March 4, 2019

The Committee explains that following the Government’s recent efforts to address the judgment from the European Court of Human Rights in MGN Ltd v UK (application no 39401/04) (18 January 2011), the Committee raised 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.

The Committee noted that it was not clear how individuals whose right to a private life had been violated could access justice if they were unable to afford or obtain ATE insurance, saying that this could effectively prevent access to justice and to an effective remedy for a breach of an individual’s ECHR 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 weaponising costs;
• measures to protect an individual’s right to private life before that right is breached by a publication; and
• whether the Government had any plans to vary the current system.

The Secretary of State’s response contended that 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, it also said that because the insurance market is independent of Government, the data available to the Government was limited.

The Committee said that this raised concerns that the Government does not know whether ATE insurance will be available in all cases where an individual’s ECHR rights have been breached.

The Committee is concerned to ensure that individuals can enforce their human rights. While the MoJ says that if any practising solicitors raise concerns about the availability of ATE insurance for these cases it would be happy to look into them, the Committee says that it appears that the Government has no plans to monitor the situation. To read the Committee’s press release in full and for access to the correspondence, click here.