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Coventry v Lawrence: Old Style Costs Regime Survives Human Rights Challenge - Robert Weir QC, Devereux Chambers

12/08/15. On 23 July 2014, in a judgment in Coventry v Lawrence [2014] UKSC 46 also covering the issue of a landlord’s liability for nuisance, Lord Neuberger endorsed the arguability of the defendant’s case that its liability to pay the successful party’s success fee and ATE premium breached the defendant’s Convention rights under article 6 (the right to a fair trial) and Article 1 of the First Protocol, known as A1P1 (the right to possessions).

This nuisance claim had been run under an old style CFA, that is one under Access to Justice Act 1999 under which success fees and ATE premium are recoverable from the losing party. Lord Neuberger did not hold back, describing this old style CFA regime as having 4 “unique and regrettable features”, not least that the unsuccessful defendant could be liable for 3 times base costs (by virtue of paying 100% uplift and an ATE premium at about the level of base costs). Lord Neuberger required that the issue, which clearly extended well beyond nuisance claims and into the arena of personal injury CFAs, be resolved at a further hearing. The Supreme Court permitted interventions from the Law Society and the Bar Council as well as from the Asbestos Victims Support Group Forum UK and others.

Having set the cat among the pigeons, there followed a period of uncertainty lasting 1 day less than 1 year during which time all of us barristers and solicitors, with run off work under old style CFAs and representing ongoing mesothelioma claimants (who still operate under the old style CFA regime), were left not knowing whether our agreements would be held viable and enforceable. In the event, the Supreme Court by a majority of 5:2 tempered their criticisms of the old regime and backed away from any finding of Convention non-compliance. So we are left (thankfully) where we thought we were prior to the earlier judgment in Coventry v Lawrence in July 2014: old style CFAs do not fall foul of defendant’s Convention rights and are fully enforceable. Those interested only in the result need read no further...

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