European Court of Human Rights

The only outstanding matter to be settled is the question of the application of Article 50 (art. 50) in the present case. Accordingly, as regards the facts, the Court will confine itself here to giving the pertinent details; for further particulars, reference should be made to paragraphs 8 to 37 of the Court’s judgment of 26 April 1979 (Series A no. 30, pp. 8-27).

During the proceedings on the merits, the applicants, without quantifying their claim, had requested the Court to declare, in application of Article 50 (art. 50), that the Government of the United Kingdom ("the Government") should pay to them a sum equivalent to the costs and expenses which they, the applicants, had incurred in connection with the contempt litigation in the English courts and the proceedings before the Commission and the Court. The Court reserved the whole of the question of the application of Article 50 (art. 50). Those appearing before the Court were invited to notify it, within three months from the delivery of the judgment, of any settlement at which the Government and the applicants might have arrived (point 4 of the operative provisions and paragraphs 76-78 of the reasons, ibid., pp. 44-45).

- on 10 October 1979, observations of the applicants, transmitted by the Commission’s Delegates;

- on 14 December 1979, memorial of the Government;

- on 21 February 1980, observations of the Delegates, together with the applicants’ observations on the Government’s memorial;

- on 18 April 1980, supplementary memorial of the Government.

On 30 May 1980, the Secretary to the Commission, acting on the Delegates’ instructions, transmitted to the registry some comments by the applicants on the Government’s supplementary memorial which they had sent to him on their own initiative. On 3 June, the Court decided, on the ground that the case was already ready for decision, not to take this document into account and, accordingly, not to communicate it to the Government.

(a) for the litigation in the English courts ("the English costs"): 15,809.36 pounds;

(b) for the proceedings before the Commission and the Court ("the Strasbourg costs"):

- 24,760.53 pounds up to the delivery of the judgment of 26 April 1979;

- an additional amount in respect of the Article 50 (art. 50) proceedings;

(c) interest at 10% per annum on the sums awarded.

There was appended to the applicants’ observations of 10 October 1979 a schedule with particulars of the quantified items, incurred since October 1972. For ease of reference, relevant details are included below in the section "As to the law".

"... I am writing to you now to see whether the matter of costs could be dealt with by agreement, thus avoiding any argument at the resumed hearing, when judgment is given.

I do not think you will be surprised to hear that we expect the House of Lords to find in favour of the Attorney-general ...

In normal circumstances it would be difficult to resist the argument that costs should follow the event, but I venture to suggest that there are a number of features about the present case which would justify a departure from the normal rule ..."

There followed a list of circumstances surrounding the litigation in the English courts, together with an assertion that The Sunday Times had acted "with great restraint and responsibility" and had "frequently subordinated its private interest to the more general public interest".

The letter concluded:

"... we ... base our suggestion that it should be agreed that, in the event of a judgment by the House of Lords in favour of the Attorney-General, there should be an agreed Order that each side pay their own costs, both in the House of Lords and in the courts below, on the ... grounds which I have outlined above."

The Deputy Treasury Solicitor had replied on 15 June 1973:

"I have obtained the instructions of the Attorney-General on your letter of the 8th June. He considers that each party should bear their own costs of all the proceedings, whatever the outcome of the appeal to the House of Lords."

FINAL SUBMISSIONS MADE TO THE COURT

"(1) to hold that just satisfaction does not in the circumstances of this case require the award against the United Kingdom of any costs or expenses incurred by the applicants in the domestic courts or before the Commission or Court;

alternatively

(2) (a) to hold that no part of the costs incurred by the applicants in the English courts should be awarded under Article 50 (art. 50) on the grounds

i) that such an award would be contrary to the express agreement reached between the applicants and the Attorney-General of England and made at the express request and for the exclusive benefit of the applicants;

(ii) that such costs were in any event not necessarily incurred by the applicants for the purpose of establishing a breach of the Convention;

(b) to hold that only those costs which were necessarily incurred by the applicants in establishing the breach of Article 10 (art. 10) of the Convention are recoverable and, in particular, to deny costs incurred in advancing submissions which were rejected by the Commission and by the Court;

(3) to hold that any costs awarded should in any event not exceed a sum calculated by reference to the current rates payable under the scheme for free legal aid operated by the Commission."

The Delegates of the Commission, for their part, submitted that "the finding of a violation in this case does not in itself constitute a ‘just satisfaction’ but that the applicants should be awarded a monetary satisfaction on the basis of any moral damage suffered by the applicants and the necessary legal expenses incurred by them".

AS TO THE LAW

I. GENERAL ASPECTS

In fact, each of the applicants is clearly an "injured party" – a phrase synonymous with the term "victim" as used in Article 25 (art. 25) - in the sense that they were persons directly affected by the decision held by the Court in its judgment of 26 April 1979 to be in conflict with the obligations arising from the Convention (see the De Wilde, Ooms and Versyp judgment of 10 March 1972, Series A no. 14, p. 11, par. 23).

Again, it has not been suggested that English law allows complete reparation to be made for the consequences of the decision. In any event, as the Commission’s Delegates pointed out, the intrinsic nature of the wrong - an interference with freedom of expression - prevents such reparation (see, mutatis mutandis, the König judgment of 10 March 1980, Series A no. 36, p. 14, par. 15).

It is true that the applicants’ submissions contained some references to material and moral damage allegedly suffered. Nevertheless, not only was the claim under Article 50 (art. 50), when originally formulated, confined to costs and expenses (see paragraph 2 above and paragraph 78 of the judgment of 26 April 1979) but also, in their observations of 10 October 1979, the applicants expressly stated that their request for just satisfaction was so limited.

In the context of Article 50 (art. 50), the Court normally looks only to the items actually claimed (see, for example, the Deweer judgment of 27 February 1980, Series A no. 35, pp. 31-32, par. 59-60) and, since no question of public policy is involved, will not of its own motion consider whether the applicant has been otherwise prejudiced. The Court accordingly concludes that the claim for costs and expenses is the only matter arising for its determination in the present case.

The Court concurs with the Delegates’ view that it is not applying a domestic rule if it accepts under Article 50 (art. 50) a claim in respect of costs. As the Government pointed out, the injured party is not entitled to his costs as of right: "just satisfaction" is to be afforded "if necessary" and the matter falls to be determined by the Court at its discretion, having regard to what is equitable.

The Court considers it right to distinguish here, as it did in the Neumeister case (judgment of 7 May 1974, Series A no. 17, pp. 20-21, par. 43), between damage caused by a violation of the Convention and costs necessarily incurred by the applicant. The decisions referred to by the Government all related to claims in respect of the former item, whereas the Court’s general practice has been to accept claims in respect of the latter (see the above mentioned Neumeister, Deweer and König judgments). In fact, it is, difficult to imagine that the finding of a violation could of itself constitute just satisfaction as regards costs.

The Government listed in support of their submission a number of "special features" of the present case. One of them (an alleged agreement between the parties - see paragraph 7 above) concerns solely the English costs and another (the fact that some expenses were accounted for by unsuccessful submissions) solely the Strasbourg costs; the Court examines these points in paragraphs 19-22 and 27-28 below and confines itself at this stage to the remaining arguments.

Firstly, the English proceedings were said to be the result of "joint co-operation", the applicants having "welcomed" the opportunity of having the matter tested in court. If the implication was that they accepted the risk of bearing the costs referable to a matter known to be of uncertain outcome, the Court would point out that a very substantial amount of litigation has this character and yet this does not prevent the successful party from being awarded his costs in many of the Contracting States’ legal systems. Moreover, it is doubtful to what extent the applicants can be regarded as willing litigants. Short of renouncing publication of the contentious article - a course they would clearly have found repugnant-, the only alternative to the English proceedings would, as they observed, have been to publish and run the risk of incurring the severe sanctions attaching to contempt of court. In addition, this feature has no bearing on the Strasbourg costs.

Secondly, the Government emphasised that the injunction ordered by the House of Lords was limited in scope and duration and was, moreover, discharged on 23 June 1976. However, this does not alter the fact that, for nearly three years, the applicants were deprived, in conditions at variance with Article 10 (art. 10), of some part of their freedom of expression.

Thirdly, the Government referred to their promise to introduce legislation amending the law of contempt of court and to the small majorities by which both Commission and Court arrived at their conclusions. However, these features are not relevant for the examination of the present claims: the Contracting States concerned are in any event under an obligation to adjust their domestic law to the requirements of the Convention and no consequence in law attaches to the size of the majority by which, in accordance with the relevant provisions (Articles 34 and 51 par. 2 of the Convention and Rule 20 par. 1 of the Rules of Court) (art. 34, art. 51-2), Commission and Court arrive at their decisions.

The Court does not perceive circumstances such as to warrant a departure in the present case from its general practice and accordingly rejects the Government’s principal submission.

II. THE ENGLISH COSTS

- they were not incurred for the purpose of challenging or establishing a breach of the Convention, none having occurred until the decision of 18 July 1973 of the House of Lords;

- "such an award would be contrary to the express agreement reached between the applicants and the Attorney-General of England and made at the express request and for the exclusive benefit of the applicants" and it "would be wrong to permit the applicants to shirk" from that agreement.

The applicants did not deny the existence of an agreement but submitted that:

- it did not relate to their own costs at all but only to those of the Attorney-General: there was no reason whatever for them to "agree" to bear the former costs which they were anyway bound to pay as the losing party;

- its only effect was to reduce the amount of their claim under Article 50 (art. 50): if they had not applied for a concession and thereby minimised their expenditure, they would have paid, and would now be seeking compensation in respect of, the Attorney-General’s costs as well;

- in any event, they never agreed not to claim, before the Convention institutions, reimbursement of the English costs.

The Commission’s Delegates considered that the agreement was "relevant" for the Court’s assessment as to what domestic costs, if any, should be taken into account.

Although this exchange of letters does not in itself provide sufficient evidence of the creation of a binding agreement, the subsequent attitude of the parties shows that they considered that such an agreement had nevertheless been achieved. This appears from the Order of the House of Lords "that, by consent, each party do bear and pay their own costs", which Order was based on the statement by counsel for the Attorney-General that it had "been agreed that each party should pay their own costs" (see paragraph 8 above).

Also, in their observations submitted to this Court, the applicants did not deny that an agreement had in fact been concluded on the subject. The difference of opinion concerned solely the scope of this agreement: according to the applicants, it related only to the costs of the Attorney-General; according to the Government, it related to the costs of Times Newspapers Limited as well and applied "whatever the outcome".

The original proposal by Times Newspapers Limited - that "it should be agreed that, in the event of a judgment by the House of Lords in favour of the Attorney-General, there should be an agreed Order that each side pay their own costs" - was accepted by the Attorney-General only on terms that the agreement be reciprocal, that is applicable "whatever the outcome of the appeal to the House of Lords".

It does not appear, and seems improbable, that the Attorney-General subsequently changed his position. The fact that according to both parties an agreement was nevertheless reached leads to the conclusion that after the exchange of letters Times Newspapers Limited as well took it for granted that each party should pay their own costs "whatever the outcome"; this is all the more probable because Times Newspapers Limited, as is shown by the letter from its Legal Adviser to the Treasury Solicitor, expected the House of Lords to find in favour of the Attorney-General and so cannot have found it very difficult to acquiesce in the latter’s point of view.

III. THE STRASBOURG COSTS

1. Were the costs actually incurred?

In the absence of any evidence, the Court must assume that the activities in question were indeed covered by Mr. Whitaker’s ordinary remuneration. However, if an employee, by devoting his time to particular litigation, does work of a kind which would otherwise be done by independent lawyers, it is in general reasonable to consider the part of his salary that represents a normal reward for that work as an expense of his employer. Although the English practice is not conclusive in the autonomous context of Article 50 (art. 50) (see paragraph 15 above), it is noteworthy that similar considerations appear to underlie that practice. Neither the Government nor the Commission contested that in the present case Mr. Whitaker rendered services which would otherwise have had to be provided by independent lawyers paid by Times Newspapers Limited. The Court therefore concludes that the expense of 7,500 pounds can be regarded as actually incurred.

2. Were the costs necessarily incurred?

(a) Costs referable to unsuccessful submissions

The applicants replied that they had to assert their case to the best of their ability and that evaluation by hindsight was the wrong approach.

(b) Fees paid to three counsel for services rendered in 1978/79: 12,000 pounds

(c) Travel and hotel expenses

(i) December 1975 (proceedings before the Commission): 604.85 pounds

ii) April 1978 (hearings before the Court): 1,319.60 pounds

On the other hand, the Court considers that the presence of Mr. Knightley and Mr. Harold Evans, as applicants, was of value and sees no reason for not following the solution adopted in the above-mentioned König judgment (p. 19, par. 26).

In the result, the Court accepts as necessarily incurred under this head the travel and hotel expenses for Mr. Lester, Mr. Knightley, Mr. Harold Evans and Mr. Whitaker, namely 767.20 pounds.

(iii) April 1979 (delivery of the Court’s judgment of 26 April): 705 pounds

(d) Disbursements

(i) Opinions on contempt law from eight countries: 2,000 pounds

(ii) Copies of the book "Thalidomide: My Fight": 52.60 pounds

(e) Other expenses

3. Were the costs reasonable as to quantum?

The Delegates stated that they did not propose to consider the actual amounts in themselves. The Government made the general observation that the costs claimed, especially counsels’ fees, exceeded in quantum the sums that would normally be recoverable under the English system of assessment of costs (see paragraph 9 above). However, the Court does not consider that it has to pursue this point since, in the context of a claim for legal expenses under Article 50 (art. 50), it is not bound by domestic scales or standards (see the above-mentioned König judgment, pp. 18-19, par. 22-23 and 25). As regards the amounts themselves, the Court is of the opinion that none of them can be regarded as out of proportion.

In that case, the Court saw no reason for refusing full reimbursement of the costs incurred insofar as they proved reasonable (see the above-mentioned König judgment, p. 19, par. 24). The Court is not persuaded that it should adopt a different solution in the present instance and accordingly does not accept the Government’s submission.

4. Costs of the Article 50 (art. 50) proceedings

Whilst the applicants have not provided any details concerning this item, it appears to relate to work done by Mr. Whitaker and can therefore be regarded as actually incurred for the reasons stated in paragraph 25 above. It was described as a figure "to date" but there is no evidence of any expenditure since February 1980 other than that referable to the preparation of a document which the Court decided not to take into account (see paragraph 5 above). The Court does not consider that it has to make further enquiries in this respect: it was clearly necessary to incur some expenditure in connection with the Article 50 (art. 50) proceedings and a figure of 3,000 pounds does not prove to be unreasonable.

5. Interest

Since no award was made in the Court’s judgment of 26 April 1979, it is only the present judgment that is "relevant" for this purpose. Moreover, it may be assumed that the United Kingdom will comply promptly with the obligation incumbent on it under Article 53 (art. 53) of the Convention. The Court therefore does not find it necessary to accede to this claim.

FOR THESE REASONS, THE COURT

1. Holds by thirteen votes to three that the United Kingdom is to pay to the applicants, in respect of costs and expenses incurred in connection with the proceedings before the Commission and the Court, the sum of twenty-two thousand six hundred and twenty-six pounds sterling and seventy-eight pence (22,626.78 pounds);

2. Rejects unanimously the remainder of the claim for just satisfaction.

Done in English and in French, the English text being authentic, at the Human Rights Building, Strasbourg, this sixth day of November, one thousand nine hundred and eighty.

For the President

Gérard WIARDA

Vice-President

Marc-André EISSEN

Registrar

The separate opinions of Sir Gerald Fitzmaurice, Mr. Liesch and Mr. Pinheiro Farinha are annexed to the present judgment in accordance with Article 51 par. 2 (art. 51-2) of the Convention and Rule 50 par. 2 of the Rules of Court.

G.W.

M.-A.E.