EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 33745/96

Norman SCARTH

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 21 October 1998)

33745/96 - i -

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-10) 1

C. The present Report

(paras. 11-15)              2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-27)              3

A. The particular circumstances of the case

(paras. 16-23)              3

B. Relevant domestic law

(paras. 24-27)              4

III. OPINION OF THE COMMISSION

(paras. 28-45)              5

A. Complaint declared admissible

(para. 28) 5

B. Point at issue

(para. 29) 5

C. As regards Article 6 para. 1 of the Convention

(paras. 30-44)              5

CONCLUSION

(para. 45) 7

APPENDIX: DECISION OF THE COMMISSION AS TO THE

      ADMISSIBILITY OF THE APPLICATION              8

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is a British citizen, born in 1925.  He lives in Leeds.

3. The application is directed against the United Kingdom.  The respondent Government were represented by their Agent, Mr H. Llewellyn , of the Foreign and Commonwealth Office, London.

4. The case concerns County Court proceedings which were dealt with at first instance by way of arbitration.  The applicant invokes Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 2 February 1996 and registered on 12 November 1996.

6. On 21 May 1997 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaints concerning the absence of a public hearing before the first instance.

7. The Government's observations were submitted on 6 August 1997 after an extension of the time-limit fixed for this purpose.  The applicant replied on 1 October 1997.

8. On 21 May 1998 the Commission declared admissible the applicant's complaint concerning the absence of a public hearing at first instance.  It declared inadmissible the remainder of the application.

9. The text of the Commission's decision on admissibility was sent to the parties on 5 June 1998 and they were invited to submit such further information or observations on the merits as they wished.  The applicant submitted observations on 12 August 1998, and the Government on 27 August 1998.

10. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

12. The text of this Report was adopted on 21 October 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

14. The Commission's decision on the admissibility of the application is annexed hereto.

15. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. On 26 September 1994, proceedings for recovery of a debt of 697 were commenced by Bradley Grange Stud Limited against the applicant in the Scarborough County Court.

17. By reason of Order 19, rule 3, para. (1) of the County Court Rules 1981 the case was referred for hearing by way of arbitration under Order 19, rule 7 of the County Court Rules.

18. On 8 November 1994 a preliminary hearing took place. The plaintiff did not attend, and the applicant requested that the claim be struck out. The District Judge (the arbitrator) refused to do so.

19. The applicant made an application for the main hearing to be in public and for evidence to be given on oath. This application was heard on 3 January 1995 and refused.  The reasons for the refusal were not recorded formally, but in a note of 21 July 1997 prepared in the context of the Convention proceedings, District Judge Elliott made the following comments:

"At this stage I can only say that it is likely that I took the view that the [applicant's] reasons as set out in his application were not in my view good reasons for the private nature of arbitration proceedings to be dispensed with.  Further the sum of the dispute and the nature of the dispute were basically no different from the usual "run of the mill" arbitration disputes heard in any county court.  Lastly, at the time the arbitration hearing had been fixed, prior to the filing of the application [for the case to be heard in open court].  I cannot say with certainty the above are the reasons I gave.  The earlier fixing of an arbitration hearing date would have carried little weight with me if I had considered the application had any particular merit. ..."

20. The arbitration hearing took place in private on 16 January 1995. On 31 January 1995 District Judge Elliott made his award in writing, finding in favour of the plaintiff.

21. The applicant made an application for the arbitration award to be set aside on the ground that there had been "misconduct" or "errors of law" by the District Judge, pursuant to Order 19, rule 8, para. (1) of the County Court Rules 1981.

22. The hearing of the application to set aside took place before a Recorder in private.  He refused the application on 9 May 1995 and made a costs order against the applicant. These costs were subsequently assessed at 1,032.76.

23. The applicant then applied for leave to appeal to the Court of Appeal alleging a lack of public hearing, misconduct by the judge and an overall unfairness of the proceedings. The applicant was heard in open court and leave was refused on 9 November 1995.  Lord Justice Morritt noted that the "European Convention on Human Rights is not part of our law in the way the European Community law is, and the provisions of the county court rule to which I have referred entitled the District Judge to hold the hearing in private". He further found that the judge could not be said to have been guilty of any misconduct and rejected the applicant`s allegations as to unfairness.  In connection with a submission that the District Judge was wrong on one particular point of law, he continued "That seems to me to be a matter largely of fact, because if these two cheques were handed over for value and either of them was countermanded and subsequently presented, them it would seem that there would be a cause of action on the cheque ...".

B. Relevant domestic law

24. Order 19, rule 3, para. (1) of the County Court Rules ("the Rules"), as in force at the relevant time, states that any proceedings in which the sum claimed or amount involved does not exceed 1000 shall be referred for arbitration.

25. Order 19, rule 7, paras. (1), (3) and (4) of the Rules provides as follows:

"(1) Any proceedings referred to arbitration shall be dealt with in accordance with the following paragraphs of this rule unless the arbitrator otherwise orders.

(3) The hearing shall be informal and the strict rules of evidence shall not apply; unless the arbitrator orders otherwise, the hearing shall be held in private and evidence shall not be taken on oath.

(4) At the hearing the arbitrator may adopt any method of procedure which he may consider to be fair and which gives to each party an equal opportunity to have his case presented;..."

26. Order 19, rule 8, para. (1) of the Rules reads as follows:

"Where proceedings are referred to arbitration, the award of the arbitrator shall be final and may only be set aside ... on the ground that there has been misconduct by the arbitrator or that the arbitrator made an error of law."

27. In monetary matters of less than 5,000, and wherever the County Court judge makes his order in an appellate capacity, leave to appeal must be obtained before a County Court order may be appealed to the Court of Appeal (see RSC 1997, Order 59, rule 1/34, referring to the County Court Appeals Order 1991).

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

28. The Commission has declared admissible the applicant's complaint that he was deprived of the public hearing to which he was entitled.

B. Point at issue

29. The point at issue is whether the absence of a public hearing before the arbitrator in the present case constituted a violation of Article 6 para. 1 of the Convention.

C. As regards Article 6 para. 1 of the Convention

30. Article 6 para. 1 of the Convention provides, in its relevant parts, as follows:

"In the determination of his civil rights and obligations ..., everyone is entitled to a ... public hearing ... [T]he press and public may be excluded from all or part of the trial ... to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

31. The applicant claims that, although he clearly requested a public hearing in the case, he was denied a hearing on the merits.  He points out that the Court of Appeal hearing was no more than consideration of whether to grant leave to appeal.

32. The Government accept that Article 6 applies to the proceedings, but submit that the hearing of the arbitration in private was not in breach of Article 6 as exclusion of the public was necessary because a public hearing would prejudice the interests of justice".  They claim that small claims are referred to arbitration because such a procedure enables disputes to be resolved speedily, informally and inexpensively and that if proceedings were heard in public at a standard county court trial, a wealthier party would use the threat of an order for costs as a weapon against the poorer party.  The arbitration procedure is in fact designed to promote equality of arms in relation to small claims which also do not involve any issues of public interest or importance.

33. The Government further submit that, in any event, the hearing before the Court of Appeal made good any shortcomings before the Arbitrator. They underline that the Court of Appeal considered all of the factual and legal points advanced by the applicant and rejected each of them as unsustainable.             

34. The Commission first notes that the parties agree that Article 6 para. 1 applies to the present case, and it finds that it does.

35. The Commission recalls that the holding of court hearings in public constitutes a fundamental principle enshrined in paragraph 1 of Article 6.  This public character protects litigants against the administration of justice in secret with no public scrutiny, and it is also one of the means by which confidence in the courts can be maintained.  By rendering the administration of justice transparent, publicity contributes to the achievement of the aim of Article 6 para. 1, namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention (Eur. Court HR, Werner v. Austria judgment of 24 November 1997, Reports 1997-VII, p. 2510, para. 45).

36. The final sentence of Article 6 para. 1 of the Convention permits the exclusion of public from all or part of a trial in certain defined cases.  The final case listed is that exclusion of the public is permissible "to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice".

37. The Commission notes that the test set up by those words is strict, and comprises a number of elements: the exclusion must be "strictly necessary in the opinion of the court", and there must be "special circumstances where publicity would prejudice the interests of justice".  The European Court has stated that only "exceptional circumstances" could justify dispensing with a public hearing (Eur. Court HR, Stallinger and Kuso v. Austria judgment of 23 April 1997, Reports 1997-II, p. 680, para. 51).

38. In the present case, it is clear from the note of District Judge Elliott that he did not consider the exclusion of the public to be necessary at all: the test he applied - the test he was required to apply by the County Court Rules - was in effect whether there were reasons for derogating from the ordinary position that, in small claims cases, hearings were not to be public.  The case was, as he expressed it, "no different from the usual 'run of the mill' arbitration disputes heard in any county court".

39. The Commission agrees that there were no "special circumstances" in the present case which would prejudiced the interests of justice if the hearing before District Judge Elliott had been public.  It is true that the Government point to a number of factors which can affect the interests of justice - the need to resolve disputes speedily and inexpensively in particular - but those factors cannot be used to hollow out the fundamental importance of the right to a public hearing enshrined in Article 6.  The Commission would add that it is in any event not readily apparent why the granting of a public hearing to those who request one would necessarily add to the time or expense of litigation, as in the bulk of cases the relatively informal arbitration proceedings could simply be opened to the public.

40. Accordingly, the Commission considers that no "exceptional circumstances" have been made out, such as to justify the denial of a public hearing in the applicant's case.

41. The question remains whether the public hearing which was held before the Court of Appeal constituted that public hearing.

42. The Commission recalls that in the case of Diennet v. France, the European Court of Human Rights found that when the French Conseil d'Etat hears appeals on points of law from decisions of the disciplinary section of the National Council of the ordre des médecins , it cannot be regarded as a "judicial body that has full jurisdiction",

notably because it does not have the power to assess whether the penalty was proportionate to the misconduct.  The fact that hearings before it are held in public did not therefore remedy the absence of a public hearing at an earlier stage (Eur. Court HR, Diennet v. France judgment of 26 September 1995, Series A no. 325-A, p. 15, para. 34).

43. The position in the present case is not exactly the same, as the Court of Appeal's jurisdiction is not theoretically limited.  It is, however, inherent in the notion of compulsory reference of small claims to arbitration that appeals should be limited, and Order 19, rule 8, para. 1 of the Rules provides that the award of the arbitrator shall be final and (so far as relevant) may only be set aside on the ground of (a) misconduct by the arbitrator or (b) an error of law.  The application for leave to appeal to the Court of Appeal was an attempted appeal against the decision - itself limited in scope - of the Recorder, and the Court of Appeal would not have acted as a court which was deciding the merits of the appeal even if it had granted leave to appeal.  In the application for leave to appeal, the Court of Appeal considered and replied to the applicant's grounds, but cannot be seen to have been acting as a body "with full jurisdiction".  Indeed, at the end of the judgment, Lord Justice Morritt indicated that he would not deal with one point (inter alia ) as it was a point of fact and not a point of law.

44. The public hearing before the Court of Appeal cannot therefore be considered to have afforded the applicant the public hearing to which he was entitled as it was an application for leave to appeal against a decision which was, itself, limited to points of law, and because the Court of Appeal did not, in fact, consider the merits of the case.

CONCLUSION

45. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 of the Convention.

  M.F. BUQUICCHIO    M.P. PELLONPÄÄ

     Secretary      President

to the First Chamber of the First Chamber