A large number of plaintiffs brought actions against the defendants, three tobacco companies, claiming damages for personal injuries by reason of cancer which they claimed was caused by smoking cigarettes manufactured by the defendants. A hearing for directions was heard ‘in chambers’ and an issue arose as to what the parties could say about that hearing. The judge had not delivered a judgment, and had said that a copy of his directions could be released to the public, but that the parties and their advisers were not to make any comment to the media in relation to the litigation without the leave of the court.
Held: Lawyers conducting cases under conditional fee agreements bear no different or greater risk of facing personal costs orders for that reason. If the statutory requirements are complied with the CFA will be valid and enforceable by the legal advisers against a client. If it materially departs from the legislative requirements, it will not be enforceable and will not be a CFA which is protected. It was wrong to impose order banning publicity for that reason. The issue arose (but was not fully argued) as to the disclosabiity of Conditional Fee Agreements. The court said that absent exceptional circumstances, unless and until the other partyapplies to make the legal advisers personally liable for costs, the existence or the terms of a CFA are of no relevance to the issues and the proceedings. They are therefore on that ground not required to be disclosed.
Proceedings in chambers are described as being conducted ‘in private’ and Lord Woolf described the principles referable to proceedings in chambers as including: ‘To disclose what occurs in chambers does not constitute a breach of confidence or amount to contempt so long as any comment which is made does not substantially prejudice the administration of justice.’
Lord Woolf said: ‘What has happened since the order has been made strongly suggests that it would have been preferable to have given all the directions which were made on 10 October in open court, together with a judgment explaining why they were made, so that it would not have been necessary for the legal advisers to communicate with the media in order to explain what had happened.’
Judges:
Lord Woolf MR, Aldous, Chadwick LJJ
Citations:
Times 13-Feb-1998, Gazette 16-Apr-1998, [1998] EWCA Civ 224, [1998] 1 WLR 1056, [1998] 2 All ER 673, [1998] 1 Costs LR 14
Links:
Statutes:
Conditional Fee Agreements Regulations 1995 (1995 N0 1675), Courts and Legal Services Act 1990
Jurisdiction:
England and Wales
Citing:
Cited – Regina v Lord Chancellor’s Department ex parte Child Poverty Action Group Admn 6-Feb-1998
The claimant sought an order with regard to its costs in an anticipated application to the court. The application was refused. Requests in a public interest action for an advance order for costs could only be awarded in very exceptional . .
Cited by:
Cited – Allan v Clibbery (1) CA 30-Jan-2002
Save in cases involving children and ancillary and other situations requiring it, cases in the family division were not inherently private. The appellant failed to obtain an order that details of an action under the section should not be disclosed . .
Cited – Hollins v Russell etc CA 22-May-2003
Six appeals concerned a number of aspects of the new Conditional Fee Agreement.
Held: It should be normal for a CFA, redacted as necessary, to be disclosed for costs proceedings where a success fee is claimed. If a party seeks to rely on the . .
Cited – Corner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .
Cited – HM Attorney General v British Broadcasting Corporation CA 12-Mar-2007
The police were conducting a major investigation into suspected awards of state honours in return for cash and associated events. The AG had obtained an order restraining the defendant and other media from reporting allegations that one person was . .
Cited – Coward v Harraden QBD 2-Dec-2011
Parties had fought each other in wide ranging litigation. The claimant found covert surveillance devices in his home, and discovered evidence that the defendant may have information as to who had placed them. Earlier orders had been made for the . .
Cited – ABC Ltd v Y ChD 6-Dec-2010
There had been proceedings as to the misuse of confidential information. X, a non-party, now sought disclosure of papers used in that case. The case had been settled by means of a Tomlin Schedule, and that, subject to further order, non-parties . .
Cited – Storer v British Gas plc CA 25-Feb-2000
An industrial tribunal hearing conducted behind the locked doors of the chairman’s office was not held in public, even if, in fact, no member of the public was prevented from attending. The obligation to sit in public was fundamental, and the . .
Lists of cited by and citing cases may be incomplete.
Legal Professions, Media, Costs
Updated: 13 July 2022; Ref: scu.143702