Privacy- Private information - Art 8, ECHR -Freedom of expression - Art 10, ECHR- Photographs, Appearances: In Northern Ireland under the Access to Justice (Northern Ireland) Order 2003 (2003 No 435 (N.I. This is not a means testing exercise. At the Lords stage she had entered into … The first confuses two different concepts of proportionality. THE CASE The Court of Appeal were deciding an Those proceedings settled in July 2014 following MGN’s offer to pay damages of £20,000 and on terms (among others) that MGN pay BNM’s standard basis costs. That, of course, is not a feature of the present case. First, the use of CFAs by impecunious claimants who do not take out ATE insurance. That was particularly evident in the case ofÂ. The practical problems involved in determining at the time when parties enter into CFAs with their lawyers whether they can afford to finance the litigation themselves would be enormous. The Claimant admitted that there was a public interest justifying publication of the fact that she was a drug addict and was having therapy, but claimed damages for breach of confidentiality and compensation under s.13 Data Protection Act 1998 for the publication of further details. She alleged that they had published information in respect of which she was entitled to privacy. In the High Court, MGN was found liable and Campbell was awarded £2,500 in damages, plus £1,000 in aggravated damages. The overriding objective set out in CPR 1.1 includes—. As my noble and learned friend has shown, this is a complex issue involving a delicate balance between competing rights upon which I would prefer to express no opinion. It is open to the advocate and the instructing solicitor, and to the solicitor and the client as the case may be, to agree that the fee, taxed as between party and party (which is the standard basis) or agreed, shall be increased by a figure not exceeding 100 per cent. It is, in the end, the ultimate controlling factor which the court must apply if it is to ensure, in a case such as this which is for breach of confidence, that the right of access to the court of the receiving party to vindicate her right to privacy under article 8 of the Convention is properly balanced against the losing party’s article 10 right of free speech. He said (at para 99):   The solution, (“the only way to square the circle”), offered by the Court of Appeal inÂ,   The Department of Constitutional Affairs, in a consultation paper published in June 2004, afterÂ. There has, as I have said, been no assessment in which the level of the success fees might be contested.   By a petition presented to the House on 21 February 2005, MGN seek a ruling of the Appeal Committee that they should not be liable to pay any part of the success fee on the ground that, in the circumstances of this case, such a liability is so disproportionate as to infringe their right to freedom of expression under article 10 of the Convention. 5RB is open for business and continues in full operation.   Naomi Campbell sued the publishers of the Daily Mirror (“MGN”) for breach of confidence. In October 2002 the Court of Appeal unanimously reversed the decision of Morland J and dismissed the action, ordering Ms Campbell to pay the costs of the trial and 80% of the costs of the appeal:Â,   Pursuant to the order of this House, Ms Campbell’s solicitors served three bills of costs: £377,070.07 for the trial, £114,755.40 for the appeal to the Court of Appeal and £594,470.00 for the appeal to the House of Lords. (A full account of the earlier history will be found in the judgments of the Court of Appeal inÂ. It is to the rules of court that one must look to see what protection, if any, is afforded to the losing party under the new arrangement – bearing in mind that he was not a party to the agreement by which the amount of the success fee was fixed. Both sides therefore had good reasons for seeking a compromise. Campbell (Appellant) v. MGN Limited (Respondents) ON THURSDAY 6 MAY 2004 The Appellate Committee comprised: Lord Nicholls of Birkenhead Lord Hoffmann Lord Hope of Craighead Baroness Hale of Richmond Lord Carswell HOUSE OF LORDS OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Campbell (Appellant) v. MGN Limited (Respondents) [2004] UKHL … The effect of these directions is that the exercise of applying the tests of reasonableness and proportionality to the percentage increase is, when compared with the task of applying these tests to the base costs, a separate exercise.   Direction 11.8 states that in deciding whether a percentage increase is reasonable relevant factors to be taken into account may include, among other things, “what other methods of financing the costs were available to the receiving party.” This provision should be read in the light of regulation 4(2) of the Conditional Fee Agreements Regulations 2000 (SI 2000/692) about the information to be given to the client before a conditional fee agreement is made. But the complaint is not, at any rate for the moment, concerned with the global figure for the costs of the whole proceedings. But I think that it would not matter even if she demonstrably had ample means to pay. Insofar as may be necessary I repeat paragraphs 18 to 22 and 36 to 40 of that judgment. The Defendant’s Article 10 rights justified publication of the additional information. The most important question for the court in assessing reasonableness is the risk that the client might or might not be successful: see direction 11.8(1)(a). proportionality; for instance, the degree of intrusion into private life, and the extent to 6 Campbell v MGN Ltd [2004] 2 AC 457, [21]. The degree to which the intended disclosure is in the public interest is a key factor in balancing competing rights under articles 8 and 10 of the Convention. Ms Campbell appealed.   I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hoffmann and Lord Carswell. The Court focussed on the success fee which was recovered by Ms Campbell’s lawyers (it noted that the applicant did not The challenge is to the allowance of any success fee at all. By what criteria should such an inquiry be conducted? The second factor is the conduct of the case by the claimant’s solicitors in a way which not only runs up substantial costs but requires the defendants to do so as well. Her complaint concerned the publication of additional details and photographs concerning the treatment she was receiving.   Ms Campbell denies that she is so wealthy as to be able to view with equanimity the risk of having to pay both her own and MGN’s costs of an appeal to the House of Lords. When the European Court of Human Rights inÂ. Master Rowley has cast doubt over Master Gordon-Saker’s Judgment in BNM v MGN, which had ruled recoverable additional liabilities are subject to the new costs rules on proportionality. Section 11.5 provides that, in deciding whether the costs claimed are reasonable and (on a standard basis) proportionate, the court will consider the amount of any additional liability separately from the base costs.   After a trial which lasted from 5 to 18 April 2005 the action was dismissed. In personal injury litigation one is for the most part dealing with very large numbers of small claims. As Lord Hope of Craighead has pointed out in paras 40 and 41 of his opinion, in Scotland the client who has succeeded in the litigation has to pay the success fee out of his damages and it cannot be recovered from the losing party. It seems to me undeniable that there is a degree of roughness about the justice of this, but there are inevitably incidents of any system for the funding of litigation which will bear more harshly upon some parties. Naomi Campbell sued the publishers of the Daily Mirror (“MGN”) for breach of confidence. Being from the Senior Costs Judge, the decision will likely become widely relied upon in assessments and will be in the mind of District Judges applying the proportionality test. Secondly, they say that it was not necessary to give Ms Campbell access to a court because she could have afforded to fund her own costs, as she did at the trial and in the Court of Appeal. So, in contrast to the position in Scotland, litigation may now be conducted in these cases in England on the basis that if the client is successful it will be the losing party that has to pay the success fee.   There remains the question of proportionality. All of our barristers are able to attend hearings and meetings with clients via telephone or video conference software. Part 11.8 of the Practice Directions deals with the assessment of the success fee:   It is important to notice the impact of the recoverability of success fees upon the principle that recoverable costs should have been proportionately and reasonably incurred. The contrast between the two cases could hardly be greater. This was confirmed by the House of Lords in Campbell v MGN [2004] 2 AC 457. The defendant’s costs were no doubt substantial and irrecoverable. But the appeal to the House of Lords was conducted pursuant to a CFA which provided that if the appeal succeeded, solicitors and counsel should be entitled to success fees of 95% and 100% respectively. But it is open to litigants who would not otherwise have access to justice to enter into what are known as speculative fee charging agreements to obtain legal assistance. Hers is a household name, nationally and 2. But they say that in the circumstances of this case, an award of costs increased by a success fee is for two reasons disproportionate. It uses the same expression, adding the words “and, if so, how they apply to the client and the proceedings in question.” It refers to other external sources of finance, whether as a result of insurance, membership of a trade union or otherwise, that may be available. Furthermore, the liability insurers had considerable negotiating strength because they were able to fight what Brooke LJ described as trench warfare, disputing assessments of costs in many cases and thereby holding up the cash flow of the claimants’ solicitors. Therapy details tipped the balance - The Telegraph, 5 Gray’s Inn Square It was intended to reflect the degree of risk of non-payment of fees which would be involved in undertaking the litigation on the client’s behalf. MGN appealed. The reasons why such agreements were unenforceable at common law and contrary to professional ethics are well known and do not require repetition. In evenly balanced cases a success fee of 100 per cent might well be thought not to be unreasonable. It could not be included in the costs recoverable from the losing party. While I am far from convinced about the wisdom or justice of the CFA system as it is presently constituted, it has to be accepted as legislative policy.   It is, however, worth mentioning that that system has not been universally accepted in all parts of the United Kingdom. Section 9.1 of the Practice Direction accompanying Part 44 of the CPR says that under an order for payment of ‘costs’ the costs payable will include an “additional liability” incurred under a “funding arrangement”.   The conditions laid down for an enforceable CFA are, inter alia, that it must relate to proceedings of a description specified by the Lord Chancellor, it must state the percentage by which the amount of fees which would be payable if it were not a CFA is to be increased and the percentage must not exceed the percentage specified by the Lord Chancellor. Privacy ruling sets new press limit - Guardian The Court of Appeal decision in BNM v MGN Ltd [2017] EWCA Civ 1767 has relatively limited impact. Earlier this year, the Court in BNM v MGN used the proportionality test to dramatically reduce the winning party's costs award. Rather like the decision in Reynolds v Times Newspapers, the House of Lords judgments generate rather more questions than answers as to how privacy law will work in practice. The Claimant’s Article 8 rights outweighed the Defendant’s Article 10 rights, so that publication of the additional information was an infringement of the Claimant’s Article 8 rights for which she was entitled to damages. (Case: Campbell v MGN Limited, House of Lords, 6 May 2004 [2004] UKHL 22.) COVID-19 update: 5RB is open for business and continues in full operation. MGN do not really deny that in principle it is open to the legislature to choose to fund access to justice in this way. Cited – MGN Limited v United Kingdom ECHR 24-Oct-2008 The Mirror had published a picture of Naomi Campbell leaving a rehabilitation clinic. This basic total was more than twice the costs incurred by MGN but these figures remain, as I have said, subject to taxation. F 020 7831 2686 Costs awarded by the High Court and Court of Appeal are assessed in accordance with principles stated in Part 44 of the Civil Procedure Rules. That such fees constitute a “chill factor” cannot be doubted, but the issue is whether they are a proportionate way of dealing with the issue of the funding of such litigation. For the reasons they give, with which I agree, I would dismiss this petition. The hearing was delayed until the Court of Appeal handed down judgment in BNM v MGN, but in the event it did not address the application of the test to base costs. I agree with their reasons and conclusions and wish to add only a few observations of my own. What has been created is a new claim – for "misuse of private information" (ibid, paras 14 and 17). The regimen of CFAs and the imposition of these charges upon the losing party is, however, legislative policy which the courts must accept, as Lord Hoffmann has stated in para 16 of his opinion, and the present case has to be judged against this background. MGN were mortified to find that although the award of damages had been only £3,500 (and five of the nine judges who considered the matter had thought that they should not be liable at all), they were being asked to pay legal costs (in addition to their own) in the sum of £1,086,295.47.   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. Striving for a world without capital punishment. The basis of the assessment is set out in rule 44.4, para (2) of which provides that, where the amount of costs is to be assessed on the standard basis, the court will only allow costs which are proportionate to the matters in issue and that it will resolve any doubt which it may have as to whether costs were reasonably incurred or reasonable and proportionate in amount in favour of the paying party. Account must, of course, be taken of the fact that it is to be the losing party that is being called upon to pay the success fee. First published on the PLC website on 14 May 2004. It is not for the protection of the defendant. Henceforward they would be able to vindicate their rights, which are also Convention rights, in the way that the rich and powerful have always been able to do. Gray’s Inn First, they say that it is necessarily disproportionate because it is more than (and up to twice as much as) the amount which, under the ordinary assessment rules, a costs judge would consider reasonable and proportionate.   My conclusion accordingly has to be clear, though I do not reach it without regret. Prior to the passing of the Courts and Legal Services Act 1990 it was not possible for parties to litigation and their lawyers to enter into conditional fee agreements (“CFAs”), whereby the lawyers were entitled to charge an extra success fee in the event of success in the litigation, but the clients would not be liable to pay the lawyers’ fees if they were unsuccessful. The way the rule is intended to operate is described in section 11 of the Practice Direction. Costs in the House of Lords are taxed on similar principles by the Taxing Officers of the House: seeÂ. According to the House of Lords decision in Campbell v MGN Ltd, a misuse of private information claim may succeed even though public interest expression is at stake. She says, probably with justification, that there can be few such individuals. But that, in my opinion, is also concerned with whether the claimant had the right to have the litigation funded by someone else. After a trial lasting five days in February 2002, Morland J found the case proved and awarded her £3,500 damages and costs.   The petition before the House then turns upon the question whether it is nevertheless still proportionate to permit the operation of the CFA system to the detriment of a losing defendant in a breach of confidence case when the claimant could be regarded as well able to afford to pay the costs and so as not being in need of the support of a CFA. See Also – Campbell v MGN Ltd (No 2) HL 20-Oct-2005 The appellant sought to challenge the level of costs sought by the claimant after she had succeeded in her appeal to the House. The cases of Wainwright v Home Office1 and Campbell v MGN Ltd2 are reported in close proximity in the same volume of the English Law Reports. Though a relatively small sum had been awarded, the costs and success fee were very substantial. Introduction There are a number of intellectual property concerns with regards to the given set of facts and these relate to four specific elements of the Feb 24th, 2021   Until the 1999 Act, legal aid was not available in defamation actions (see the Legal Aid Act 1988, Schedule 2, Part II, para 1), which were therefore the almost exclusive preserve of the rich. The quantum of the costs sought by Ms Campbell is not in issue in this appeal and will be decided in due course by the costs judge. was generally relevant to proportionality, not to the initial question whether a reasonable expectation of privacy arose (Campbell v MGN Ltd [2004] 2 AC 457, para 21). 7 The Fourth Amendment to the US Constitution concerns the ‘right of the people to be secure in their Campbell v Mirror Group Newspapers [2004] UKHL 22 Breach of famous model’s reasonable expectation of privacy Facts The claimant was supermodel Naomi Campbell (C). The publishers do not have the same negotiating strength as the liability insurers because there are few assessments to be contested and disputing them involves considerable additional costs. Section 11.9 declares that a percentage increase will not be reduced simply on the ground that, when added to the base costs, the total appears disproportionate. One is dealing with a very small number of claims to payment of relatively large sums of costs, which some publishers may be strong enough to absorb or insure against but which can have serious effects upon their financial position. The headline alongside the photograph read “Naomi: I’m a drug addict” and the article contained in very general terms information relating to Ms Campbell’s treatment for drug addiction, including the number of NA meetings she had attended. But in my opinion there is no need for such measures because the existing scheme is compatible. But this was changed when subsections (6) and (7) of the new section 58A were inserted into the 1990 Act:   Under the Civil Procedure Rules and its accompanying Practice Directions, success fees are now (subject to assessment) normally recoverable from the losing party.   Thus, notwithstanding the need to examine the balance on the facts of the individual case, I think that the impracticality of requiring a means test and the small number of individuals who could be said to have sufficient resources to provide them with access to legal services entitled Parliament to lay down a general rule that CFAs are open to everyone. But, as MGN concede, this rule is for the protection of the client, who may have some form of insurance which covers litigation costs and makes it unnecessary for him to enter into a CFA.   The blackmailing effect of such litigation appears to arise from two factors. 10)) provision is made both for CFAs and an alternative, the setting up of litigation funding agreements. It does not contemplate an investigation into his means to decide whether he could have taken the risk of paying the costs himself. MGN challenged the decision in Campbell v MGN (No.2) ([2005] 1 WLR 3394) on Article 10 grounds. 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