This article explores how the Supreme Court takes decisions in relation to ECHR


Permission to "leapfrog" appeal has been granted to newspapers in two "publication" cases which will go straight from the High Court to the Supreme Court on the question of whether the winning claimants' right to recover "additional liabilities" (success fees payable under conditional fee agreements with their lawyers, and after the event insurance premiums) infringe the newspaper defendants' Article 10 ECHR rights to freedom of expression. (Miller v Associated Newspapers Ltd ; Frost &Ors v MGN). 

Although no longer recoverable in most types of claim, additional liabilities arising from publication claims (privacy and defamation) were (and still are) exempted from the UK legislation that in April 2013 abolished their recoverability from a losing opponent. However, the European Court of Human Rights in MGN v UK in 2011 held that the UK is in breach of its treaty obligations by failing to prevent recovery of additional liabilities in such cases, because having to pay them breached the newspapers' Article 10 ECHR rights. There has been no government action since MGN v UK to deal with the position. Nor has the House of Lords (now the Supreme Court) had to rule on a case in which Article 10 is in issue since the 2011 ECHR decision. In 2015 the Supreme Court in Coventry v Lawrence held that the old, pre April 2013, legislative scheme (which then permitted recovery of additional liabilities in a much wider range of cases) did not infringe ECHR. But Coventry was not a case that involved freedom of expression. It will therefore be very interesting to see what the Supreme Court make of the UK's continuing default in relation to its ECHR treaty obligations.

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Kate Menin

Kate Menin

Professional Support Lawyer, Dispute Resolution
London

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