The Supreme Court recently considered whether the system for the recovery of costs in civil litigation under the Access to Justice Act 1999 (“AJA”) is compatible with the European Convention on Human Rights (“the Convention”).
The underlying proceedings related to a claim in nuisance by the owners of a bungalow (the Appellants) against the operators of a nearby speedway track (the Respondents). The Appellants had agreed with their lawyers to act under a CFA. After an 11 day trial, HHJ Seymour QC found in favour of the Appellants. He ordered an injunction, awarded damages of £20,750 and ordered the Respondents to pay 60% of the Appellants’ costs. 60% of the (i) base costs, (ii) success fee and (iii) ATE insurance premium amounted to (i) £184,585, (ii) £129,004 and (iii) £183,000.
The Respondents challenged their liability to pay the success fee and ATE premium on the basis that this would infringe their rights under article 6 and / or article 1 of the first protocol of the Convention.
In the previous judgment in this case, Lord Neuberger had identified four features of the AJA regime, which overlapped to some extent with the four flaws of that regime identified by the ECHR in MGN v UK, which held that the AJA scheme was incompatible with article 10 of the Convention. Chief amongst these flaws were the “blackmail” or “chilling” effect of the regime which drove parties to settle early despite good prospects of a defence.
However, the issue in this case was not whether the AJA regime has flaws but whether it is a proportionate way of achieving the legitimate aim it pursued (to provide the widest public access to legal services for civil litigation funded by the private sector). It was held inter alia that the scheme is compatible with the Convention because it is a general measure which was (i) justified by the need to widen access to justice to litigants following the withdrawal of legal aid; (ii) made following wide consultation and (iii) fell within the wide area of discretionary judgment of the legislature and rule-makers to make. Whilst there cannot be any perfect solution the scheme as a whole was a rational and coherent scheme for providing access to justice and in the circumstances this led to the conclusion that the scheme was not incompatible with article 6 or A1P1 of the Convention.
Matthew Winn-Smith / 1st Aug 2015
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