The only remaining question is the extent to which this judgment goes beyond publication cases. The Strasbourg Court has said that 100% uplift is chilling in defamation cases, and indeed the defamation problem is compound, involving, in some cases, evidence of astonishing complexity, and “luxury” parties – big media conglomerates versus celebrity claimants. But there is no particularly strong reason in principle why this ruling should be so limited. It is open to any unsuccessful litigant in a non-media case to make a case for transposition of this Article 10 solution/change by analogy; after all, the Jackson proposals – without which this aspect of the Campbell case may never have seen the light of day – apply to a very wide collection of cases.
So once it becomes generally accepted that it is unjust to submit media defendants to a costs regime which forces them to settle rather than defend their rights to free expression, it will follow as naturally as night follows day that non-media defendants who have other recognised interests to protect should not be obliged to pay up simply because they have no reasonable prospect of recovering their reasonable and proportionate costs if they manage to beat off an attack.
This is a superb post by Roaslind English about the impact on the UK’s costs regime of yesterday’s ECHR decision in MGN v UK 39401/04 (18 January 2011). There is a comprehensive round up of media coverage of the case on Inforrm’s blog. And Roy Greenslade has a characteristically clear-sighted analysis of the consequences:
In effect, the European Court – much-maligned by certain newspaper editors in the past – has pulled the rug from beneath lawyers who have made a habit of using CFAs. It means that claimants in privacy and libel cases will no longer be allowed to recover a success fee from defendants. That is a major plus for newspapers worried about the chilling effect of rising legal costs, but not only for them. … I believe the judgment is very wise. But it should mean a reform of the CFA system, not its elimination. We must not prevent people who genuinely cannot afford to sue the chance to take their grievances to court. It is, as ever, a matter of balancing rights.