Human rights and costs recovery in publication and privacy proceedings
Human rights and costs recovery in publication and privacy proceedings

The following Dispute Resolution guidance note provides comprehensive and up to date legal information covering:

  • Human rights and costs recovery in publication and privacy proceedings
  • Recovery of CFA success fees and ATE insurance premiums in publication and privacy proceedings
  • Publication and privacy proceedings—additional liability recoverability in practice
  • Times, Miller and Frost—background to the appeals
  • What was at issue before the Supreme Court in the conjoined appeals (Times, Miller and Frost)
  • Whether domestic law should reflect the decision in MGN v UK
  • Does the recoverability of ATE premiums and CFA success fees engage a party's human rights?
  • What is the current position in terms of the recoverability of additional liabilities in the face of human rights arguments?

Recovery of CFA success fees and ATE insurance premiums in publication and privacy proceedings

 Following the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012), under conditional fee agreements (CFAs) entered into after April 2013 a CFA litigant has to meet the success fees out of any damages recovered. The recoverability of after-the-event (ATE) premiums was abolished at the same time. These provisions are subject to transitional arrangements.

There are transitional provisions preserving the recoverability of success fees and premiums (additional liabilities) in relation to CFAs and ATE insurance policies entered into prior to the coming into force of the relevant LASPO 2012 provisions (1 April 2013). Where funding arrangements were put in place before 1 April 2013, they will continue to be governed by the rules applicable at the time the arrangements were made even though the success fee and or premium will be claimed later.

Proceedings involving issues of privacy and defamation (publication and privacy proceedings) were exempt from the provisions until April 2019. From 6 April 2019, the provisions in LASPO 2012, s 44 apply to such cases and it is no longer be possible to recover success fees in proceedings involving CFAs where the proceedings commence on or after that date. This does not affect the recovery of the insurance premiums under