Information Note on the Court’s case-law No. 137
January 2011
MGN Limited v. the United Kingdom - 39401/04
Judgment 18.1.2011 [Section IV]
Article 10
Article 10-1
Freedom of expression
Damages award for breach of confidence after newspaper disclosed details of a celebrity’s therapy for drug addiction: no violation
Order requiring newspaper to pay success-fees of opposing party's lawyers: violation
Facts – The applicant was the publisher of a national daily newspaper which published an article divulging details about a well-known fashion model’s drug addiction therapy. The article was accompanied by photographs, including one taken secretly near a Narcotics Anonymous (NA) centre she was attending. When the model’s lawyer wrote to the applicant complaining of a breach of his client’s privacy, the applicant published a further two articles, accompanied by a similar picture, in which it criticised the model’s lifestyle and claim to privacy. The model sued for breach of confidence. Her claim was ultimately upheld by a majority in the House of Lords who found that, although there was a public interest in knowing that she was misleading the public when she said that she did not take drugs, the publication of details of her treatment at NA and of covertly taken photographs had nevertheless been an unjustifiable invasion of her privacy. She was awarded damages of 3,500 pounds sterling (GBP) and legal costs. The costs of the proceedings in the House of Lords included a “success-fee” element under a Conditional Fee Agreement* between the model and her lawyers that almost doubled the base costs. The applicant contested payment of the success fees on the grounds that they were so disproportionate as to infringe its right to freedom of expression. However, it eventually agreed on a settlement (which included the success-fee element) after the House of Lords had ruled that the success-fee regime was compatible with the Convention. The total agreed costs for the two sets of proceedings in the House of Lords alone came to GBP 500,000.
Law – Article 10
(a) Breach of confidence: The finding of a breach of confidence amounted to interference with the applicant’s right to freedom of expression that was prescribed by law and pursued the legitimate aim of protecting the rights of others. As to whether the interference had been necessary in a democratic society, the Court noted that the sole issue between the domestic judges, who had all agreed on the relevant Convention principles, had concerned the application of those principles to the question whether the interference with the editorial decision to publish the additional materials (concerning the claimant’s attendance at NA meetings) was justified. The domestic courts had examined that question at length and given detailed reasons for their decisions. Against that background and having regard to the margin of appreciation accorded to decisions of national courts in this context, the Court would require strong reasons to substitute its view for that of the final decision of the majority of the House of Lords. In point of fact, it considered the reasons that had been given by the majority convincing. The majority had underlined the intimate and private nature of the additional information about the claimant’s physical and mental health and treatment and concluded that its publication was harmful and risked causing a significant setback to her recovery. They had further noted that the photographs, which were clearly distressing, had been taken covertly with a view to inclusion in the article and were accompanied with captions which made it clear she was coming from her NA meeting and allowed the location to be identified. Lastly, the publication of the additional material had not been necessary to ensure the credibility of the story, as the applicant already had sufficient information, while the public interest had been satisfied by the publication of the core facts of the claimant’s addiction and treatment. The Court therefore considered that the relevancy and sufficiency of these reasons were such that there was no reason, let alone a strong one, for it to substitute its own view for that of the final decision of the House of Lords.
Conclusion: no violation (six votes to one).
(b) Success fees: The order requiring the applicant to pay the success fees constituted interference with the applicant’s right to freedom of expression. That interference was prescribed by law and had the legitimate aim of ensuring the widest possible public access to legal services for civil litigation funded by the private sector and thus the protection of the rights of others.
The Court examined whether the recoverability of substantial success fees against unsuccessful defendants in civil actions was reasonable, proportionate and necessary to achieve that aim. It paid particular attention to the fact that the scheme had been the subject of detailed and lengthy domestic public consultations initiated by the Ministry of Justice since 2003. While there had been no legislative follow-up to those consultations, a review (the Jackson Review) published in 2010 had highlighted four fundamental flaws, especially in cases such as the applicant’s: the lack of any qualifying requirements for claimants to enter into a success-fee arrangement; the lack of any incentive on the part of claimants to control the costs they incurred; the “chilling” effect of the system which often drove opposing parties to settle early, despite good prospects of a successful defence; and, finally, the opportunity for lawyers to “cherry-pick” cases likely to succeed while avoiding claims with smaller chances of success (thus defeating the intended objective of extending access to justice to the broadest range of persons). Such pressure on defendants to settle defendable cases represented a risk to media reporting and thus to freedom of expression. The Ministry of Justice had acknowledged that recoverable success fees rendered the costs’ burden in civil litigation excessive and that the balance had swung too far in favour of claimants and against the interests of defendants, particularly in defamation and privacy cases. The flaws identified in the consultation process were reflected in the applicant’s case: the claimant was wealthy and thus not at risk of being excluded from access to justice for financial reasons, her lawyers had few success-fee clients and so were unlikely to act for impecunious claimants and, as the divided opinions of the domestic courts had shown, the applicant’s case had not been without merit. While the precise amount the applicant paid in respect of success fees could not be quantified with precision, the figure was substantial. Accordingly, the requirement that the applicant pay success fees to the claimant was disproportionate having regard to the legitimate aims sought to be achieved and exceeded even the broad margin of appreciation accorded to the States in such matters.
Conclusion: violation (unanimously).
Article 41: Reserved.
* A Conditional Fee Agreement (CFA) is an agreement between a client and a legal representative which provides for all or part of the legal representative’s fees to be payable only in specific circumstances (for example if the claim or, as in this case, the appeal) is successful. A court order for costs against a losing party may include an uplift in respect of success fees of up to 100% of the base costs.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy