Campbell’s costs and journalists’ sources

Naomi Campbell“Even the judges know who Naomi Campbell is”. At least Baroness Hale of Richmond does, since this is how she began her speech in Campbell v MGN [2004] AC 457, [2004] UKHL 22 (6 May 2004), in which she was a member of the majority which held that aspects of the Mirror‘s coverage of Naomi Campbell’s fight against narcotics addiction – in particular, the publication of photographs which did not advance the public interest in the story – infringed her privacy. Today, in MGN v UK 39401/04 (18 January 2011) the Fourth Section of the European Court of Human Rights (ECHR) held that this holding did not infringe Article 10 of the European Convention on Human Rights. Campbell was awarded £3,500 for that invasion of privacy. For the appeal to the House of Lords, she had retained solicitors and counsel pursuant to a conditional fee agreement (“CFA”) which provided that if the appeal succeeded, solicitors and counsel should be entitled to success fees of 95% and 100% respectively. For the appeal to the House of Lords, legal fees were £288,468; and the success fees were £279,981.35; so the total fees were £594,470. Adding in the fees at first instance and before the Court of Appeal, Campbell’s costs amounted to a total of £1,086,295.47. In Campbell v MGN [2005] UKHL 61 (20 October 2005), the House of Lords approved an award of costs to her in this amount. In today’s judgment, (which I have noted here), the ECHR held that addition of the success fee infringed Article 10. As the Guardian‘s headline put it: the European court deals [a] blow to no win, no fee deals in Naomi Campbell case.

This is a very signifcant decision for several reasons. First, the ECHR held that the principle of the 100% CFA infringed Article 10. Although the CFA is on the way to being superceded in the UK in any event (see the recommendations of Lord Justice Jackson in Review of Civil Litigation Costs: Final Report (pdf (2010) chapter 2); the current consultation process about the review; and the House of Commons Select Committee on Culture, Media and Sport Committee – Second Report on Press standards, privacy and libel paras 286 et seq), this holding ensures that they won’t come back at least in freedom of expression cases, and prevents their appearance in Ireland too. Second, it is signficant that the ECHR distinguished between the infringement and the remedy. Whilst it is clear that the Mirror‘s publication of photographs of Campbell outside a Narcotics Anonymous meeting invaded Campbell’s Article 8 right to privacy, the addition of the success fee was a disproportionate infringment on the Mirror‘s Article 10 right to freedom of expression. The Court stressed that the most careful scrutiny is called for when measures taken at national law are capable of discouraging the participation of the press in debates over matters of legitimate public concern (see para 201). The ECHR was particularly concerned that the Jackson Review and the Select Committee had highlighted significant flaws with CFAs. In particular, the “ransom” or “blackmail” or “chilling” effect of the costs burden on the opposing parties was so excessive that often a party was driven to settle early despite good prospects of a successful defence. The ECHR therefore held that the depth and nature of the flaws in the system were such that the impugned exceeded even the broad margin of appreciation to be accorded to the State in respect of general measures pursuing social and economic interests (see para 217). The Court concluded:

219. In such circumstances, the Court considers that the requirement that the applicant pay success fees to the claimant was disproportionate having regard to the legitimate aims sought to be achieved and exceeded even the broad margin of appreciation accorded to the Government in such matters.

220. Accordingly, the Court finds that there has been a violation of Article 10 of the Convention.

Third, this holding could have significant implications for the case being taken to ECHR by the Irish Times against the costs order made against them in In Mahon Tribunal v Keena (No 2) [2009] IESC 78 (26 November 2009) (also here), notwithstanding that they had won the substantive issue in Mahon Tribunal v Keena (No 1) [2009] 2 ILRM 373, [2009] IESC 64 (31 July 2009). MGN v UK demonstrates that costs orders can be reviewed by the ECHR and that disproportionate costs orders can be found to infringe the Convention.

The Irish Times is also likely to rely on the decision of the ECHR in Sanoma Uitgevers BV v The Netherlands Application no 38224/03 (14 September 2010) (on which I have already commented in an earlier post; see also BBC | ECHR blog | Guardian | Inforrm’s Blog | Index on Censorship Free Speech Blog | Irish Times | JuraBlogs | New York Times | Open Society Initative | Strasbourg Observers | UK Human Rights blog). Here, the ECHR affirmed that Article 10 requires that any order against journalists to name sources or produce notes, recordings, etc, must be attended by substantial legal procedural safeguards. The simple question which arises is whether the costs order in Mahon v Keena (No 2) was attended by sufficient substantial procedural safeguards.

Finally, for the sake of completeness, I should note that the Supreme Court of Canada has handed down two decisions on journalist source privilege since the last time I discussed this issue on this blog. In R v National Post [2010] 1 SCR 477, 2010 SCC 16 (CanLII) (7 May 2010) and Globe and Mail v Canada [2010] 2 SCR 592, 2010 SCC 41 (CanLII) (22 October 2010) that there was no basis in the Charter’s protections of freedom of expression for recognizing a constitutional journalist source privilege. However, there was a basis at private law privilege to recognize a framework to determine the existence of a source privilege on a case-by-case basis. Under the approach now in favour in Canada, to require a journalist to answer questions in a judicial proceeding that may disclose the identity of a confidential source, the requesting party must demonstrate first that the questions are relevant. If the questions are relevant, the court must then consider four factors:

  1. the relationship must originate in a confidence that the source’s identity will not be disclosed;
  2. anonymity must be essential to the relationship in which the communication arises;
  3. the relationship must be one that should be sedulously fostered in the public interest; and
  4. the public interest served by protecting the identity of the informant must outweigh the public interest in getting at the truth.

These factors are derived from those proposed by JH Wigmore (see, eg A Treatise on the Anglo?American System of Evidence in Trials at Common Law (2nd ed, Little, Brown and Co, Boston, 1923) vol 5, § 2285 et seq; rev ed (revised by John T McNaughton, Little, Brown and Co, Boston, 1961) vol 8, § 2285 et seq) which have been followed in Ireland (Cook v Carroll [1945] IR 515 (Gavan Duffy J); ER v JR [1981] ILRM 125 (Carroll J)) though not in the context of journalists (In re Kevin O’Kelly (1974) 108 ILR 97 (CCA) (30 July 1974) (doc | pdf)). At the crucial fourth Wigmore factor, the Supreme Court of Canada stressed that courts determining whether the privilege might be recognized in an individual case must balance the importance of disclosure to the administration of justice, against the public interest in maintaining journalist?source confidentiality. This is a privilege that attaches to the source at common law. By contrast, the approach of the ECHR, as followed by the Irish Supreme Court in Mahon v Keena (No 1), is to recognise a privilege attaching to the journalist by virtue of Article 10 of the Convention. As a consequence, R v National Post and Globe and Mail v Canada have little to say to Mahon v Keena. On the other hand, in that case, the Supreme Court relied exclusively on the impact of the Convention, and discussed neither the Constitution nor the common law. Whilst the Convention will plainly have something to say to the question of whether Irish constitutional protections of freedom of expression ought to generate a privilege inhering in journalists, the Canadian cases may well have to something to say to the question of whether Irish common law ought to generate a privilege inhering in sources.

In the meantime, the next battle on the general question of journalist source privilege at Irish law is likely to be the application being taken by the Irish Times to the ECHR. And in that battle, today’s decision in MGN v UK has handed the Irish Times a signficant weapon.