Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 22410/93

Geoffrey and Margaret Robins

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 4 July 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 8). . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. ESTABLISHMENT OF THE FACTS

(paras. 9 - 23) . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. The particular circumstances of the case

(paras. 9 - 21) . . . . . . . . . . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law

(paras. (22 - 23) . . . . . . . . . . . . . . . . . . . . . . . . . 4

III. OPINION OF THE COMMISSION

(paras. 24 - 40). . . . . . . . . . . . . . . . . . . . . . . . . . 6

A. Complaint declared admissible

(para. 24). . . . . . . . . . . . . . . . . . . . . . . . . . 6

B. Point at issue

(para. 25). . . . . . . . . . . . . . . . . . . . . . . . . . 6

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

(paras. 26 - 39). . . . . . . . . . . . . . . . . . . . . . . 6

CONCLUSION

(para. 40). . . . . . . . . . . . . . . . . . . . . . . . . . 8

DISSENTING OPINION OF MRS. J. LIDDY, MM. G.B. REFFI, I. BÉKÉS,

G. RESS, K. HERNDL. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

DISSENTING OPINION OF MR. ROZAKIS, MRS. THUNE AND MR. LOUCAIDES . . . . .11

DISSENTING OPINION OF MR. E. BUSUTTIL . . . . . . . . . . . . . . . . . .12

APPENDIX I: PARTIAL DECISION OF THE COMMISSION

AS TO THE ADMISSIBILITY OF THE APPLICATION. . . . . . .13

APPENDIX II: FINAL DECISION OF THE COMMISSION

AS TO THE ADMISSIBILITY OF THE APPLICATION. . . . . . .20

I.INTRODUCTION

1. The present Report concerns Application No. 22410/93 introduced

on 14 March 1993 against the United Kingdom and registered on 3 August

1993.

2. The applicants are United Kingdom nationals born in 1942 and 1943

respectively and resident in Crediton and London.

3. The respondent Government are represented by their Agent,

Ms. Susan J. Dickson.

4. On 22 February 1995 the Commission (First Chamber) communicated

to the respondent Government the applicants' complaint under Article 6

para. 1 of the Convention insofar as it concerned the length of the

cost proceedings in their case and declared the remainder of the

application inadmissible.

5. Following an exchange of written observations, the complaint

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

the Convention) was declared admissible on 18 January 1996. The

decision on admissibility is appended to this Report. The applicants

have submitted observations on the merits on 18 March 1996.

6. 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, after deliberating, adopted

this Report on 4 July 1996 in accordance with Article 31 para. 1 of the

Convention, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

G.B. REFFI

M.A. NOWICKI

B. CONFORTI

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

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

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

Kingdom.

8. 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

A. The particular circumstances of the case

9. By a judgment of 1 May 1991 the applicants' claims against their

neighbours arising from a dispute over sewerage problems were

dismissed. The applicants' ensuing appeal was dismissed by the Court

of Appeal on 19 October 1992.

10. On 31 May 1991 the applicants' neighbours requested a further

hearing to determine costs. Hearings were held at the Exeter Combined

Court Centre on 3 September and again on 19 September 1991, before

Judge Clarke. As the question of costs could not be resolved because

of factual disputes and conflict between the parties, on 24 September

1991 Judge Clarke made a direction that the enquiry should be adjourned

and not restored until a number of points concerning the applicants'

entitlement to legal aid had been clarified.

11. On 4 February 1992 the Legal Aid Board informed the Court that

a fresh Department of Social Security assessment of the applicants'

means was required in view of the fact that the applicants were not

living together any longer.

12. In a letter from the Department of Social Security, filed with

the Court on 10 November 1992, it was explained that a delay of

9 months had been caused because those undertaking the assessment of

means were under the wrong impression that the applicants had

separated.

13. The restored hearing was held on 12 - 13 November 1992 before

Judge Darwall-Smith as Judge Clarke had fallen ill. Judge Darwall-

Smith said that his powers of assessment on the issue of costs were

under Section 17 of the Legal Aid Act 1988 and that his discretion was

very wide and included in particular assessment of the financial

resources of all the parties and of their conduct. Examining these

criteria, the Judge observed that it was a mystery how the applicants

had obtained legal aid with a nil contribution while their neighbours

had been refused legal aid. He did not consider that the applicants

were eligible in the first place as they had an equity in Applewood

more valuable than their neighbours' home.

14. On 13 November 1992 Judge Darwall-Smith delivered his judgment

on the cost matter. He found that the balance of money retained by the

Legal Aid Board (£ 4,599) should be paid to the defendants forthwith

and that the applicants were liable to pay a sum of £6,000 (payable in

instalments of £100 per month) in respect of costs.

15. The applicants sought legal aid to appeal against this decision.

By notice dated 11 January 1993, the applicants applied for an

extension of time for appealing as it had expired on 11 December 1992.

Subsequently queries were raised by one of the Civil Appeals Office

lawyers as to whether leave to appeal, as well as an extension of the

time for appealing were required, and the matter was referred to the

Registrar.

16. On 11 August 1993 Counsel advised the applicants that while it

was correct that the Judge enjoyed "wide discretion", it had to be

applied on a proper basis. He was probably wrong to conclude that the

applicants were ineligible for legal aid and under Section 17(3) of the

Legal Aid Act the Judge should not have taken into account the equity

in Applewood, which was their home.

17. In March 1993, September 1993 and again in March 1994 the

applicants contacted the Court asking why there was a delay in dealing

with the application.

18. On 10 April 1994 the Registrar directed that leave to appeal

against the costs order was not required. The application was referred

to the Full Court to determine the question of the extension of time

and, if granted, to hear the appeal immediately. The applicants were

requested to lodge the relevant documents by 2 May 1994.

19. Subsequently the applicants asked for extensions of this time

limit as they had difficulties in tracing and obtaining the necessary

notes and transcripts from the courts. Extensions were granted on

25 April 1994, 24 May 1994, 16 June 1994, 6 July 1994 and again on

27 July 1994. On 6 October 1994 the Registrar granted the applicants'

request that transcripts of the judgment of Judge Darwall-Smith be

produced at public expense.

20. On various dates (for example in June, September, November and

December 1994) the applicants contacted the respective offices by

telephone and by mail asking for more expeditious handling of their

requests for the production of the necessary documents. By letter

dated 17 June 1994, the Chief Clerk informed the applicants that he had

difficulty in providing the documents requested but that the notes of

the hearing of 3 September 1991 before Judge Clarke were being

prepared. It later transpired, from a response of the Chief Clerk

dated 1 March 1995, that Judge Clarke's notes had been either lost or

did not exist.

21. Another extension of the time limit for the submission of the

relevant documents was granted, upon the applicants' request, on

16 February 1995. On 6 March 1995 some bundles of documents on the

case were lodged with the Court of Appeal's Office. On 29 March 1995

a Lord Justice directed that the application be listed ex parte in the

first instance before the full court. Following a hearing held on 19

June 1995, the Court of Appeal confirmed Judge Darwall-Smith's judgment

of 13 November 1992. The Court concluded that the Judge had not taken

into account the value of the applicants' home and had not exceeded his

jurisdiction.

B. Relevant domestic law

22. Section 17 of the Legal Aid Act 1988 provides as follows:

"(1) The liability of a legally assisted party under an

order for costs made against him with respect to any proceedings

shall not exceed the amount (if any) which is a reasonable one

for him to pay having regard to all the circumstances, including

the financial resources of all the parties and their conduct in

connection with the dispute.

(2) Regulations shall make provision as to the court,

tribunal or person by whom that amount is to be determined and

the extent to which any determination of that amount is to be

final.

(3) None of the following, namely, a legally assisted

person's dwelling house, clothes, household furniture and the

tools and implements of his trade shall

(a) be taken into account in assessing his

financial resources for the purpose of this section,

or

(b) be subject to execution or any corresponding

process in any part of the United Kingdom to enforce

the order,

except so far as regulations may prescribe".

23. Section 18 of the Act, insofar as relevant, provides as follows:

"(1) This section applies to proceedings to which a legally

assisted person is a party and which are finally decided in

favour of an unassisted party.

(2) In any proceedings to which this section applies the

court by which the proceedings were so decided may, subject to

subsections (3) and (4) below, make an order for the payment by

the Board to the unassisted party of the whole or any part of the

costs incurred by him in the proceedings.

(3) Before making an order under this section, the court

shall consider what order for costs should be made against the

assisted party and for determining his liability in respect of

such costs.

(4) An order under this section in respect of any costs

may only be made if

(a) an order for costs would be made in the

proceedings apart from this Act;

(b) as respects the costs incurred in a court of

first instance, those proceedings were instituted by

the assisted party and the court is satisfied that the

unassisted party will suffer severe financial hardship

unless the order is made; and

(c) in any case, the court is satisfied that it is

just and equitable in all the circumstances of the

case that provision for the costs should be made out

of public funds...."

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

24. The Commission has declared admissible the applicants' complaint

that their case, on the matter of costs, was not heard within a

reasonable time.

B. Point at issue

25. The only point at issue is whether the length of the cost

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

26. 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 ..."

27. The proceedings in question concerned the payment of costs

resulting from civil proceedings. The Government and the applicant

accept that these proceedings concerned a dispute over "civil rights

and obligations" and that they, accordingly, fall within the scope of

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

28. However, the Commission recalls that the applicability of one of

the substantive clauses of the Convention constitutes, by its very

nature, an issue going to the merits of the case, to be examined

independently of the attitude of the respondent State (Eur. Court HR,

Acquaviva v. France judgment of 21 November 1995, Series A No. 333-A,

para. 45).

29. The Commission, therefore, has to examine whether Article 6

(Art. 6) of the Convention was applicable to the cost proceedings

between the applicants and their neighbours.

30. The Commission recalls that Article 6 (Art. 6) of the Convention

applies to "contestations" (disputes) over "civil rights and

obligations" recognised under domestic law. It does not in itself

guarantee any particular content for civil rights and obligations in

the substantive law of the Contracting States. Furthermore, Article 6

(Art. 6) of the Convention covers all proceedings the result of which

is decisive for such rights and obligations. A tenuous connection or

remote consequences do not suffice for Article 6 (Art. 6) of the

Convention to come into play (Eur. Court HR, Pudas v. Sweden judgment

of 27 October 1987, Series A No. 125, p. 14, para. 31).

31. Accordingly, in order to establish whether or not the length of

the cost proceedings in the applicants' case falls to be examined under

Article 6 (Art. 6) of the Convention, the Commission must ascertain

whether these proceedings determined, or were an integral part of other

proceedings which determined, a dispute over "rights and obligations"

and, if so, whether such rights and obligations were of a "civil"

character. In this respect the Commission refers to the criteria and

general approach established in the Court's case-law (cf. as a recent

authority Eur. Court HR, Masson and Van Zon v. the Netherlands judgment

of 28 September 1995, Series A No. 327, paras. 48 - 52).

32. In particular, as regards the "civil" character of a right, the

fact that it may be "pecuniary" in nature may be an important element,

but it is not in itself decisive (cf. Eur Court HR, Schouten and

Meldrum v. the Netherlands judgment of 9 December 1994, Series A No.

304, pp. 20 - 21. para. 50).

33. In the present case the substantive dispute between the

applicants and their neighbours, which may have involved the

determination of civil rights and obligations, was decided by Judge

Clarke on 1 May 1991. The dispute about procedural costs arose after

this judgment. Moreover, the outcome of the dispute concerning

liability for costs could not have any relevance to the determination

of the substantive matter in the case.

34. The Commission therefore finds that the cost proceedings in the

present case were not in any way linked to the determination of the

civil rights and obligations, if any, which were the subject matter of

the substantive dispute between the applicants and their neighbours.

35. Turning to the question whether the cost proceedings taken in

isolation determined "civil rights and obligations" and noting that

under the relevant domestic law the courts enjoyed a wide discretion

in deciding on the matter, the Commission nevertheless need not decide

whether what was at stake for the applicants were their "rights" and

"obligations" as in any event they were not of a "civil" character.

36. Thus, in previous cases the Commission has held that decisions

on procedural costs as a subsidiary issue to the merits of a case do

not involve a determination of "civil rights and obligations" and that,

therefore, the proceedings on such issues fall outside the scope of

Article 6 (Art. 6) of the Convention.. (No. 12446/86, Dec. 5.5.88,

D.R. 56, p. 229; and No. 18623/91, Dec. 2.12.91, unpublished).

37. Furthermore, in the first above mentioned case, the Commission

noted that questions of procedural costs might also arise in

proceedings regarding subject matters which are clearly not covered by

Article 6 para. 1 (Art. 6-1) of the Convention and that it would then

not be reasonable to require a special procedure satisfying the

requirements of that provision for the determination of costs. Quite

similar considerations apply to proceedings where the merits of the

case are within the scope of Article 6 para. 1 (Art. 6-1) of the

Convention, but the question of costs is decided separately, after the

decision on the substantive dispute as in the present case or, for

example, after a settlement on the merits, leaving it to the courts to

decide only the liability for procedural costs. There are no grounds

to distinguish between cost proceedings on the basis of the underlying

substantive dispute.

38. The Commission finds, therefore, that the cost proceedings in the

present case did not fall within the scope of Article 6 (Art. 6) of the

Convention.

39. In view of this finding the Commission is not called upon to

determine whether or not the length of the cost proceedings in the

applicants' case was "reasonable" within the meaning of Article 6

para. 1 (Art. 6-1).

CONCLUSION

40. The Commission concludes, by 16 votes to 9, that there has been

no violation of Article 6 para. 1 (Art. 6-1) of the Convention.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

(Or. English)

DISSENTING OPINION OF

MRS. J. LIDDY, MM. G.B. REFFI,

I. BÉKÉS, G. RESS, K. HERNDL

We are of the opinion that in the particular circumstances of the

applicants' case Article 6 of the Convention required that all issues

in the civil proceedings between them and their neighbours, including

the cost matter, had to be determined within a reasonable time.

It is true that in previous cases the Commission has rejected as

incompatible with the Convention ratione materiae complaints under

Article 6 of the Convention concerning cost proceedings (No. 12446/86,

Dec. 5.5.88, D.R. 56, p. 229; and No. 18623/91, Dec. 2.12.91).

However, in these cases the plaintiffs abandoned their substantive

claims and, therefore, the cost proceedings were not a continuation of

a civil dispute as it was in the present case. Moreover, the

complaints in these cases concerned the lack of an oral hearing, and

not the length of proceedings.

The Court has found that the length of the particular

"enforcement" proceedings, under Portuguese law, should be taken into

account when considering a complaint under Article 6 of the length of

civil proceedings (Eur. Court H.R., Silva Pontes judgment of 23 March

1994, Series A No. 286A, p. 14, para. 33). Furthermore, the same

approach was adopted by the Commission as regards execution

proceedings, which were independent and followed the proceedings on the

merits in a civil case, when deciding on the reasonableness of the

length of the proceedings as a whole (No. 15797/89, Comm. Report

6.7.95; and also No. 24295/94, Comm. Report 6.7.95).

In the present case the applicants did not abandon their

substantive claims and, accordingly, the cost proceedings followed the

proceedings on the merits of a dispute which doubtlessly involved the

determination of the applicants' civil rights and obligations.

We therefore tend to the view that in the particular

circumstances of the present case, without necessarily being applicable

with all its normal fair and public trial safeguards (see, for example,

Eur. Court HR, Schuler-Zgraggen v. Switzerland judgment of 24 June

1993, Series A No. 263), Article 6 of the Convention does require that

all stages of the applicants' civil dispute, including the cost matter,

be concluded within a reasonable time. Such an approach is consonant

with the Contracting States' obligation under the Convention to secure

the real and practical enjoyment of the rights enshrined therein. The

amount which was at stake for the applicants in the cost proceedings

was at least £ 6,000 whereas their income was apparently modest, legal

aid having been granted to them. Therefore, in practical terms the

proceedings were not over for the applicants until the matter of costs

was not resolved.

If this approach was adopted by the majority, it could have found

a violation of Article 6 as even the length of the cost proceedings

taken alone was far from "reasonable" in the present case.

Thus, significant periods of delay are imputable to the State.

A delay between February and November 1992 was apparently due to a

factual misunderstanding affecting the assessment of the applicants'

means, which was admitted by the Department of Social Security. Also,

it took more than 14 months, between January 1993 and 10 April 1994,

for the Registrar of the Court of Appeal to find that leave to appeal

was not required in the applicants' case.

We could then leave open the question of the extent to which, if

any, the delay between April 1994 and May 1995, which was caused by the

applicant's difficulties in tracing and obtaining the necessary notes

and transcripts from the courts, was attributable to the applicants or

to the Government, having regard to the fact that the applicants were

acting in person and without legal aid.

We consider that no convincing explanation has been advanced by

the respondent Government for at least the aforementioned delays of

almost two years.

(Or. English)

DISSENTING OPINION OF

MR. ROZAKIS, MRS. THUNE AND MR. LOUCAIDES

We are of the opinion that the case-law of the Commission to the

effect that cost proceedings were outside the scope of Article 6 of the

Convention was linked to the old and narrower interpretation of

Article 6 before the Salesi judgment (Eur. Court HR, Salesi v. Italy

judgment of 26 February 1993, Series A No. 257-E).

The question of liability for the costs incurred by the other

party to civil proceedings is a pecuniary matter. It is of a private

character, there being no "public" elements. Accordingly, it concerns

"civil rights and obligations" and Article 6 applies.

If this approach was adopted by the majority, it could have found

a violation of Article 6. In this respect we join the dissenting

opinion of Mrs. J. Liddy, MM. G.B. Reffi, I. Békés, G. Ress, K. Herndl.

(Or. English)

DISSENTING OPINION OF MR. E. BUSUTTIL

Unlike the majority I am of the opinion that cost proceedings

come fairly and squarely within the ambit of Article 6 para. 1, since

they are necessarily linked to the determination of the civil rights

and obligations which constitute the subject-matter of a substantive

dispute between the parties.

Article 6 requires, in my view, that all stages of a dispute

relating to civil rights and obligations, including the matter of

costs, should be definitively resolved within a reasonable time. This

becomes a matter of crucial importance in the United Kingdom where

legal costs are notoriously high. Indeed, the applicants in the present

case were finally condemned to pay a sum of £6,000 by way of costs (a

not inconsiderable sum when one has regard to the fact that the

applicants had initially been granted legal aid) after having lived

with their relentless burden on their minds for the inordinately long

period of four years for the cost proceedings alone.

In these circumstances, I find that there has been a violation

of Article 6 para. 1 in the instant case.

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ROBINS v. THE UNITED KINGDOM

ROBINS v. THE UNITED KINGDOM

LEXI