CFA SUCCESS FEES AND ATE RECOVERABILITY: DEFINITION OF “NEWS PUBLISHER”
I consider these issues as part of the general update during my spring courses on Personal Injury Small Claims, Portals and Fixed Costs – which can be booked here or see the Law Society Gazette.
the claimants brought an action against the second defendant photographic agency under the Protection from Harassment Act 1997 and ultimately the matter was settled by way of a Tomlin Order under which the second defendant was entitled to its costs.
In certain types of proceedings recoverability of additional liabilities, that is a success fee and an After-the-Event insurance premium, remain recoverable.
In the personal injury field recoverability remains in full in mesothelioma cases, and in clinical negligence cases the ATE premium in relation to the cost of liability/causation reports remains recoverable.
Outside the personal injury field recoverability remains in full in publication and privacy proceedings.
The prohibition of recoverability generally was brought about by sections 44 and 46 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and was brought into force on 1 April 2013 by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement number 5 and Saving Provision) Order 2013.
Article 4 specifically exempted publication and privacy proceedings and by article 1 of the order publication and privacy proceedings means proceedings for:
- malicious falsehood;
- breach of confidence involving publication to the general public;
- misuse of private information; or
- harassment, where the defendant is a news publisher.
“News publisher” means a person who publishes a newspaper, magazine or website containing news or information about, or comment on, current affairs.
The second defendant, a photographic agency, had entered into a Conditional Fee Agreement and paid an ATE premium and the issue here was whether those additional liabilities where recoverable from the claimant under the terms of the Tomlin order.
It was accepted that if the second defendant was a news publisher, then it was entitled to recover the additional liabilities.
The claimant’s case was that the second defendant had deliberately changed the focus of its website after the event in order to try and bring itself within the category of being a news publisher.
The court held that the second defendant was not in fact a news publisher and therefore not entitled to recover additional liabilities from the claimant.
The court said that to fall within the definition, the defendant must be a news publisher at the time of the acts complained of and that becoming a news publisher later would not be sufficient.
As at the time in question the second defendant had never published a newspaper or magazine and therefore could only be a news publisher if it had published a website either containing news or containing information about, or comment on, current affairs.
Neither “news”, nor “current affairs” are defined in the commencement order.
Section 42 of the Crime and Courts Act 2013 does define “news related material” as:
- news or information about current affairs;
- opinion about matters relating to the news or current affairs; or
- gossip about celebrities, other public figures or other persons in the news.
The fact that there is a separate category for gossip about celebrities etc. suggested, in the court’s opinion, that such gossip about celebrities is neither news nor current affairs, but a freestanding category.
The second defendant did publish a website at the time and thus the issue was whether it contained news or information about, or comment on, current affairs.
The court held that the photographs on the site may illustrate news or current affairs but are not, in themselves, news or comment on current affairs. Hyperlinks may lead to other websites which contain news or comment on current affairs but are not, in themselves news or comment on current affairs.
The court held that a YouTube channel is not of itself a website. Rather YouTube is the publisher of the website. The fact that the second defendant uploaded videos onto the YouTube website did not make it a publisher of the website, even though it was a publisher of the content that had been uploaded.
The court also said:
“It also seems to me that stories about the comings and goings of celebrities are neither “news” nor “comment on current affairs”. There is some content on the Second Defendant’s YouTube channel which could properly be described as news or current affairs (that listed in paragraph 26 of Mr Double’s witness statement) but the preponderance of the videos listed and referred to in the evidence can fairly be described as “celebrity tittle-tattle”. The substance of the Second Defendant’s YouTube channel is not news or current affairs, it is gossip about celebrities.”
Consequently the court found that the second defendant was not, at the time, a news publisher and therefore could not recover additional liabilities.