Post by niseag on Feb 7, 2011 11:59:42 GMT 4
28 January 2011
FOURTH SECTION
Application no. 49672/10
by Jerzy KOZŁOWSKI
lodged on 14 August 2010 against Poland
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Jerzy Kozłowski, is a Polish national who was born on 8 May 1939 and lives in Warsaw.
A. The circumstances of the cases
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was employed as a deputy head of the Planning and Architecture Division of the Warsaw-Centrum municipality. On 14 November 2002 he received a notice of immediate termination of his contract.
On 22 November 2002 the applicant filed an action for reinstatement with the Warsaw-Śródmieście District Court. Subsequently, he brought an action for compensation for lost remuneration.
On 13 November 2007 the Warsaw-Śródmieście District Court, sitting as an assessor and two lay judges, made an award for lost remuneration and compensation for unlawful termination of the applicant's contract. However, it dismissed the applicant claim for reinstatement. The applicant appealed.
On 22 September 2008 the Warsaw Regional Court dismissed his appeal. The applicant lodged a cassation appeal. On 3 December 2009 the Supreme Court dismissed it. The judgment was served on the applicant on 15 February 2010.
B. Relevant domestic law and practice
The relevant law and practice concerning the institution of assessors are set out in the Court's judgment in the case of Henryk Urban and Ryszard Urban v. Poland, no. 23614/08, §§ 16-27, 30 November 2010.
COMPLAINTS
1. The applicant complains under Article 6 of the Convention that the first-instance judgment was given by an assessor who was not independent.
2. The applicant complains under Article 6 of the Convention about the excessive length of the proceedings.
3. The applicant alleges that the outcome of the proceedings amounted to discrimination within the meaning of Article 14 of the Convention.
QUESTION TO THE PARTIES
Was the first-instance court which dealt with the applicant's case independent, as required by Article 6 § 1 of the Convention? Reference is made to the Constitutional Court's judgment of 24 October 2007 (case no. SK 7/06).
KOZŁOWSKI v. POLAND – STATEMENT OF FACTS AND QUESTION
European Court pulls rug from underneath funding for libel and privacy cases
18th January 2011
Today the European Court of Human Rights held in MGN v UK that lawyers acting for claimants in privacy and libel cases should no longer be allowed to recover a “success fee” from defendants. Such success fees have been an integral part of the no-win, no-fee agreements on which many claimant lawyers currently take these cases.
Media Legal Defence Initiative, the Open Society Justice Initiative, Index on Censorship, English PEN, Global Witness and Human Rights Watch jointly intervened in the case to express serious concern about the costs of defending libel and privacy claims in the UK. NGOs and small publishers - including bloggers- are extremely vulnerable to the threat of a costly libel or privacy actions in the UK. They simply do not have the means to defend themselves, and are easily forced to apologise and retract allegations even when they know them to be true.
Gugulethu Moyo, Executive Director of the Media Legal Defence Initiative, said
“Conditional Fee Agreements have resulted in crippling costs for publishers and stop many of them from publishing controversial stories at all. They should now be a thing of the past, and judges must now be required to control proceedings so as to bring down costs. Today’s ruling should move the UK government to enact urgent reforms to English libel and privacy laws, not only to raise the standard of proof for claimants, but also to change the rules on costs. We welcome today’s judgment and urge the UK government to act immediately to implement it.”
Darian Pavli, Senior Attorney at the Open Society Justice Initiative, said:
"The Court confirmed that legal fees awarded in England and Wales for libel and privacy cases are disproportionate and dramatically out of line with the rest of Europe. With London having become the world's libel capital, this is a victory for free speech that goes well beyond Fleet Street."
Patrick Alley, Director, Global Witness, said:
“It’s perverse that one of the biggest risks we face in exposing the corrupt and sometimes bloody trade in natural resources, such as blood diamonds, is legal attack in the UK by powerful people who can afford to use the legal system, with its punitive costs, to launder their reputations and protect their vested interests, regardless of the merits of their case. This judgement sends a clear signal that publication of information in the public interest is important. I hope it’s a signal that is received by the UK government.”
John Kampfner, chief executive of Index on Censorship, said:
“This is a landmark judgment. Success fees have been one of the most significant chills on freedom of expression and today’s ruling removes one of the greatest barriers to free speech in the UK.”
Dinah PoKempner, general counsel of Human Rights Watch, said:
"This judgement strikes a blow for freedom of expression everywhere. We urge the UK government to rapidly reverse the judicial doctrines that have made England a global destination for libel tourism.
Contacts:
* Peter Noorlander, Media Legal Defence Initiative: phone +44 791 7797 203, email peter.noorlander@mediadefence.org
* Darian Pavli, Open Society Justice Initiative: phone +1 646 247 4504, email dpavli@sorosny.org
* Patrick Alley, Global Witness: phone +44 20 7492 5880 / +44 7921 788897, email palley@globalwitness.org
* John Kampfner, Index on Censorship: +44 020 7324 2522
* Dinah PoKempner, Human Rights Watch: +1 917 535 3780
Notes to editors:
1. The court held unanimously that there has been a violation of article 10 of the convention as regards the success fee payable by the applicant. The court noted that it had to consider the proportionality of requiring an unsuccessful defendant not only to pay the reasonable and proportionate costs of the claimant but also to contribute to the funding of other litigation and general access to justice. It considered that the applicant's core complaint concerned the recoverability against it, over and above the base costs, of success fees which had been agreed between Ms Campbell and her legal representatives as part of a CFA. The court examined in detail the public consultation process regarding the CFA/recoverable success fee regime that took place in the UK since 2005 and concluded that due to the depth and nature of the flaws in the system, the impugned scheme exceeded even the broad margin of appreciation accorded to the state.
2. Our intervention can be found here: tinyurl.com/4omgltc
3. The Court devoted six paragraphs to our intervention, noting that high costs had the effect of holding publishers to ransom: defendants are forced to settle early despite good prospects of a successful defence.
4. A study by Oxford University’s Programme on Comparative Media Law and Practice found that the average cost of defending libel cases in the UK was 140 times the European average: pcmlp.socleg.ox.ac.uk/sites/pcmlp.socleg.ox.ac.uk/files/defamationreport.pdf
FOURTH SECTION
Application no. 49672/10
by Jerzy KOZŁOWSKI
lodged on 14 August 2010 against Poland
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Jerzy Kozłowski, is a Polish national who was born on 8 May 1939 and lives in Warsaw.
A. The circumstances of the cases
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was employed as a deputy head of the Planning and Architecture Division of the Warsaw-Centrum municipality. On 14 November 2002 he received a notice of immediate termination of his contract.
On 22 November 2002 the applicant filed an action for reinstatement with the Warsaw-Śródmieście District Court. Subsequently, he brought an action for compensation for lost remuneration.
On 13 November 2007 the Warsaw-Śródmieście District Court, sitting as an assessor and two lay judges, made an award for lost remuneration and compensation for unlawful termination of the applicant's contract. However, it dismissed the applicant claim for reinstatement. The applicant appealed.
On 22 September 2008 the Warsaw Regional Court dismissed his appeal. The applicant lodged a cassation appeal. On 3 December 2009 the Supreme Court dismissed it. The judgment was served on the applicant on 15 February 2010.
B. Relevant domestic law and practice
The relevant law and practice concerning the institution of assessors are set out in the Court's judgment in the case of Henryk Urban and Ryszard Urban v. Poland, no. 23614/08, §§ 16-27, 30 November 2010.
COMPLAINTS
1. The applicant complains under Article 6 of the Convention that the first-instance judgment was given by an assessor who was not independent.
2. The applicant complains under Article 6 of the Convention about the excessive length of the proceedings.
3. The applicant alleges that the outcome of the proceedings amounted to discrimination within the meaning of Article 14 of the Convention.
QUESTION TO THE PARTIES
Was the first-instance court which dealt with the applicant's case independent, as required by Article 6 § 1 of the Convention? Reference is made to the Constitutional Court's judgment of 24 October 2007 (case no. SK 7/06).
KOZŁOWSKI v. POLAND – STATEMENT OF FACTS AND QUESTION
European Court pulls rug from underneath funding for libel and privacy cases
18th January 2011
Today the European Court of Human Rights held in MGN v UK that lawyers acting for claimants in privacy and libel cases should no longer be allowed to recover a “success fee” from defendants. Such success fees have been an integral part of the no-win, no-fee agreements on which many claimant lawyers currently take these cases.
Media Legal Defence Initiative, the Open Society Justice Initiative, Index on Censorship, English PEN, Global Witness and Human Rights Watch jointly intervened in the case to express serious concern about the costs of defending libel and privacy claims in the UK. NGOs and small publishers - including bloggers- are extremely vulnerable to the threat of a costly libel or privacy actions in the UK. They simply do not have the means to defend themselves, and are easily forced to apologise and retract allegations even when they know them to be true.
Gugulethu Moyo, Executive Director of the Media Legal Defence Initiative, said
“Conditional Fee Agreements have resulted in crippling costs for publishers and stop many of them from publishing controversial stories at all. They should now be a thing of the past, and judges must now be required to control proceedings so as to bring down costs. Today’s ruling should move the UK government to enact urgent reforms to English libel and privacy laws, not only to raise the standard of proof for claimants, but also to change the rules on costs. We welcome today’s judgment and urge the UK government to act immediately to implement it.”
Darian Pavli, Senior Attorney at the Open Society Justice Initiative, said:
"The Court confirmed that legal fees awarded in England and Wales for libel and privacy cases are disproportionate and dramatically out of line with the rest of Europe. With London having become the world's libel capital, this is a victory for free speech that goes well beyond Fleet Street."
Patrick Alley, Director, Global Witness, said:
“It’s perverse that one of the biggest risks we face in exposing the corrupt and sometimes bloody trade in natural resources, such as blood diamonds, is legal attack in the UK by powerful people who can afford to use the legal system, with its punitive costs, to launder their reputations and protect their vested interests, regardless of the merits of their case. This judgement sends a clear signal that publication of information in the public interest is important. I hope it’s a signal that is received by the UK government.”
John Kampfner, chief executive of Index on Censorship, said:
“This is a landmark judgment. Success fees have been one of the most significant chills on freedom of expression and today’s ruling removes one of the greatest barriers to free speech in the UK.”
Dinah PoKempner, general counsel of Human Rights Watch, said:
"This judgement strikes a blow for freedom of expression everywhere. We urge the UK government to rapidly reverse the judicial doctrines that have made England a global destination for libel tourism.
Contacts:
* Peter Noorlander, Media Legal Defence Initiative: phone +44 791 7797 203, email peter.noorlander@mediadefence.org
* Darian Pavli, Open Society Justice Initiative: phone +1 646 247 4504, email dpavli@sorosny.org
* Patrick Alley, Global Witness: phone +44 20 7492 5880 / +44 7921 788897, email palley@globalwitness.org
* John Kampfner, Index on Censorship: +44 020 7324 2522
* Dinah PoKempner, Human Rights Watch: +1 917 535 3780
Notes to editors:
1. The court held unanimously that there has been a violation of article 10 of the convention as regards the success fee payable by the applicant. The court noted that it had to consider the proportionality of requiring an unsuccessful defendant not only to pay the reasonable and proportionate costs of the claimant but also to contribute to the funding of other litigation and general access to justice. It considered that the applicant's core complaint concerned the recoverability against it, over and above the base costs, of success fees which had been agreed between Ms Campbell and her legal representatives as part of a CFA. The court examined in detail the public consultation process regarding the CFA/recoverable success fee regime that took place in the UK since 2005 and concluded that due to the depth and nature of the flaws in the system, the impugned scheme exceeded even the broad margin of appreciation accorded to the state.
2. Our intervention can be found here: tinyurl.com/4omgltc
3. The Court devoted six paragraphs to our intervention, noting that high costs had the effect of holding publishers to ransom: defendants are forced to settle early despite good prospects of a successful defence.
4. A study by Oxford University’s Programme on Comparative Media Law and Practice found that the average cost of defending libel cases in the UK was 140 times the European average: pcmlp.socleg.ox.ac.uk/sites/pcmlp.socleg.ox.ac.uk/files/defamationreport.pdf