ECHR, art 10 rights not infringed by success fees and ATE premiums in costs orders


Re: Times Newspapers Ltd v Flood; & or cases [2017] UKSC 33

On appeal from: [2014] EWCA Civ 1574, [2016] EWHC 397 (QB), [2016] EWHC 855 (Ch)

Three appeals involving a challenge to an order for costs made by the High Court against a newspaper after a  trial (two for libel, one for misuse of private information). The newspapers argued that their ECHR, art 10 rights were infringed by orders to reimburse the success fees and ATE premiums incurred by the claimants, under the Access to Justice Act 1999 regime. Held, unanimously dismissing the appeals: inter alia, the claimants had incurred financial obligations in reliance on the 1999 Act and had a legitimate expectation that it would not be retrospectively repealed or invalidated – to do so would infringe their art 1 to Protocol 1 rights. Even if upholding the costs orders would infringe art 10 rights, the fundamental principle that citizens were entitled to assume that the law would not change retroactively would be directly infringed by the order sought. Freedom of expression was less centrally engaged in this case: the infringement of the newspapers’ rights was based on an indirect chilling effect.

Hugh Tomlinson QC, Gavin Millar QC and Ben Silverstone were involved in this case.