Page 6 - Inside Law Magazine Issue 8 - Autumn 2014
P. 6

The Impending Decision in
   Coventry v Lawrence and
   its ECHR Implications.

   Coventry and others (Respondents) v Lawrence and another (Appellants) (No 2) [2014] UKSC 46, [2014] UKSC 13
   Court of Appeal: [2012] EWCA Civ 26
   High Court: [2011] EWHC 360 (QB)

B ackground to the Case: The                      Protocol of the ECHR allows for the right
         Appellants, two homeown-                 to the peaceful enjoyment of one’s pos-
         ers, brought an action in                sessions. Questions too are being raised
nuisance against the occupiers of                 as to whether the award for costs is in-
a stadium used largely for speed-                 compatible with the ECHR on this premise.
way racing, amongst other forms                   The Rationale behind the Order for Costs:
of motor racing. The Ap pellants’                 Let it be clear that the Appellants’ condi-
house, known as Fenland, was                      tional fee agreement (CFA) was entered
located some 850 yards from                       into before 1st April 2013; before the in-
the stadium and their action was                  famous reforms to the Civil Procedure
founded upon the noise pollution                  Rules adopted following recommenda-
from the use of that stadium. The                 tions per Sir Rupert Jackson. As with all
effect of the decision of the Su-                 CFAs entered into before this date, the
preme Court was to restore the                    Access to Justice Act 1999 allowed for
trial Judge’s order, that the oc-                 the recovery of the aforementioned addi-
cupiers of the stadium, but not its               tional liabilities from an unsuccessful party.
landlords, were liable in nuisance.               In spite of this the Supreme Court con-
                                                  ceded that, the Respondents, in their be-
 The Judge’s order included inter alia, an        ing liable for £640,000 of the Appellants’
 injunction against the Respondents to            costs, is ‘very disturbing’. Digressing for a
 reduce the level of noise emitted from the       moment from this issue, the Court added;
 stadium and a direction that the Respond-        ‘The fact that it can cost two citizens
 ents pay 60% of the Appellants’ costs. This      £400,000 in legal fees and disbursements
 order also required that the Respondents         to establish and enforce their right to live
 pay 60% of the Appellants’ 100% suc-             in peace in their home is on any view
 cess fee and 60% of their ATE premium.           highly regrettable’ – obviously a shaking
 The Appellants’ base costs amount-               of the judicial head at the prima facie
 ed to £398,000, the success fee was              disproportionality of these costs. Indeed,
 approximately £319,000, and the                  the value of the Appellants’ home is only
 ATE premium was around £350,000.                 circa £300,000, not to mention the value
 This brings the Appellants’ total costs to       of the nuisance to be deducted from that
 £1,067,000, with the Respondents’ ac-            value (£74,000). Yes, the Respondents
 countable to pay some £640,000 (i.e. 60%).       were unsuccessful in the Supreme Court,
 As regards costs, the question is now put;       but there is clearly an argument to suggest
 does such an order for costs against the         that their case had merit: the fact that they
 Respondents infringe the right to a fair trial,  were successful in the Court of Appeal.
 enshrined within Article 6 of the European       Was it not a primary objective of Lord
 Convention on Human Rights (ECHR)? In            Woolfe’s Access to Justice (1996) re-
 addition to this clause, Article 1 of the First  port to achieve a better relationship be-
                                                  tween the costs and benefits of litigation?

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