CASE OF MALKIEWICZ AND OTHERS v. THE UNITED KINGDOM

FOURTH SECTION

CASE OF MALKIEWICZ AND OTHERS v. THE UNITED KINGDOM

(Application no. 39449/21)

JUDGMENT
 

STRASBOURG

17 June 2025

This judgment is final but it may be subject to editorial revision.

In the case of Malkiewicz and Others v. the United Kingdom,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

 Ana Maria Guerra Martins, President,
 Tim Eicke,
 András Jakab, judges,
and Simeon Petrovski, Deputy Section Registrar,

Having regard to:

the application (no. 39449/21) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 30 July 2021 by two Polish nationals and a private limited company with its registered office in the United Kingdom, relevant details listed in the appended table, (“the applicants”) who were represented by Mr D.J. Price KC, a solicitor advocate practising in London.

the decision to give notice of the complaints concerning Article 10 of the Convention to the United Kingdom Government (“the Government”), represented by their Agent, Mr M. Boulton of the Foreign, Commonwealth and Development Office;

the decision of the Polish Government not to exercise their right to intervene in the proceedings (Article 36 § 1 of the Convention);

the observations submitted by the respondent Government and the observations in reply submitted by the applicants;

the comments submitted by Media Defence, who were granted leave to intervene by the President of the Section;

Having deliberated in private on 27 May 2025,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The present case principally concerns the compatibility with Article 10 of the Convention of the recoverability of success fees where proceedings are brought against a media defendant by a claimant who has entered into a conditional fee arrangement (“CFA”) with his legal representatives.

2.  The first and second applicants are a married couple. At the relevant time they were the editors of a Polish-language monthly magazine called “Nowy Czas”, and the owners of the third applicant, which published “Nowy Czas”.

3.  On 21 January 2016 JS (“the claimant”) issued a defamation claim against the applicants in respect of an article published in Nowy Czas.

4.  The applicants instructed CR, a firm of solicitors specialising in defamation. Three weeks before the start of the trial, CR ceased to act for the applicants, and subsequently obtained a charge over the first and second applicants’ matrimonial home.

5.  The applicants were represented at trial by senior counsel (“AM QC”) on a direct access basis. The claimant appeared as a litigant-in-person.

6.  The trial judge dismissed the defamation claim, finding that most of the allegations in the article were true and that the public interest defence applied to all of them.

7.  The claimant appealed on the grounds that the trial judge had been wrong to uphold the public interest defence; that he should not have found that one of the most serious allegations was true; and that the hearing had been unfair. He engaged SB Solicitors on a CFA, with a 100% success fee, and junior counsel on a CFA, without a success fee.

8.  The applicants were represented by AM QC.

9.  The Court of Appeal found in favour of the claimant on all three grounds but did not order a retrial.

10.  The applicants appealed to the Supreme Court, against the finding that the trial had been unfair and against the Court of Appeal’s analysis of the public interest defence. They instructed Mr D. J. Price QC, acting on a CFA, without a success fee, and AM QC. The claimant was represented by SB Solicitors and junior and senior counsel under CFAs.

11.  The Supreme Court unanimously dismissed the appeal. However, it ordered a retrial and corrected errors in the Court of Appeal’s analysis of the public interest defence.

12.  The Supreme Court ordered the applicants to pay 60% of the claimant’s appeal costs in the Court of Appeal and Supreme Court; that 40% of the applicants’ costs in the Supreme Court and Court of Appeal would be their costs in the case; and that the applicants should make an interim payment of 50,000 British pounds (GBP) to the claimant.

13.  Prior to the retrial, SB Solicitors proposed a settlement. They indicated that the claimant’s costs for the Court of Appeal and Supreme Court would be GBP 506,590 plus VAT (GBP 631,463 including VAT), of which GBP 207,185 represented the CFA success fees (GBP 248,622 with VAT).

14.  Although the applicants initially declined to settle, they were unable to raise funds to pay counsel to represent them at the retrial. On 12 June 2021 they agreed to settle the claim on a walk-away basis, meaning they would not have to make any further payment to the claimant, but would forgo any right to recover their costs from him, and would not be entitled to seek the return of the GBP 50,000 already paid.

15.  The applicants own costs amounted to GBP 578,438.

16.  The applicants complained that their liability to pay the claimant’s CFA success fees violated their right to freedom of expression, as provided in Article 10 of the Convention.

THE COURT’S ASSESSMENT

17.  The relevant domestic law and practice concerning costs, CFAs, and success fees is set out in detail in MGN Limited v. the United Kingdom (no. 39401/04, §§ 89-120, 18 January 2011, hereinafter referred to also as “the MGN Limited judgment”); MGN Limited v. the United Kingdom ((dec.), no. 72497/17, §§ 21-31, 20 September 2022, hereinafter referred to as “the MGN Limited decision”); and Associated Newspapers Limited v. the United Kingdom (no. 37398/21, §§ 19-41, 12 November 2024).

18.  The Government claimed that the applicants were not “victims” of the alleged violation, and/or had not exhausted domestic remedies. They had settled the claim and only had to satisfy their own costs. Had they not settled, they could have disputed any liability to pay CFA fees before a costs judge during costs assessment, and challenge the costs judge’s findings on a point of principle.

19.  In Associated Newspapers Limited (ibid., §§ 62-67) the Court held that an applicant who had settled a claim for costs, in one case, and both a substantive claim and a claim for costs, in another, was a victim of a violation of Article 10 as a consequence of its liability to pay CFA success fees and/or After the Event insurance premiums.

20.  In contrast to the settlements in Associated Newspapers Limited, the settlement in the present case did not require the applicants to make any contribution to the claimant’s costs, save for the GBP 50,000 already paid (see paragraph 12 above). In Associated Newspapers Limited the Court undoubtedly considered it relevant that the settlement figure would have to reflect the success fees. However, it was principally concerned that the simple fact of settlement should not deprive the applicant of its victim status. The risk that a defendant would be forced to settle early was one of the fundamental flaws in the regime and the fact of settlement alone should not prove fatal to its Article 10 complaint (Associated Newspapers Limited, ibid., § 64).

21.  Not every defendant who settles early in proceedings brought by a claimant with a CFA can necessarily claim to be a victim of an alleged violation of Article 10. There may well be cases in which the settlement was clearly driven solely by factors other than the risk of an excessive costs burden flowing from the liability to pay CFA success fees. However, in the present case it cannot be excluded that the risk of an excessive costs burden played a part in the applicants’ decision to settle. Accordingly, the Government’s objection of lack of victim status should be dismissed.

22.  Furthermore, in Associated Newspapers Limited (ibid., §§ 51-56) the Court was not satisfied that a domestic challenge to the applicant’s costs liability by reference to Article 10 of the Convention would have afforded the applicant company an effective remedy for its Article 10 complaint. Therefore, the applicants cannot be said to have failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention and the Government’s objection in this respect should also be dismissed.

23.  As this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention, it must be declared admissible.

24.  The applicants argued that their costs risk was materially increased by the success fees payable to SB Solicitors, which remained recoverable under domestic law.

25.  The Government argued that there was no interference with the applicants’ Article 10 rights since no success fee was paid. Alternatively, any interference was prescribed by law, pursued a legitimate aim and satisfied the necessity test.

26.  Media Defence indicated that in comparison to other countries, defamation law in the United Kingdom was procedurally complex and highly technical, which increased legal costs and had a chilling effect on freedom of expression.

27.  In light of its conclusions at paragraph 21 above, the Court would accept that the recoverability of the CFA success fees interfered with the applicants’ rights under Article 10 of the Convention.

28.  Neither the lawfulness of the interference, nor the fact that it pursued a legitimate aim, namely the widest public access to legal services for civil litigation funded by the private sector, would appear to be in dispute.

29.  In the MGN Limited judgment (cited above, § 217) the Court held that in the context of Article 10 the recoverability of success fees was disproportionate to the legitimate aims pursued by the CFA regime and exceeded even the broad margin of appreciation accorded to the Government in such matters. In the MGN Limited decision (cited above), the Court clarified that while its conclusion in the MGN Limited judgment could not be confined to the specific facts of that case, it did not follow that the recoverability of success fees against media defendants would inevitably constitute a violation of Article 10 (see the MGN Limited decision, cited above, § 53). However, in the MGN Limited decision the Court was considering whether a media defendant could rely on the MGN Limited judgment if it had not acted in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism (see the MGN Limited decision, cited above, §§ 53-54). In determining whether the case fell within the general rule established in the MGN Limited judgment, its focus was on the newsgathering activities which gave rise to the proceedings, and not on extraneous factors such as the situation of the claimant or the percentage of the recoverable success fees. It has subsequently indicated that only “extreme” cases will fall outside the general rule established in the MGN Limited judgment (see Associated Newspapers Limited, cited above, § 91), and the present case is not such a case.

30.  In Associated Newspapers Limited the Court was not persuaded that developments at the domestic level following the MGN Limited judgment (ibid., §§ 92-95) had been significant in practice. In the absence of any further evidence on this issue, there continues to be no basis for the Court to depart from its conclusions in the MGN Limited judgment.

31.  Consequently, the applicants in the present case may rely on the general rule established in the MGN Limited judgment.

32.  There has accordingly been a violation of Article 10 of the Convention.

33.  The applicants also complained more generally that the costs regime connected to the respondent State’s defamation laws breached their right to freedom of expression, as provided in Article 10 of the Convention.

34.  This complaint goes beyond the discrete issue of the CFA regime that was before the Court in the MGN Limited judgment, the MGN Limited decision and Associated Newspapers Limited (all cited above) and amounts, in effect, to a wholesale attack on the costs regime applicable to defamation law in the United Kingdom, which, as indicated by the Government, has not been litigated before the domestic courts.

35.  However, as the Court has already found that the applicants’ liability to pay the CFA success fee violated Article 10 of the Convention, it does not find it necessary to examine the admissibility or merits of the more general complaint concerning the Article 10 compatibility of the costs regime (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

36.  The applicants claimed pecuniary and non-pecuniary damage. The former was for reimbursement of (a) the GBP 50,000 interim payment to the claimant’s legal representatives and (b) the payments to the applicants’ legal representatives. The applicants also claimed EUR 33,320 plus VAT for the costs of the application and the subsequent proceedings before the Court.

37.  The Government contested the applicant’s claims.

38.  As a consequence of the settlement agreed between the parties, the applicants only had to pay the sum of GBP 50,000 towards the claimant’s costs. This represented a small proportion (less than 10%) of the claimant’s total costs and it is not known whether any of this sum went towards paying the CFA success fees. Consequently, the Court does not consider it appropriate to make any award in respect of pecuniary loss.

39.  The Court nevertheless awards the applicants EUR 5,000 jointly in respect of non-pecuniary damage, plus any tax that may be chargeable.

40.  Although the applicants’ representative has submitted a description of the work undertaken, he has not submitted an itemised bill of costs. According to the Court’s Practice Direction on Just Satisfaction Claims, documents showing that the applicant has paid or is under an obligation to pay legal fees are required. In the absence of any such document, the Court makes no award for costs and expenses.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicants, within three months, EUR 5,000 (five thousand euros) jointly, plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; and

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 17 June 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Simeon Petrovski Ana Maria Guerra Martins
 Deputy Registrar President

APPENDIX

List of applicants:

Application no. 39449/21

No.

Applicant’s Name

Year of birth/ registration

Nationality

Place of residence/ registration

1.

Grzegorz Zenon MALKIEWICZ

1956

Polish

London

2.

Teresa BAZARNIK-MALKIEWICZ

1957

Polish

London

3.

CZAS Publishers Limited

2006

n/a

London