Trinity Mirror may go to the Supreme Court to challenge costs of £242,000 charged by lawyers in a privacy case where the claimant was awarded £20,000.
Mirror Group Newspapers (MGN) declared in a submission to the senior High Court costs judge that it intended to go to the Supreme Court over the costs in a case involving a primary school teacher who had a three-year relationship with a premiership footballer.
The claimant, referred to only as BNM, launched legal action against MGN after discovering early in 2011 that the Sunday People newspaper had found out about her relationship with the footballer after obtaining access to her mobile phone, which she had lost.
BNM went to law firm Atkins Thomson, which agreed to act on a Conditional Fee Agreement, and then entered into CFA agreements with two counsel, David Sherborne and William Bennett, and took out an ATE insurance policy providing an indemnity of up to £165,000 in case they lost.
The case eventually ended with a consent order in July 2014, with MGN paying the teacher damages of £20,000, and undertaking not to use or disclose her confidential information and to pay her costs of the action.
The costs claimed on behalf of BNM amounted to £241,817, and included a
60 per cent success fee for the solicitors, success fees of 75 per cent for the two counsel, and an insurance premium of £58,000, with tax of £3,480.
MGN challenged the costs before High Court Master Andrew Gordon-Saker, the Senior Costs Judge, with its counsel, Gavin Millar QC, arguing that the costs claimed by BNM could not include either the success fees for the lawyers or the ATE premium.
"If it were to make any such costs order, the court would be acting incompatibly with MGN's right to freedom of expression as a publisher under Article 10 of the European Convention on Human Rights," Millar argued.
Such an order would also mean that the court would be acting unlawfully within the meaning of section 6 of the Human Rights Act 1998, which makes it unlawful for a public authority – which includes a court or tribunal – to act in a manner incompatible with Convention rights.
Master Gordon-Saker said that MGN had said in its points of dispute that its primary contention – which it would seek to advance to the Supreme Court – was that the recovery of additional liabilities with the costs was unlawful, and would place the UK in breach of its obligations under the European Convention on Human Rights and the court itself in breach of its own obligations under the Human Rights Act.
The case fell within the definition of publication and privacy proceedings, as provided by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 5 and Saving Provision) Order 2013, Article 1(2), said the judge, adding: "Accordingly, subject to the Article 10 point, a costs order in the present case may make provision for the payment of a success fee."
Under section 29 of the Access to Justice Act 1999, the costs payable to the claimant could include the ATE premium – and while this provision was repealed by section 46 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the change had not yet been brought into force in respect of publication and privacy proceedings.
Master Gordon-Saker allowed the success fees at 33 per cent and the after the event insurance premium as claimed.
He added: "If, as the points of dispute predict, this issue is considered further, I would mention that in April 2013, at the request of the Government, a working group of the Civil Justice Council suggested a scheme which could replace the regime of recoverable additional liabilities in publication and privacy proceedings. As yet the Government would appear not to have acted on that recommendation."