Another nail in the coffin for success fees
January 19, 2011
Posted by:Stephen Hill
The European Court of Human Rights has decided that Naomi Campbell’s right to a success fee in her defamation claim against the Daily Mirror is a “violation of freedom of expression”; one of the rights protected by the Human Rights Act 1998. The ECHR accepts appeals from decisions in national courts when it is necessary to interpret the meaning and extent of rights that derive from the European Convention on Human Rights.
The vast majority of ordinary litigants in civil cases rely on much maligned “no win no fee agreements” to access justice. The problem is the costs uplift or “success fee” that defendants must pay the claimant’s lawyers if the case is successful. The ECHR’s view is that the requirement to pay the success fee in defamation cases is so onerous that it breaches the defendant’s human rights: The judgment said that the "depth and nature of the flaws" in the current system amount to a breach of the Convention.
The court has ruled that it is the system that is wrong and therefore the Mirror in this case will have to look to the government for compensation.
The judgment provides support from an unlikely quarter for the coalition government’s plans for funding in civil litigation; some fear that the forthcoming legislation is likely to restrict access to justice for those who need it.