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ECHR upholds Campbell, criticises success fees

By Steven | January 19, 2011

The European Court of Human rights has endorsed the House of Lords majority finding in the Naomi Campbell case that her privacy was breached by the publication of photographs of her outside a Narcotics Anonymous meeting – and that this was not a disproportionate interference with the paper’s freedom of expression. (There’s lots of language about the domestic courts being given a margin of appreciation to strike this balance, so I imagine the ECHR would also have upheld the decision if it had gone the other way).

But the Court found that the 100% success fee awarded by the courts to Campbell as part of the cost order was a disproportionate limitation on the paper’s freedom of speech. That is, if the plaintiff arranges with lawyers that if she loses there will be no fee payable but if she wins the lawyers receive double their normal fee, and if after the plaintiff wins the courts allow that fee-doubling “uplift” to be reflected in the costs award – as they have in the UK – this is too punitive of defendants. INFORRM suggests this will probably kill off conditional fee agreements.

I’m not aware of such agreements being in widespread use in NZ in the media law field (or any other), though they are no longer considered unlawful. Just to boggle your mind further, such conditional fee agreements are usually supplemented with “after the event” insurance, which means that the plaintiff is covered against the possibility of losing the case.

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