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The law of unintended consequence or the ECHR and justice

Coventry and others v Lawrence and another (No 2) 2014 UKSC 46 (Article 6 of the ECHR, the right to a fair trial).


The case of Coventry has caused a bit of a stir and alarm, probably only momentarily!

With the Supreme Court looking at the recoverability of CFAs and ATE premiums, what does it mean for us? Post Jackson uplifts and ATE premiums are not recoverable from defendants anyway, but what if the door is opened to look again at pre April 2013 cases still in the pipeline and those that have gone before. This is exactly what some commentators are flagging as a possibility in the still to be concluded Coventry case.

Changing the rules “after the event” is worrying as a principle and what about those claimants who in good faith took out an ATE on the basis of recoverable premiums? I can only foresee previously viable claims having to be discontinued, solicitors writing off WIP, overall this is yet another blow to the less well-off trying to get justice. In my view this is totally at odds with ‘Anglo Saxon’ justice for all.

For ATE claimants, solicitors and insurers, the worry I have is that defendants will use this opportunity to their advantage and delay cost settlements. Yes, defendants will say to claimants that cost settlement will be ‘pending the outcome of proceedings’ (to those defendant solicitors reading this, we understand even if we do not appreciate).

Notwithstanding the above, the Coventry ruling does not allow defendants to refuse to pay success fees and/or ATE premiums in the interim, clearly stating that defendants are still liable to pay claimants success fees and ATE premiums under the Access to Justice Act 1999. There is anecdotal evidence that the SCCO has rejected a number of applications for a stay/adjournment in success fee/ATE premium costs cases until the Supreme Court makes its mind up, the Court having delayed any judgement until the Government has had a chance to respond, (will we see the Attorney General once again personally representing the Government?).

The big problem, potentially, is for the Government. Under Article 6 (the right to a fair trial) of the ECHR, if the Coventry argument is successful, the potential for defendants’ compensation claims, could amount to tens of billions of pounds.

If the decision is ultimately in favour of Coventry the consequences for pre April 2013 CFAs and ATE insurance policies is that CFA uplift and ATE insurance premiums would no longer be recoverable from defendants and strictly would be paid from any recovery or other assets if any. To the lawyers reading this, would the Government have to compensate any losing party who has been ordered to pay CFA uplift or an ATE insurance premium, or indeed costs going back to 1999 and the Woolf Reforms? The government and the judiciary will not want this can of worms to be opened and it is likely that a ‘pragmatic’ decision will be made. Nevertheless, it is a fascinating situation that feeds into the current national focus and debate on who makes the laws of the Country, the national government or an intra-national organisation.