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. 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. But section 58A of the 1990 Act, which was introduced by section 27(1) of the Access to Justice Act 1999, changed all that. 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. Judgments - Campbell (Appellant) v. MGN Limited (Respondents) (back to preceding text) 101. So it may be said, and Ms Campbell’s counsel does say, that there is no harm in inhibiting such publications. Law Lords rule in supermodel's favour - BBC News So it is not open to the client to have the amount of the uplift reduced when the solicitor’s account is being taxed, although the figure to which it is to be applied is subject to taxation. Losing defendants were to be required to contribute to the funds which would enable lawyers to take on other cases which might not be successful but would provide access to justice for people who could not otherwise have afforded to sue. The overriding objective set out in CPR 1.1 includes—. If MGN are right about Ms Campbell’s means, she would have been able to pay their costs if she had lost. Conditional fee arrangements cannot be the subject of an enforceable conditional fee agreement in criminal proceedings or family proceedings: see section 58A(1) and (2). 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. 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. 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. 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. In the High Court, MGN was found liable and Campbell was awarded £2,500 in damages, plus £1,000 in aggravated damages. 10)) provision is made both for CFAs and an alternative, the setting up of litigation funding agreements. It has not been shown to be incompatible with the Convention and the objections in principle advanced by MGN cannot be sustained. 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. 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   It has to be said that there are many who regard the imbalance in the system adopted in England and Wales as most unjust. All of our barristers are able to attend hearings and meetings with clients via telephone or video conference software. By what criteria should such an inquiry be conducted? However the standards and regulatory framework to which a The expression “costs” for this purpose includes any additional liability by way of a percentage increase incurred under a conditional fee agreement: see the definitions of “costs”, “funding arrangement” and “additional liability” in rule 43.2(1). 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 … There is no human right to drive a vehicle upon the road free of the cost of litigation arising from road accidents. Therapy details tipped the balance - The Telegraph, 5 Gray’s Inn Square 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 House of Lords, as it then However, noting that “anything said about proportionality, at whatever judicial level, is subjected to anxious scrutiny”, Master Gordon-Saker stressed that nothing in his judgment should be taken as an attempt to provide guidance. The reasons for the shift in opinion were described by Lord Woolf CJ in para 7 of his judgment inÂ,   The subsequent history of CFAs has been fully set out in the opinion of Lord Scott of Foscote in the House of Lords inÂ. First, the use of CFAs by impecunious claimants who do not take out ATE insurance. That, of course, is not a feature of the present case. The Court focussed on the success fee which was recovered by Ms Campbell’s lawyers (it noted that the applicant did not 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. 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. The reasons why such agreements were unenforceable at common law and contrary to professional ethics are well known and do not require repetition. 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. MGN appealed. Earlier this year, the Court in BNM v MGN used the proportionality test to dramatically reduce the winning party's costs award. 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. In view of the importance of this question, it has been argued before an enlarged Appeal Committee consisting of those members of the House who heard the substantive appeal. The means of the client are irrelevant to the question whether or not it was reasonable for her to enter into a conditional fee agreement. 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. In particular it says little, if anything, about the proportionality itself. The availability of legal services under a CFA is necessary to provide the access to a court required by article 6 and thereby give litigants an effective means of enforcing their rights. For the reasons they give, with which I agree, I would dismiss this petition. She alleged that they had published information in respect of which she was entitled to privacy. 5RB is open for business and continues in full operation.   This is not however a problem which arises in the present case. In … But there is no such machinery for a CFA. At the trial and in the Court of Appeal they had acted under an ordinary retainer. 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. THE CASE The Court of Appeal were deciding an   Naomi Campbell sued the publishers of the Daily Mirror (“MGN”) for breach of confidence. She says, probably with justification, that there can be few such individuals. The primary legislation from which the Lords of Council and Session derived their power to make these enactments is to be found in section 36(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. Campbell wins privacy battle with Daily Mirror - The Times They say that the threat of liability to pay a large sum by way of costs is just as likely to inhibit freedom of expression as the threat of liability to pay a large sum by way of damages. The House of Lords upheld the claim and awarded her costs. It is not for the protection of the defendant. 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. Naomi Campbell was photographed coming out of a Narcotics Anonymous (“NA”) meeting on the King’s Road. 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. Though a relatively small sum had been awarded, the costs and success fee were very substantial. In the end, therefore, it may be that a legislative solution will be needed to comply with article 10. In Northern Ireland under the Access to Justice (Northern Ireland) Order 2003 (2003 No 435 (N.I. Thus the basic profit costs claimed by the solicitors and fees claimed by counsel came to £288,468. This is not a means testing exercise. 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. Giving practical advice on the parameters of the law is now difficult. Subject to those exceptions the system is available to litigants, as section 58A(6) says, in “any proceedings”. They are vividly illustrated by the recent judgment of Eady J inÂ. The Defendant’s Article 10 rights justified publication of the additional information. 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. (i) BNM v MGN Ltd [2016] EWHC B13 (Costs) –application of new test to both base costs and additional liabilities –though separately –Court of Appeal October 2017; (ii) King v Basildon & Thurrock [2016] EWHC B32 (Costs) –proportionality does not In personal injury litigation one is for the most part dealing with very large numbers of small claims. Proportionality and Costs Assessment: BNM v MGN Limited [2017] EWCA Civ 1767 In edition 143 of BC Disease News ( here ), we reported on the case of BNM v MGN Limited [2016] EWHC B13 (Costs), in which Costs Master Gordon-Saker conducted a line by line assessment of costs on the standard basis. 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. The scheme under which such liability is imposed was a choice open to the legislature. 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. Only costs which have been proportionately and reasonably incurred and which are proportionate and reasonable in amount will be recoverable against the paying party: see rules 44.4 and 5 of the CPR. 39401/04) was a case involving the supermodel Naomi Campbell’s right to privacy versus a newspaper’s right to freedom of expression. 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. After a trial lasting five days in February 2002, Morland J found the case proved and awarded her £3,500 damages and costs. The Conditional Fee Agreements Order 2000 (SI 2000/823) allowed the use of CFAs in all litigation except criminal and certain family and environmental proceedings and fixed the maximum success fee at 100%.   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. A special feature of this stage of the proceedings was that Ms Campbell retained solicitors and counsel pursuant to a conditional fee agreement (“CFA”). But any reduction in the amount of the percentage increase that is to be paid by the losing party will have to borne by the client under her agreement with the solicitor. But the complaint is not, at any rate for the moment, concerned with the global figure for the costs of the whole proceedings. 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. That was particularly evident in the case ofÂ. 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. 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 proportionality test has to be applied to each.   After a trial which lasted from 5 to 18 April 2005 the action was dismissed. 7 The Fourth Amendment to the US Constitution concerns the ‘right of the people to be secure in their   The blackmailing effect of such litigation appears to arise from two factors. 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. Per Lords Nicholls and Hoffman, dissenting: The Court of Appeal were correct in holding that the additional information was within the degree of latitude that should reasonably be afforded to journalists. 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. It could not be included in the costs recoverable from the losing party. It is not recoverable from the losing party. 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. As late as 1979, when the government accepted the view of the Royal Commission on Legal Services to that effect, this was conventional morality. It is true that when one has to balance rights such as freedom of expression against other rights such as privacy or access to a court, there has to be, as Lord Steyn said inÂ. Her complaint concerned the publication of additional details and photographs concerning the treatment she was receiving.   In my opinion these arguments are flawed. Similarly, one of the matters to be taken into account in assessing the percentage to be allowed by way of success fee is “what other methods of financing the costs were available to the receiving party”: see section 11.8(c) of the Practice Direction. What has been created is a new claim – for "misuse of private information" (ibid, paras 14 and 17). I agree with their reasons and conclusions and wish to add only a few observations of my own. It is the effect which the threat of heavy liability may have upon the conduct of a newspaper in deciding whether to publish information which ought to be published but which carries a risk of legal proceedings against it. The publication of 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. Daily updated news about the death penalty worldwide. But that, in my opinion, is also concerned with whether the claimant had the right to have the litigation funded by someone else.   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.   The argument therefore depends upon its second limb, namely that funding litigation in this way becomes disproportionate when a litigant does not need a CFA to be able to sue or, in this case, appeal. After a trial lasting five days in February 2002, Morland J found the case proved and awarded her £3,500 damages and costs.   In defamation cases, on the other hand, the reasons are much weaker. Naomi Campbell is a celebrated fashion model. Campbell v. MGN Ltd [2005] UKHL 61 (20 October 2005), Cook v. Financial Insurance Company Ltd [1998] UKHL 42; [1998] 1 WLR 1765 (3rd December, 1998), Roe v Minister of Health [1954] EWCA Civ 7 (08 April 1954). In the recent decision of BNM v MGN Ltd Senior Costs Judge, Master Gordon-Saker reduced a bill, already assessed as reasonable, by half – on grounds of proportionality. There has, as I have said, been no assessment in which the level of the success fees might be contested. Mgn Limited v. the United Kingdom concerned several articles published in 2001 in the tabloid Mirror (now Daily Mirror), revealing that supermodel Naomi Campbell was attending Narcotics Anonymous (NA) meetings in an attempt to treat her drug addiction. Campbell v MGN (No 2) [2005] UKHL 61 Costs issues rarely come before the House of Lords, especially when they relate to conditional fee agreements (CFAs). Finding ways of ensuring that the impecunious claimant can also do this may be more of a challenge. Disbursements were £26,020.65. But there is a human right to freedom of expression with which the imposition of an excessive cost burden may interfere. MGN challenged the decision in Campbell v MGN (No.2) ([2005] 1 WLR 3394) on Article 10 grounds. Campbell (Appellant) v. MGN Limited (Respondents) [2004] UKHL 22 THE LORD NICHOLLS OF BIRKENHEAD My Lords, 1.   There remains the question of proportionality. 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. 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. As Lord Hoffmann has stated (para 23 of his opinion), it is not really in dispute whether the legislature can in principle adopt this method of funding access to justice.   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.   It is, however, worth mentioning that that system has not been universally accepted in all parts of the United Kingdom. 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. The defendant’s costs were no doubt substantial and irrecoverable. The case of MGN Limited v United Kingdom (Application No. DX LDE 1054, Barristers regulated by the Bar Standards Board.   The consequence is spelled out in section 11.9:   These principles have been accepted as equally applicable to a taxation of costs in the House of Lords: seeÂ,   Keith Ashby and Professor Cyril Glasser, in a recent article in the Civil Justice Quarterly (. BNM v MGN Ltd Neither the Claimants nor the Defendant relied on my decision in BNM v MGN [5] in relation to how the post-2013 test of proportionality should be applied. But in my opinion there is no need for such measures because the existing scheme is compatible. 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. On the other hand it would be wrong to conclude that this is an empty exercise. The Court of Appeal reversed this decision. This modest award reflected the fact that Ms Campbell conceded that her own conduct prevented her from objecting to the newspaper’s most serious allegation, namely, that she had been addicted to drugs. Cited – MGN Limited v United Kingdom ECHR 24-Oct-2008 The Mirror had published a picture of Naomi Campbell leaving a rehabilitation clinic.     51.  The government, allied with the Law Society, underwent a Pauline conversion in 1989, when it published a Green Paper favouring the introduction of CFAs and followed it up by making statutory provision for them in the 1990 Act. The Strasbourg court was fairly undemanding about this state of affairs, usually holding that it was not inconsistent with article 6 to expect both claimants and defendants in defamation proceedings to act in person: seeÂ.   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. 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”.   I cannot however part with this case without some comment upon other problems which defamation litigation under CFAs is currently causing and which have given rise to concern that freedom of expression may be seriously inhibited. 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). First published on the PLC website on 14 May 2004. And if the solicitor is not expected to make such inquiries in advance, it would be most unfair for the success fee to be afterwards disallowed on the ground that his client had sufficient means. It was submitted on behalf of the appellant Ms Campbell, supported by the helpful written submission of the Law Society, that such an examination would be unworkable, and I have to agree with this conclusion, attractive as the idea might appear at first sight.   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. At the trial, Morland J upheld both claims. 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. 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. The Court of Appeal decision in BNM v MGN Ltd [2017] EWCA Civ 1767 has relatively limited impact. MGN do not really deny that in principle it is open to the legislature to choose to fund access to justice in this way. One reason is that the three bills have not yet been assessed. Finding ways of moderating the costs of defamation cases would then be in the best interests of all concerned.   Brooke LJ was sympathetic to these complaints. Striving for a world without capital punishment. In some kinds of litigation, such as personal injury actions, the funds provided by losing defendants were intended to be in substitution for funds previously provided by the state in the form of legal aid. BNM claimed costs of £241,817, which included a success fee in respect of her solicitors’ costs of 60 per cent, success fees in respect of counsel of 75 per cent, and an ATE insurance premium of £58,000 plus £3,840 IPT. 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. But article 10 is concerned with whether a rule which requires unsuccessful defendants not only to pay the reasonable and proportionate costs of their adversary in the litigation, but also to contribute to the funding of other litigation, is a proportionate measure to provide those other litigants with access to justice, having regard to its effect on the article 10 right to freedom of expression. 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. A funding arrangement means a CFA or a policy taken out to insure against liability to pay the other side’s costs (“after the event” or “ATE” insurance) and an “additional liability” is the success fee or the ATE premium. Section 58A(6) provides that a costs order made in any proceedings may, subject in the case of court proceedings to rules of court, include provision requiring payment of any fees payable under a conditional fee agreement which provides for a success fee. This right is one of the means by which our law protects the right to respect for private life guaranteed by article 8 of the Convention. It is true that costs are awarded only against defendants who have been found to have wrongfully published matter which is defamatory or in breach of a claimant’s right to the confidentiality of personal information. MGN v UK Campbell brought a claim for breach of privacy. She alleged that they had published information in respect of which she was entitled to privacy. Faced with a free-spending claimant’s solicitor and being at risk not only as to liability but also as to twice the claimant’s costs, the defendant is faced with an arms race which makes it particularly unfair for the claimant afterwards to justify his conduct of the litigation on the ground that the defendant’s own costs were equally high. Their own solvency is not threatened. The amount of the permissible uplift was fixed by the Lord President of the Court of Session in 1992 following consultation with the Faculty of Advocates and the Law Society of Scotland. The CPR on costs are concerned with whether expenditure on litigation was proportionate to the amount at stake, the interests of the parties, complexity of the issues and so forth. Naomi Campbell sued the publishers of the Daily Mirror (“MGN”) for breach of confidence. I have had the advantage of reading in draft the opinions prepared by my noble and learned friends Lord Hoffmann and Lord Hope of Craighead.   There are substantial differences between the costs in personal injury litigation which are the subject of the agreement and costs in defamation proceedings.