Matthew Williams answers the following question: What is the ECHR challenge on ATE premiums and success fees all about?

1. Article 6 and the right to a ‘fair trial’
Coventry & Ors v Lawrence &
Anor [2014] UKSC (Coventry)
is a significant case, not only on
development of the law of private
nuisance, but also given the issue it has
raised on recoverable ATE premiums
(Premiums) and CFA success fees
(SF) under the costs recovery regime
introduced by UK legislation and
subordinate legislation.
The Supreme Court (SC) upheld a private nuisance
claim against Defendants (D), operators of speedway
and motocross events at a stadium and race track. As
a result, D would have been liable to pay 60% of the
Claimants’ (C’s) costs, including the Premium and the SF.
D contended a requirement to pay those elements would
amount to an infringement of D’s rights to a fair trial under
article 6 of the European Convention on Human Rights
(Convention), on the basis;
• section 6 of the Human Rights Act 1998, requires the
court as a public body to exercise its discretion when
awarding costs in accordance with the Convention, save
where otherwise required by primary legislation, and that
secondary legislation (CPR and Practice Directions) must
be dis-applied where it requires otherwise, and
• article 6 would be infringed if the court required D to
pay 60% of the Premium and SF.
One authority relied on by D arose from a successful
claim by Naomi Campbell against MGN Limited, publisher
of the ‘Mirror’. MGN argued a requirement that if it were
to pay, the SF would be incompatible with Convention
article 10 as being a disproportionate interference with
freedom of expression. In its decision in 1995, the House
of Lords did not agree. However, when the point came
before the European Court of Human Rights (ECtHR)
in MGN Limited v United Kingdom (2011) 53 EHRR 5, it
found unanimously that article 10 had been violated. It
commented on the findings of the Jackson Review and,
referred to what it saw as ‘deep flaws’ in the system and
the provisions of the CPR.
Lord Neuberger and a majority of the SC in Coventry
considered the ECtHR comments provided some support
for Ds argument, and the hearing on the issue was
adjourned to allow representations from the Government.
The outcome may potentially be of relevance, not only to
the Government, and the parties in Coventry, but to those
with current policies/agreements where recoverability
continues to apply, to their opponents, and to those who
have paid these elements in the past. There could be
‘knock on’ effects and the ‘fair trial’ point will no doubt
be argued from each side of the ‘divide’. This is one to
watch… [446].
Matthew Williams, Head of AmTrust Law.
If you have any further questions regarding this or would
like to discuss further with AmTrust Law please visit our
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What is the ECHR challenge
on ATE premiums and
success fees all about?
Opportunity Favours the
Brave
The economic position remains
positive for legal firms and the
majority of solicitors I meet tell me
that they are busy, working long
hours and their firms are doing well.
Notwithstanding this, there appears
to be a strong undercurrent of opinion
suggesting that the legal sector
remains volatile. Consolidation and an
over lawyered market continues to grab headlines and we
are all anticipating the next significant legal firm failure.
I am not a great one for crystal ball gazing and predicting
the future is far beyond my skill set but I am continually
encouraged by the legal firms I meet who are embracing
change and developing opportunity. I met one such firm
recently, who have, from a standing start, grown revenue
to £3m, provided employment for 40 soles, acquired a
freehold premises and have a plan to grow revenue to £6m
within three years. That’s an impressive performance for any
business, let alone one that operates in a challenged and
overcrowded sector. If you are suspecting that the business
is carrying high levels of debt, then think again - it’s not.
So what do the partners in this firm do that partners in
other firms don’t do? They focus on two areas - business
development and service.
Business development activity is a critical and core
component of their day to day activity. For this firm every
client interaction is an opportunity to identify a potential
new client and they are brave enough to ask for referrals
and introductions time and time again.
Of course, clients will not act as your ambassador unless
the service they receive is outstanding and the firm
focuses on that as a continual area of improvement. Late
hours, weekend opening, digital updates and direct phone
numbers are only a few ways in which the firm looks to
deliver outstanding service. There is nothing new in this
type of approach to client service but this firm executes
it effectively and client satisfaction ranks above all other
business objectives.
I see enough examples, of which this is only one, to suggest
that those firms who are truly brave enough to employ a
business development strategy and put client satisfaction at
the heart of their business have a positive and bright future.
Steve Arundale, Commercial Head of Professional Services
& Financial Institutions, Sectors & Specialist Business, Royal
Bank of Scotland/NatWest, Commercial & Private Banking.
ML // October 2014
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