Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 33745/96

by Norman SCARTH

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 21 May 1998, 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

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 2 February 1996

by Norman SCARTH against the United Kingdom and registered on

12 November 1996 under file No. 33745/96;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

6 August 1997 and the observations in reply submitted by the

applicant on 1 October 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen, born in 1925 and living in

Leeds. The facts of the case may be summarised as follows:

A. Particular circumstances of the case

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.

By reason of Order 19, Rule 3(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. Under the rules, arbitration hearings

are usually held in private, although the Arbitration Hearing Form

specifically invites either party to apply for the hearing to be in

public.

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.

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 arbitration hearing took place in private on 16 January 1995.

The applicant states that he was not allowed to present his defence

properly. The plaintiff was allegedly allowed to call witnesses whose

identity had not been disclosed to the applicant within the time limits

stipulated by the Court Rules and was also allowed to produce documents

in evidence which had not been sent to the applicant in the requisite

time limit prior to the hearing. On 31 January 1995 the District Judge

made his award in writing, finding in favour of the plaintiff.

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(1) of the

County Court Rules 1981.

The hearing of the application to set aside took place before a

Recorder in private. A lay person, who was to accompany the applicant,

was denied access to the Court having arrived late. The Recorder took

the view that the so-called "technical breaches" of the rules, which

were accepted by the plaintiff`s solicitors, did not amount to

misconduct. 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.

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.

B. Relevant domestic law

Order 19, Rule 3(1) of the County Court 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.

Order 19, Rule 6, para. 3 of the County Court Rules 1981 reads

as follows:

"Where proceedings stand referred to arbitration, the following

directions shall take effect-

(a) each party shall not less than 14 days before

the date fixed for the hearing send to every

other party copies of all documents which are in

his possession and on which that party intends

to rely at the hearing;

(b) each party shall not less than 7 days before the

date fixed for the hearing send to the court and

to every other party ... a list of the witnesses

whom he intends to call at the hearing.

Order 19, Rule 7, paras. 1, 3 and 4 of the above rules reads 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;..."

Order 19, Rule 8, para. 1 of the above rules reads as follows:

"Where proceedings are referred to arbitration, the award

of the arbitrator shall be final and may only be set aside

[where it was given in the absence of a party] or on the

ground that there has been misconduct by the arbitrator or

that the arbitrator made an error of law."

Order 13, Rule 1, para. 10 of the above rules reads as follows:

"An appeal shall lie to the judge from any order made by the

district judge on the application and the appeal shall be disposed of

in chambers unless the judge otherwise directs".

COMPLAINTS

Relying on Article 6 para. 1 of the Convention the applicant

complains that none of the hearings was fair.

He claims that at the preliminary hearing the District Judge read

documents from the plaintiff which the applicant had not seen, refused

to allow the applicant to produce his own documents and refused to

strike out the case on the plaintiff`s failure to attend as he could

have done.

At the arbitration hearing the District Judge allegedly did not

allow the applicant to properly put forward his case, breached the

County Court Rules as witnesses were called and documents were produced

by the plaintiff, which had not been disclosed to the applicant in the

appropriate time limit, prior to the hearing. He also allowed witnesses

to behave in an intimidatory manner.

At the hearing for the arbitration award to be set aside, even

though the plaintiff`s solicitor admitted a technical breach of the

court rules, the Recorder did not give sufficient weight to this. The

Recorder also referred to it as an appeal instead of an application to

be set aside, and generally did not give the impression of being fair.

The applicant also claims that the law was breached as his lay advisor

was refused permission to enter the hearing by the usher as he arrived

slightly late.

With respect to the Court of Appeal hearing the applicant states

that it was not what he expected according to the guidelines he

received from the Court. He was questioned in detail for which he was

not prepared and considered this as unfair.

The applicant also complains that he received no public hearing

within the meaning of Article 6 at any stage of the proceedings.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 2 February 1996 and registered

on 12 November 1996.

On 21 May 1997 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on 6 August

1997, after an extension of the time-limit fixed for that purpose. The

applicant replied on 1 October 1997.

THE LAW

1. The applicant complains that, in spite of his express requests,

he was not granted a public hearing within the meaning of Article 6

(Art. 6) of the Convention.

Article 6 (Art. 6) of the Convention, insofar as relevant,

provides as follows:

"1. In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to a

fair and public hearing ... . Judgment shall be pronounced

publicly but the press and public may be excluded from all or

part of the trial in the interest of morals, public order or

national security in a democratic society, where the interests

of juveniles or the protection of the private life of the parties

so require, or to the extent strictly necessary in the opinion

of the court in special circumstances where publicity would

prejudice the interests of justice."

The Government accept that Article 6 para. 1 (Art. 6-1) of the

Convention is applicable in this case.

The Government submit that the applicant has not exhausted all

domestic remedies available, as he was entitled to appeal against the

decision of the District Judge (the Arbitrator) to hold the arbitration

hearing in private, pursuant to Order 13, Rule 1(10) of the County

Court Rules.

The Government also submit that the hearing of the arbitration

in private was not in breach of Article 6 (Art. 6) as exclusion of the

public was necessary in 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 legal 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. The

Government also compare the reasoning to hold the arbitration hearings

in private (possible friendly settlement) with that of the Commission

and its hearings in chambers.

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.

The applicant considers that he did exhaust domestic remedies:

he applied for the first instance hearing to be in public, and raised

the matter in his application for leave to appeal. He rejects the

Government`s reasons for not holding a hearing in small claims cases

as "sophistry" and points out that the Court of Appeal hearing was no

more than consideration of whether to grant leave to appeal.

As to the Government`s claim that the applicant should have

appealed the refusal to hold the hearing in private, the Commission

recalls that the purpose of the rule of exhaustion of domestic remedies

is to enable the State to have the opportunity to redress the alleged

damage by domestic means within the framework of its own legal system

before proceedings are brought in an international court (see

No. 12945/87, Dec. 4.4.90, D.R. 65, p. 173). The Commission further

recalls that where there is a choice of several remedies open to the

applicant, Article 26 (Art. 26) of the Convention must be applied in

a manner corresponding to the reality of the applicant`s situation in

order to guarantee him or her effective protection of rights and

freedoms set forth in the Convention and that it is in the first place

for the applicant to select which legal remedy to pursue (see No.

19092/91, Dec. 11.10.93, D.R. 75, p. 207 with further reference on p.

215). In the present case, the applicant raised before the Court of

Appeal the matter of the public hearing, and was given the clear reply

that the judge was entitled not to hold the hearing in public.

In the light of the Court of Appeal's finding that, in effect,

the absence of a public hearing is compatible with domestic law, the

applicant cannot be said to have failed to exhaust domestic remedies

by not appealing the decision not to hold the hearing in public.

The Commission considers, in the light of the parties'

submissions, that this part of the case raises complex issues of law

and fact under the Convention, the determination of which should depend

on an examination of the merits. The Commission concludes, therefore,

that this part of the application is not manifestly ill-founded, within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No

other grounds for declaring it inadmissible have been established.

2. The applicant complains under Article 6 (Art. 6) of the

Convention that none of the hearings were fair, in particular that he

was not able to present his case properly, that the rules about calling

witnesses and bringing other evidence were breached in that inadequate

disclosure was made to the applicant prior to the hearings, within the

required time-limit. The applicant alleges misconduct by the District

Judge as he refused to strike the case out as he could have and allowed

witnesses to misbehave towards the applicant, and also by the Recorder

as he was generally not fair and did not give sufficient weight to the

breaches of the rules. Also, the Court Usher did not allow the

applicant`s lay adviser, arriving slightly late, to enter the Chamber

in which the hearing was held.

The Commission first recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention. The Commission refers, on this point, to its constant case-

law (see, for example No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45;

No. 19890/92, Dec. 3.5.93, D.R. 74 p. 234).

In assessing the fairness of proceedings the Commission must

consider them as a whole and must ascertain that, in their entirety,

they were fair (see, inter alia the Stanford v. the United Kingdom

judgment of 23 February 1994, Series A no. 282-A, p. 10, para. 24). In

particular, the Commission must ascertain that every party to such

proceedings has a reasonable opportunity of presenting his or her case

to the court under conditions which do not place him or her at

substantial disadvantage vis-a-vis the other party (see inter alia

No. 10938/84, Dec. 9.12.86, D.R. 50, p. 115).

The Commission notes that the Court of Appeal dealt with each of

the applicant`s complaints and found no substance in any of them. The

Commission notes, in particular, that the Court of Appeal found that

the "technical breaches" of the County Court Rules as to witnesses did

not affect the fairness of the proceedings, given the informal nature

of the arbitration proceedings.

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

Convention does not lay down any rules on the admissibility of evidence

as such, which is primarily a matter for regulation under national law

(in the criminal context, see Schenk v. Switzerland judgment of 12 July

1988, Series A no. 140, p. 29, para. 46). It was therefore in the first

place for the domestic courts to determine which evidence should be

admitted, provided that, no unfairness occured, within the meaning of

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

that under the Convention, there is no necessary link between the

"technical breaches" of the rules and the fairness of proceedings

within the meaning of Article 6 (Art. 6) of the Convention. The

question is whether the proceedings were fair, and the Commission

considers that none of the applicant`s allegations as to unfairness

constitute factors of such a decisive nature as to affect the fairness

of the proceedings as a whole. Accordingly, the Commission considers

these complaints manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission,

unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaint that he received no public hearing within

the meaning of Article 6 para. 1 of the Convention; and

by a majority,

DECLARES INADMISSIBLE the remainder of the application.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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SCARTH v. THE UNITED KINGDOM

SCARTH v. THE UNITED KINGDOM

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