The Supreme Court has dismissed appeals by three newspaper who argued that they should not have to pay enhanced costs to successful claimants whose defamation and privacy cases were funded by 'no win, no fee agreements'.
By their decision, the Supreme Court confirmed that Conditional Fee Agreements remain a legally valid way for defamation and privacy cases to be funded.
All three claimants (whose cases were funded by CFAs) were successful at trial, and the newspapers were ordered to pay their costs, which included so-called success fees and After-The-Event insurance premiums.
But from the publishing and broadcasting perspective, there are reasons to be optimistic.
First, in the two libel appeals, the Justices held that upholding the costs order against the publishers would infringe their Article 10 rights. Both appeals were dismissed only because Court then decided that to deprive the Claimants of their costs retrospectively would involve a greater injustice.
Second, Lord Neuberger commented that certain procedural changes apply to defamation and privacy cases, including "more muscular case management by the courts to deal with cases proportionately ".
So, for the first time, the UK's most senior Court has specifically held that CFAs in publishing cases are incompatible with freedom of expression, and reminded lower Courts to be more robust in controlling costs.
In a unanimous judgment ( UKSC 33), the UK Supreme Court dismissed the appeals by Times Newspapers, Associated Newspapers and MGN against orders that they pay success fees and after the event insurance premiums (“additional liabilities”) under conditional fee agreements (“CFAs”) in libel and privacy claims.