Human Rights Committee: Access to justice in defamation cases: Is After-The-Event insurance sufficient?

The Joint Committee on Human Rights has published correspondence with Lord Chancellor and Secretary of State for Justice David Gauke about access to justice in privacy and defamation cases.

Following the Government’s recent efforts to address the ECHR judgment in MGN v UK, the Committee raised some concerns about whether reliance on After the Event Insurance (ATE) strikes the right balance between the right to freedom of expression of the press, the right to privacy of individuals, and access to justice. ATE insurance covers the risk of having to pay the other party’s legal costs in an unsuccessful case.

Access to justice needs be both effective and affordable. The Committee noted that it is not clear how individuals whose right to a private life has been violated can access justice if they are unable to afford or obtain ATE insurance. This could effectively prevent access to justice in such cases and therefore prevent access to an effective remedy for a breach of an individual’s Convention rights.

The Committee requested further information about the Government’s plans, including: monitoring the market in ATE insurance; number of cases funded by ATE insurance; incentives against defendants weaponizing costs; and measures to protect an individual’s right to private life before that right is breached by a publication; whether the Government has any plans to vary the current system.

The Secretary of State’s response contends because premiums are structured in a way that reflects the risk (and thus the merits) of a case, the current arrangements ensure that good cases can be taken forward while weak cases are likely to be filtered out. However, the response says that because the insurance market is independent of Government, the data available to the Government is limited. This therefore raises concerns that the Government does not know whether ATE insurance will be available in all cases where an individual’s Convention rights have been breached. The Committee is concerned to ensure that individuals can enforce their human rights, which was the subject of our recent Report Enforcing Human Rights.

While the MoJ says that if any practicing solicitors raise any concerns about the availability of ATE insurance for these cases it would be happy to look into them, it appears to have no plans to monitor the situation.