11th April 2017
Simon Browne QC and James Laughland appeared for two separate successful Respondents in the Supreme Court. Three national newspapers (The Times, Daily Mail, and The Mirror) were attempting to avoid paying any additional liabilities (success fees and ATE premiums) to privacy and defamation claimants funded by conditional fee agreements. The challenge was based upon the newspapers’ freedom of expression under Article 10 of the European Convention of Human Rights
Simon Browne QC acted for Sadie Frost and another 7 victims in privacy claims as a result of phone hacking by the Mirror Group whilst James Laughland (led by William McCormick QC) appeared for Mr. Miller in a defamation action against the Daily Mail. Another Respondent, Mr Flood was separately represented in a defamation claim against the Times newspaper.
The unanimous decision of the Court, delivered in the speech of Lord Neuberger, determined that additional liabilities were recoverable for the Claimants:
(1) The court declined to decide the fundamental issue of whether there is a general rule as a matter of domestic law that recoverability would infringe publishers’ art.10 rights, and whether they should follow the Strasbourg decision of MGN v. UK. They say that the UK Government is the most affected party, and they were not present, so they will not decide that issue. The SC proceeded on the assumption that it was applicable.
(2) The court decided in favour of Flood and Miller on the basis that they have A1P1 rights in their CFA/ATE, that somebody’s Convention rights would be infringed whatever the outcome, so it was solved by finding the just and appropriate remedy. They held that the A1P1 rights were stronger than the Art 10 rights in these cases, so the costs orders would be upheld.
(3) The court did not expressly decide the Frost cases on that basis, noting that the A1P1 rights were weaker as the CFAs were entered later but they decided it on the broader basis that the general rule (on the assumption it exists) is of no application in cases involving illegality such as found here.
The full speech is found in  UKSC 33 under the title of Times Newspapers Ltd. (Appellant) v Flood (Respondent); Miller (Respondent) v Associated Newspapers Ltd (Appellant); Frost and Other (respondents) v MGN Ltd (Appellant)