Another disappointing sequel?

The Supreme Court’s dismissal of an attack on rules about legal costs enacted back in 1999 was hardly likely to generate as much as coverage as, say, the publication early this month of Harper Lee’s follow-up to her 1960 novel To Kill a Mockingbird. As sequels go, some may feel that the Court’s further decision in Coventry v Lawrence fails to live up to the promise of its 2014 judgment, which had raised the possibility of the costs regime in the Access to Justice Act 1999 being judicially struck down as being incompatible with the Human Rights Act 1998. On 22 July, however, that prospect was dismissed by a majority of five to two.

The original claim in Coventry was framed in nuisance suffered by a homeowner living half a mile from a speedway track in Suffolk. It first ended up before the Supreme Court on the merits of the nuisance claim, with a judgment given in February 2014. The SC then revisited the case to examine the costs position, giving its second judgment in July 2014.

A third hearing, before a seven-member Court, was then required to deal with human rights arguments about costs. The core submission was that the base costs plus the recoverable additional costs liabilities (success fee and insurance premium) allowed for by the Access to Justice Act 1999 were so high as to infringe the defendant’s human rights, specifically to a fair trial and to peaceful enjoyment of possessions.

In its third judgment on 22 July 2015, the Court dismissed this submission by a majority of 5:2. The 1999 Act may have had flaws, but the key issue was whether it was a proportionate means of achieving the legitimate aims of the State. For the majority, it was. The 1999 Act’s scheme “as a whole was a rational and coherent scheme for providing access to justice to those to whom it would probably otherwise have been denied.” Furthermore, “legal certainty, consistency and the legitimate expectations which have so been generated all militate in favour of the Supreme Court upholding the system.”

The result of the majority’s decision is that 1999 Act stands and would appear to be capable of no further challenge before the UK courts. Thankfully, there should be no fourth episode of Coventry v Lawrence – unless the unsuccessful respondent grasps at Lord Mance’s remark that the Act “can of course still be challenged as against the United Kingdom in proceedings in Strasbourg”. But after three fully argued hearings before the UK’s highest court in a damages claim valued at barely over £20,000, surely any further proceedings would come dangerously close to the sort of case that the narrator in Charles Dickens’ Bleak House referred to as “an infernal country-dance of costs and fees and nonsense”?

In any event, the scheme in the 1999 Act has been overturned to a large extent by Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which implemented Lord Justice Jackson’s recommendation that the recoverability of additional costs liabilities should end. Given that those parts of the 1999 Act have been repealed by LASPO, what, therefore, is the significance of the latest decision of the Court?

The answer is that it draws a final line under challenges to the 1999 Act regime and in so doing does provide the ‘welcome legal clarification’ that is all too often attributed to ‘landmark’ cases such as this. The status quo reigns. What Lords Neuberger and Dyson identified as “a serious impact on many thousands of pre-April 2013 cases which are in run-off, as well as claims to which the pre-Jackson costs rules continue to apply, such as mesothelioma, insolvency and publication and privacy cases” has been avoided.

The conclusion of the case should therefore be regarded as a pragmatic and common sense outcome, despite it not being a unanimous decision. It would certainly appear that any further debate on the matter is largely a theoretical prospect only (whether based on either Lord Mance’s remark about Strasbourg, above, or on the views of the minority of the Court, for whom the effect of the 1999 Act was “to impose liabilities far beyond the bounds of what was reasonable or proportionate”).

About the Author

akAlistair Kinley is BLM’s Director of Policy & Government Affairs.

Alistair is responsible for BLM’s engagement with government departments and regulators on policy and public affairs issues and consultations affecting the firm and its customers. He coordinated BLM’s market-facing activities in connection with the Insurance Act 2015 and the consultations which preceded its publication and introduction in Parliament.

He is a member of the Civil Justice Council (CJC), a regular speaker and experienced commentator on legal and procedural reforms and was a contributing editor to the Law Society’s Litigation Funding Handbook (September 2014).

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