Additional Liabilities Recoverable – for now at least!

Mr Justice Mitting today gave an oral judgment in the first case to reach the High Court in which the recoverability of additional liabilities as against a news publisher was challenged. In Miller v Associated Newspapers Ltd the Defendant sought to argue that the EctHR decision in MGN v UK (2011) rendered the recovery of any success fee or any ATE premium unlawful as contrary to Article 10 ECHR. It argued that the House of Lords decision in Campbell v MGN (No.2) did not bind the Court either because it had not decided the point or because the Supreme Court decision in Coventry v Lawrence had implicitly endorsed the ECtHR approach over that of the House of Lords.

The Judge agreed with the Claimant that he was bound by the House of Lords decision and that the question of whether the decision in MGN v UK should be followed was for the Supreme Court alone to take.

The Judge did not consider that either Campbell or MGN v UK was authority on whether the ability to recover an ATE premium was contrary to Article 10. He considered that the issues with regard to CFA success fees and ATE premiums were different and he decided that allowing recoverable ATE premiums was not incompatible with Article 10.

Recognising the importance of the issue the Judge granted a certificate under s.12 Administration of Justice Act 1969 allowing the Defendant permission to seek permission to appeal directly from the Supreme Court.

William McCormick QC led for the Claimant, instructed by Razi Mireskandari and Martin Soames of Simons Muirhead & Burton.

5th February 2016