Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 24433/94

E.D.C.

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 26 February 1997)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-5). . . . . . . . . . . . . . . . . . . . . . . . . . . .1

II. ESTABLISHMENT OF THE FACTS

(paras. 6-43) . . . . . . . . . . . . . . . . . . . . . . . . . . .2

III. OPINION OF THE COMMISSION

(paras. 44-63). . . . . . . . . . . . . . . . . . . . . . . . . . .8

A. Complaint declared admissible

(para. 44). . . . . . . . . . . . . . . . . . . . . . . . . .8

B. Point at issue

(para. 45). . . . . . . . . . . . . . . . . . . . . . . . . .8

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

(paras. 46-62). . . . . . . . . . . . . . . . . . . . . . . .8

CONCLUSION

(para. 63). . . . . . . . . . . . . . . . . . . . . . . . . 11

APPENDIX: DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION. . . . . . . . . . . . 12

I. INTRODUCTION

1. The present Report concerns Application No. 24433/94 introduced

on 22 March 1994 against the United Kingdom and registered on

20 June 1994. The applicant is a British national born in 1924 and

resident in London. The respondent Government, the United Kingdom,

are represented by Iain Christie, Agent, Foreign and Commonwealth

Office.

2. The application was communicated to the Government on

22 February 1995. Following an exchange of written observations, the

complaint relating to the length of proceedings (Article 6 para. 1 of

the Convention) was declared admissible on 29 November 1995. The

decision on admissibility is appended to this Report. The parties

have submitted observations on the merits of the case. The Government

did so by letters dated 16 February, 4 March and 20 August 1996

together with 10 January 1997. The applicant's observations on the

merits were contained in his letters dated 6 February, 5 March, 2 and

12 April, 14 May, 1 and 19 July, 13 September, 4 and 12 November and

11 and 31 December 1996.

3. Having noted that there is no basis upon which a friendly

settlement within the meaning of Article 28 para. 1 (b) of the

Convention can be secured, the Commission (First Chamber), after

deliberating, adopted this Report on 26 February 1997 in accordance

with Article 31 para. 1 of the Convention, the following members

being present:

Mrs. J. LIDDY, President

MM. E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

B. MARXER

B. CONFORTI

N. BRATZA

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

4. In this Report the Commission states its opinion as to whether

the facts found disclose a violation of the Convention by the United

Kingdom.

5. The text of the Report is now transmitted to the Committee of

Ministers of the Council of Europe, in accordance with Article 31

para. 2 of the Convention.

II. ESTABLISHMENT OF THE FACTS

6. On 14 January 1988 the applicant, who earned his living as a

company director, agreed to become a non-executive director of Homes

Assured Corporation plc ("HAC"). In 1989 he resigned this

directorship, on 29 August 1989 HAC ceased to trade and on

30 August 1989 HAC went into voluntary liquidation.

7. In September 1989 the Department of Trade and Industry ("DTI")

referred the case to the Serious Fraud Office. Criminal

investigations were commenced by that office and the police, which

investigations continued up to the relevant criminal trial itself.

8. On 25 October 1989 HAC and two subsidiary companies were

compulsorily wound up and the Official Receiver (who is an officer of

the court) was appointed liquidator.

9. On 4 January 1990 and 20 July 1990 the applicant was

interviewed, in the presence of his solicitor, by a senior examiner

of the Official Receiver's Office. The Official Receiver's draft

report was worked on by the deputy Official Receiver and three

members of staff full time from October 1990 to January 1991 and by

one person from January 1991 until it was delivered, together with

36 files of supporting documents, to the Treasury Solicitor (who

provides legal assistance and advice to, inter alia, the Official

Receiver) on 27 March 1991.

10. In April 1991, three ex-directors of the HAC group were charged

with criminal offences including fraudulent trading. Counsel were

instructed to advise the Treasury Solicitor on 31 July 1991. On

1 August 1991 the Secretary of State decided to issue summonses

against seven ex-directors of the HAC group, including the applicant,

for orders pursuant to the Company Directors Disqualification Act

1986 ("CDDA") to disqualify them from acting as directors for a

potential period of fifteen years. On 7 August 1991 the Official

Receiver gave statutory notice to each of the seven intended

respondents of the Official Receiver's intention to apply for

disqualification orders.

11. Counsel and the Treasury Solicitor spent August 1991 working the

Official Receiver's draft report into a form of report which could be

filed in court. During August 1991 the applicant was specifically

invited to make, and made, representations as to why it would not be

expedient in the public interest for a disqualification order to be

made against him. During this time he requested, but was refused,

particulars of the complaints against him and a meeting with the

Official Receiver.

12. On 21 August 1991, the applicant resigned as Chairman of

Lonhro plc. The applicant felt that his resignation would be in the

best interests of the shareholders of Lonhro plc in view of the

intended prosecution which put in question his competence as a

director.

13. On 28 August 1991 the Official Receiver signed his report and

then issued three disqualification summonses against the applicant

and six others (three of whom were already defendants in the criminal

proceedings). The summonses were issued just within the two-year

limitation period set down by the CDDA. (The applicant's

co-respondents are hereinafter individually referred to as RI, R3,

R4, R5, R6 and R7).

14. In September 1991 the Official Receiver's report was served on

the applicant and his co-respondents. The report so filed is 147

pages long and the supporting evidence was reduced to nine lever arch

files, which evidence was collated from 780 boxes of documentation.

The events in relation to the HAC group, to which this report

related, allegedly took place between November 1988 and August 1989.

All respondents were requested to file their responses by way of

affidavits in reply.

15. In early November 1991 R1 and R5 applied for a stay of all civil

proceedings pending the outcome of the criminal proceedings (against

R1, R4 and R5).

16. In the course of the civil proceedings there were eight

directions hearings before the Registrar of the High Court, four

before a single judge of that court and a hearing before the Clerk of

the Lists to fix a trial date. The applicant was neither present nor

represented at any of those hearings apart from the first. He was

kept informed by the Treasury Solicitor by letter, of forthcoming

directions hearings and of the various applications which were to be

made. Those occasions where the applicant communicated his views to

the Treasury Solicitor as regards such applications are noted below.

17. On 14 November 1991 (first directions hearing) the Registrar of

the High Court consolidated the three summonses and refused the

application for a stay of all civil proceedings pending the outcome

of the criminal proceedings. However, he ordered that the trial in

the civil proceedings would not take place until after the criminal

trial and that the respondents had until 14 May 1992 to file

affidavits in reply. The applicant's counsel did not actively resist

or support the application of R1 and R5.

18. On 14 May 1992 the applicant's solicitor served notice that the

applicant was no longer represented.

19. The Official Receiver subsequently received requests from the

applicant, R1 and R5 for an extension of time for delivery of

affidavits in reply. The Official Receiver indicated that he would

not oppose an order to the effect that in default of receiving the

relevant affidavits by 24 July 1992 those respondents would be

debarred from adducing further evidence in the proceedings.

20. On 4 June 1992 (second directions hearing) the Registrar

(pursuant to an application by the Official Receiver) ordered

delivery of the respondents' affidavits by 28 September 1992 and

adjourned matters to 19 October 1992. R3 was the only one to file by

the deadline fixed, though the applicant filed shortly thereafter on

15 October 1992. This was the only affidavit filed by the applicant.

21. On 19 October 1992 (third directions hearing) the Official

Receiver applied for an order requiring delivery of the respondents'

affidavits by 10 November 1992 (failing which, the respondent in

question would be barred from adducing further evidence). However,

the Registrar ordered the remaining respondents to serve the

affidavits in reply by 30 November 1992, in default of which they

would be debarred from filing any further evidence.

22. On 26 and 27 November 1992 R4 and R5 issued summonses requesting

a stay in the civil proceedings pending the outcome of the criminal

proceedings. Since most of the respondents (excluding the applicant

and R3) had not filed their replies, the Official Receiver made

another application as regards the timetable for submission of

affidavits. The applicant indicated that the timetable suggested by

the Official Receiver was not realistic.

23. On 7 December 1992 (fourth directions hearing) the Registrar

ordered R1-R7 to serve their affidavits in reply on each other and to

respond to each others' affidavits by 15 February 1993. The summonses

issued by R4 and R5 were adjourned to a judge and the matter stood

adjourned until 22 February 1993.

24. On 11 December 1992 R5 appealed the Registrar's decision of

7 December 1992. Subsequently, R1 also appealed.

25. Since certain respondents had not complied with the order of

7 December 1992, the Official Receiver applied for further directions

extending the time limit for filing affidavits to 1 March 1993.

26. On 22 February 1993 (fifth directions hearing) the Registrar

adjourned the various outstanding applications, including those

summonses issued in November 1992 by R4 and R5, to a judge of the

High Court.

27. On 2 April 1993 a single judge of the High Court allowed R1 an

extension until after the conclusion of his criminal trial to file

his affidavit in reply to that of the Official Receiver. His co-

respondents were also given until after the conclusion of the

criminal trial to file further evidence in response to a specific

matter of evidence. R5 was to file his affidavit in response to his

co-respondents' affidavits by 30 April 1993.

28. On 19 April 1993 the criminal trial of the R1, R4 and R5

commenced. On 27 August 1993 R1 and R5 were convicted. The jury was

unable to reach a verdict in relation to R4 and he was formally

acquitted. (In all there were over 2000 pages of witness statements

and over 9000 pages of exhibits. 303 witness statements were served

and approximately 50 witnesses were called to give oral evidence. The

applicant was not called to give evidence).

29. On 3 September 1993 the applicant requested a copy of the

transcript of the criminal trial from the Treasury Solicitor as he

required a copy in order to conduct his defence to the

disqualification proceedings. On 21 September 1993 R1 and R5 appealed

to the Court of Appeal against their conviction. On 1 October 1993 R1

and R5 were sentenced to terms of imprisonment and were disqualified

from acting as directors for ten years.

30. The relevant co-respondents of the applicant (excluding R1 and

R3) delivered their affidavits in reply to the Official Receiver by

December 1993.

31. On 7 February 1994 (sixth directions hearing) the Registrar

ordered that the Official Receiver file his affidavit, in response to

the respondents' affidavits in reply, by 17 May 1994 and the matter

was adjourned until 13 June 1994.

32. On 3 March 1994 the applicant was offered the opportunity to

examine relevant extracts from the transcripts of the criminal

proceedings in the Treasury Solicitor's office. (The applicant

attended at the relevant office during four days in January 1996.)

33. On 23-27 May 1994 the Court of Appeal heard the appeals of R1

and R5 in the criminal proceedings but ordered another appeal

hearing.

34. On 13 June 1994 (seventh directions hearing) the Registrar

agreed to the Official Receiver's request for an extension of time

until 20 June 1994 for the delivery of the Official Receiver's

affidavit in reply and adjourned the matter until 11 July 1994. The

applicant indicated to the Treasury Solicitor that he had been placed

in such a position of intolerable jeopardy due to delay that a few

more days was of little import. The Official Receiver's affidavit was

served on 23 June 1994.

35. On 11 July 1994 (eighth directions hearing) it was ordered that

R1 should file his evidence by 8 August 1994 (in default of which he

would be debarred from filing further evidence), that the remaining

respondents could file affidavits in response to R1 by

19 September 1994 and that the Official Receiver was to file evidence

in response to all of those affidavits by 31 October 1994. The matter

was adjourned to a judge for trial at a time to be fixed.

36. On 1 August 1994 the appeal in the criminal proceedings

recommenced and on 5 August 1994 the Court of Appeal dismissed R1's

appeal and allowed, in part, R5's appeal. The disqualification orders

remained against R1 and R5.

37. On 8 August 1994 R1 filed his affidavit in response to that of

the Official Receiver.

38. On 12 October 1994 the Clerk of the Lists fixed the trial date

in the civil proceedings for 11 January 1996 on the basis that the

trial was scheduled to last eight to ten weeks. The applicant had

indicated to the Treasury Solicitor that he was anxious that the

trial proceed as quickly as possible so that he could have an

opportunity to clear his name. At the same time, the applicant

expressed his sympathy for those co-respondents who had had to endure

civil and criminal proceedings at the same time.

39. On 1 March 1995 R1 and R5's application in the criminal

proceedings for leave to appeal to the House of Lords was refused.

40. From August 1991 the applicant's legal representatives (and

after May 1992, the applicant) corresponded with the Treasury

Solicitor challenging the issuance of proceedings which it was

claimed had, by their very nature, a detrimental effect on the

applicant's livelihood without the applicant having an opportunity to

refute the allegations. He also requested, inter alia, that the civil

proceedings against him be abandoned on a number of grounds including

delay and the applicant's age and ill-health or, in the alternative,

that the civil proceedings be expedited so that the applicant could

clear his name in the near future in order to limit the effect on him

and his wife of the ongoing uncertainty. Having considered the

matters raised by the applicant on a number of occasions the Official

Receiver and the Treasury Solicitor considered it expedient in the

public interest to continue with the proceedings against the

applicant.

41. The applicant's doctor had advised in reports dated

15 August 1991, 22 August 1991 and 2 February 1994 that the

proceedings against the applicant would be detrimental to his health

and these reports were sent to the Treasury Solicitor. In

November 1994 the Treasury Solicitor himself obtained a medical

report on the applicant which report largely agreed with the

applicant's doctor's conclusions, diagnosed, inter alia, clinical

depression, short-term memory defects and cardiac problems and

concluded that the applicant's health would be seriously affected by

the strain of a prolonged hearing. This report also concluded that

the applicant was unfit to pursue an active business career.

42. On 22 January 1996 the High Court made an order, based on the

consent of the parties, that the proceedings against the applicant be

stayed on the basis of his undertaking not to act as a director of a

company in the future without the leave of the court. The court noted

that it had taken into account the health hazards and difficulties of

a long trial for the applicant and the fact that four and half years

had passed since the proceedings were begun. The court stated that it

was in no way satisfied that the delay had been to any material

extent the fault of the Official Receiver (or his legal team) or of

the Secretary of State.

43. Furthermore, on 12 March 1993 the applicant was adjudicated

bankrupt pursuant to his then solicitor's petition on the basis of

unpaid legal fees. The applicant's bankruptcy was discharged in

December 1996. As a bankrupt the applicant was automatically

disqualified from acting as a director unless he obtained the consent

of the court under section 11 of the CDDA.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

44. The Commission has declared admissible the applicant's complaint

that his case was not heard within a reasonable time.

B. Point at issue

45. The only point at issue is whether the length of the proceedings

complained of exceeded the "reasonable time" requirement referred to

in Article 6 para. 1 (Art. 6-1) of the Convention.

C. As regards Article 6 para. 1 (Art. 6-1) of the Convention

46. The relevant part of Article 6 para. 1 (Art. 6-1) of the

Convention provides as follows :

"In the determination of his civil rights and obligations

..., everyone is entitled to a ... hearing within a

reasonable time by (a) ... tribunal ..."

47. The proceedings in question concerned summonses issued under

section 6 of the Company Directors Disqualification Act 1986 by the

Official Receiver against, inter alia, the applicant. The Commission

notes that the purpose of the proceedings was to obtain an order of

the court to disqualify the applicant from acting as a director for

a potential period of 15 years. The Commission considers that the

proceedings constituted a dispute over "civil rights and obligations"

(see, for example, No. 11282/84, Dec. 12.11.87, D.R. 54, p. 70) and,

accordingly, that the proceedings fall within the scope of Article 6

para. 1 (Art. 6-1) of the Convention.

48. Although the applicant was notified on 7 August 1991 that the

proceedings would issue against him, the Commission considers that

for the purposes of this application the proceedings began on

28 August 1991 when those proceedings in fact issued. (The Commission

has considered certain matters relating to the period prior to the

issuance of proceedings at paragraph 59 below). It also considers

that the proceedings terminated on 22 January 1996 when the High

Court ordered a stay of proceedings, with the consent of the parties,

the aim and effect of the order being to bring to an end the

proceedings against the applicant. Accordingly, the proceedings at

issue lasted 4 years, 4 months and 26 days.

49. The Commission recalls that the reasonableness of the length of

proceedings must be assessed with reference to the established

criteria namely, the complexity of the case, the conduct of the

parties and the conduct of the authorities dealing with the case and

in light of the particular circumstances of the case (Eur. Court HR,

Vernillo v. France judgment of 20 February 1991, Series A no. 198,

p. 12, para. 30).

50. According to the Government, the length of the period in

question is due to the complexity of the case, to delay on the part

of the applicant and to delay on the part of his co-respondents. The

applicant takes issue with these submissions.

51. The Commission accepts that the case was substantively and

procedurally complex.

52. As to the periods of delay attributed to the applicant and his

co-respondents, the Commission notes that the applicant is not

responsible for delays resulting from applications for extensions,

adjournments and consolidation made by others (mutatis mutandis, Eur.

Court HR, Capuano v. Italy judgment of 25 June 1987, Series A

no. 119, p. 13, para. 28) and that, even if a system leaves the

initiative for making applications (in this case for an early and

separate trial) to the parties, this does not exempt the courts from

ensuring that the reasonable time requirement of Article 6 (Art. 6)

of the Convention is complied with (Eur. Court HR, Capuano v. Italy

judgment, loc. cit., pp. 13-14, para. 31). Delays on the part of the

applicant's co-respondents in filing documents can similarly not be

attributed to the applicant.

53. The Commission notes that, although the Official Receiver's

report was served in September 1991, the applicant did not file an

affidavit in response until over a year later, on 15 October 1992.

However, the Commission also notes that the applicant was not

represented after May 1992 and that the report of the Official

Receiver, to which he had to respond, was complex and voluminous.

Further, despite these facts the applicant was one of the first

respondents to serve his affidavit and he did so within approximately

three weeks of the extended time-limit fixed by the Registrar for

that purpose. In any event, by October 1992 most of the applicant's

co-respondents had yet to file their affidavits and the case could

not proceed to the next stage until they had done so or been

disbarred from so filing. It is true that, subsequently, the

applicant did not file a reply to his co-respondents' affidavits (the

latter having all been filed by December 1993). However, there is no

evidence that the Official Receiver took any positive steps either to

obtain this evidence from the applicant or to disbar him from

submitting any such evidence or that this, in any event, delayed the

proceedings in any practical respect.

54. Accordingly, the Commission does not consider that the conduct

of the applicant is, in itself, sufficient to explain the length of

the proceedings.

55. As to the conduct of the competent authorities, the Commission

notes, in particular, that the decision to fix the trial date was not

taken until 12 October 1994 (approximately 14 months after the

conviction on criminal charges of certain of the applicant's co-

respondents).

56. On 12 October 1994 the Clerk of Lists fixed a trial date of

11 January 1996, which trial date was some 28 months after the

criminal trial had concluded, 17 months after the dismissal by the

Court of Appeal of the appeals in the criminal proceedings and

10 months after the refusal of leave to appeal to the House of Lords.

The justification offered by the Government for this delay is the

availability of court dates and of counsel bearing in mind the

probable length and extent of the trial. However, the Court has

consistently emphasised that it is up to States to organise their

legal systems in such a manner as to meet the requirements of

Article 6 para. 1 (Art. 6-1) of the Convention (cf., for example,

Eur. Court HR, Ruotolo v. Italy judgment of 27 February 1992, Series

A no. 230-D, p. 40, para. 17). Accordingly, the Commission considers

that no convincing explanation for this delay has been advanced by

the respondent Government.

57. The Commission also considers that the present case calls for

an overall assessment of the reasonableness of the length of the

proceedings. It is of the opinion that the most significant factors

in the length of the proceedings against the applicant were the

number of respondents in the civil proceedings (all former directors

of the HAC group), the fact that the proceedings related to three

companies in the HAC group and the fact that three of the respondents

were defendants in parallel criminal proceedings which latter fact

led to the decisions to adjourn the trial in the civil proceedings

(14 November 1991) and, subsequently, to extend the period for the

delivery of certain pleadings (2 April 1993) pending the conclusion

of the criminal proceedings.

58. The Commission observes that the disqualification proceedings

against the applicant might have been expedited if the Official

Receiver had proceeded separately against the various respondents or

if separate proceedings had been brought against those four

respondents who were also defendants in the criminal proceedings.

However, the Commission accepts that such an approach was not a

practical option having regard to the duplication of work which this

would have entailed and the risk of prejudice to those who were

defendants in the criminal proceedings in view of the close link

between the issues raised in the criminal and disqualification

proceedings. For the same reason, the Commission accepts that it was

probably neither feasible nor consistent with the proper

administration of justice for the hearing of the disqualification

proceedings to have taken place before the criminal proceedings

concluded. The decisions of the Registrar and the Judge on

14 November 1991 and 2 April 1993, respectively are, accordingly,

justifiable in such circumstances.

59. Nevertheless, the consequences of joining all of the respondents

in the same proceedings and of adjourning the trial until the

criminal proceedings had been finally determined was that the

proceeding against the applicant were pending for over four years and

four months. Moreover, by the time the proceedings were stayed in

January 1996, approximately seven years had elapsed from the date of

the events giving rise to the proceedings against the applicant,

during which period almost the entire of the applicable two year

limitation period had passed before the Official Receiver issued the

relevant summonses.

60. The Commission further observes that, although the existence of

the parallel criminal proceedings contributed significantly to the

delay in the disqualification proceedings, the applicant was at no

stage a party to those proceedings; he was not charged with any

criminal offence in relation to the activities of the HAC group, he

was not at any stage interviewed by the Serious Fraud Office and he

was not called as a witness in the criminal proceedings.

61. Moreover, the Commission has no reason to doubt that the

existence of disqualification proceedings against the applicant,

whose profession was that of company director, would have had a

considerable impact on the applicant's reputation and on his ability

to practise his profession while the proceedings were pending.

Accordingly, the Commission considers that special diligence and

expedition were called for in the circumstances of the present case

(mutatis mutandis, Eur. Court HR, Ruotolo v. Italy judgment, loc.

cit., p. 39, para. 17).

62. In the light of the criteria established by case-law and having

regard to the overall circumstances of the present case, the

Commission considers that the length of the proceedings was excessive

and failed to meet the "reasonable time" requirement contained in

Article 6 para. 1 (Art. 6-1) of the Convention.

CONCLUSION

63. The Commission concludes, by 13 votes to 1, that there has been

a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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E.D.C. v. THE UNITED KINGDOM

E.D.C. v. THE UNITED KINGDOM

LEXI