Coventry v Lawrence

The Supreme Court has handed down a significant judgment in a case involving an attack on the pre-Jackson system for recovery of costs in civil litigation in England and Wales.

The case, which is the subject of two previous judgments of the Supreme Court ([2014] AC 822 and [2015] AC 106), arose in the context of nuisance proceedings in which the (losing) Defendants contended that it would breach their rights under Article 6 ECHR and Article 1 of the First Protocol if they were liable to pay a sizeable CFA uplift and ATE premium following hearings at first instance, the Court of Appeal and the Supreme Court.

A majority of a seven-member panel of the Supreme Court rejected the Defendants’ arguments.  Lord Neuberger and Lord Dyson (with whom Lord Sumption and Lord Carnwath agreed) accepted the submissions of the Secretary of State and a number of other interveners (including the Bar Council and Law Society) that the pre-Jackson costs regime struck a fair balance between the interests of litigants who have CFA and ATE insurance and those who do not (§§58-85).

They considered there to be "a powerful argument" that the pre-Jackson regime was compatible with the ECHR "for the simple reason that it is a genuine measure which was (i) justified by the need to widen access to justice to litigants following the withdrawal of legal aid; (ii) made following wide consultation and (iii) fell within the wide area of discretionary judgment of the legislature and rule-makers to make" (§64), and that the potential unfairness of the scheme on unsuccessful litigants was mitigated by the fact that district judges and costs judges would perform the role of "watchdog" (§67). They acknowledged that there was "no perfect solution to the problem of how best to enhance access to justice following the withdrawal of legal aid for most civil cases", but considered that ultimately "[t]his was a policy choice that was made by Parliament" (§69). For these principal reasons, the regime was compatible with Article 6 ECHR and A1P1. 

The majority distinguished the conclusion reached by the European Court of Human Rights in MGN v United Kingdom (2011) 53 EHRR 195 as to the compliance of the pre-Jackson regime with the ECHR.

Lord Mance (with whom Lord Carnwath also agreed) rejected the Defendants’ arguments for similar reasons. Lord Clarke and Lady Hale dissented.

The full judgment can be read here: https://www.supremecourt.uk/cases/docs/uksc-2012-0076-judgment-2015.pdf

Tom Weisselberg QC and Jason Pobjoy acted for the Secretary of State for Justice

Kieron Beal QC acted for the Law Society