Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 36744/97

by Ian COOK

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 4 March 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. 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 6 May 1997 by

Ian COOK against the United Kingdom and registered on 27 June 1997

under file No. 36744/97;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a 47 year old British citizen, living in Exeter.

The facts of the case, as submitted by the applicant, may be summarised

as follows.

In October 1991 the applicant was served a notice by a company

dealing with water distribution ("the company") of its intention to lay

a water distribution pipeline through his land. The applicant, through

a valuer, assessed his damage at £150,000.00. The company offered

£5,806.00 and the applicant referred the matter to the Lands Tribunal

claiming £70,000.00, in light of the potential value of the land and

the development projects he had for the future.

On 3 February 1994, the company made a "sealed bid offer" of

£15,000.00, warning the applicant of the likely consequences as to

costs of the proceedings if he refused to accept it. The offer was not

accepted.

In October 1993 a pre-trial review was held before the Registrar

of the Lands Tribunal where the applicant for financial reasons

objected to the three witnesses asked for by the company and was

overruled.

In September 1994, the case was heard by the Lands Tribunal

(Mr M St J Hopper). The hearing lasted five days, three expert

witnesses were called for each side. On the last day an additional

witness was called who gave evidence as to the materials used, the

condition of the pipe and its performance. On 16 February 1995 the

Lands Tribunal found that the land had no development value and awarded

compensation of £4,800.00. As the applicant had refused to accept the

proposed settlement offer of 3 February 1994, he was also ordered on

28 June 1995 to pay the costs of the proceedings.

The applicant appealed the order of the Lands Tribunal and

applied to the Court of Appeal for leave to adduce further evidence.

On 11 November 1996 the Court of Appeal refused leave to adduce further

evidence and dismissed the appeal. The Court found that no prior leave

was required to be given before a witness of fact gives evidence, that

the compensation awarded was adequate and, indeed in accordance with

the applicant`s witness statement if the land had no development value

(as found by the Lands Tribunal). It also found that costs had been

properly awarded against the applicant, in accordance with the Lands

Tribunal Rules 1975 and Land Compensation Act 1961.

On 12 December 1996 the Court of Appeal refused leave to appeal

to the House of Lords.

As to costs, the amount was determined on 19 February 1997 by the

Registrar of the Lands Tribunal. On the applicant's application the

taxation review was made by the Registrar on 26 March 1997 and the

taxed costs in the amount of £44,359.00 were confirmed. The applicant

appealed and was heard by the President of the Lands Tribunal. The

appeal was dismissed by the President on 16 May 1997 and the costs were

confirmed as taxed.

The applicant did not pay, and in October 1997 a statutory demand

for the outstanding costs was made. The money was again not paid, and

a bankruptcy petition was presented.

COMPLAINTS

The applicant complains under Article 6 of the Convention about

the court's decisions and alleges a breach of his right to a fair

hearing by an impartial tribunal. The applicant claims that he was not

on equal terms with the company as they had experienced lawyers and

were able to engage an expert London barrister, that the case was

decided by only one member of the Lands Tribunal who is not even a

judge, that he was not informed on the possibility of legal aid and

that an extra witness was called without prior written notice. The

applicant complains also about the costs awarded against him. He

alleges partiality in that the same person, the Registrar of the

tribunal, decided in the pre-trial review and allowed three witnesses

for each party, and later determined the costs of those witnesses.

The applicant also alleges a breach of Article 1 of Protocol

No. 1 claiming that the Lands Tribunal failed to explore fully the

effects of the pipeline on his land and that the company should at

least enter into some written agreement with him which would clearly

outline the deprivations of his right. The applicant complains that the

UK Government regulatory body (OFWAT) does not impose an obligation on

the company to agree a written easement with him.

THE LAW

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

Convention about the unfairness of proceedings and partiality of the

tribunal because he is not legally qualified and was not informed on

the possibility of legal aid, because a witness was called without

prior notice and because his case was decided by only one member of a

tribunal, who is not even a judge. The applicant also complains that

costs were awarded against him and that the Registrar was biased as he

determined costs after he had previously determined the number of

expert witnesses.

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 within a reasonable time by an

independent and impartial tribunal established by law."

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 eg. No. 5258/71, X v. Sweden, Dec. 8.2.73, Collection 43, pp.

71, 77; No. 7987/77, X v. Austria, Dec. 13.12.79, D.R. 18, pp. 31, 45;

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

In the present case, the applicant complains to a large extent

about the outcome of the case in which his attempt to obtain more

compensation failed. The applicant also complains about not being on

equal grounds with the other party as he had no counsel and was not

informed on legal aid and about the partiality of the tribunal.

However, even if these allegations could raise an issue under the

Convention, the Commission notes that they were not raised on appeal

before the Court of Appeal. It follows that they must be rejected for

non-exhaustion of domestic remedies under Articles 26, 27 para. 3

(Art. 26, 27-3) of the Convention.

The allegations concerning the extra witness who was called

without prior notice were rejected by the Court of Appeal on the ground

that prior notice was not necessary. 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, every party to such

proceedings must have 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). In the present case, the

applicant had a lengthy hearing at the Lands Tribunal which resulted

in a 39 page decision, provided expert witnesses and was able to

present his allegations on appeal. It is true that an extra witness was

called by the tribunal but there is no indication that this witness was

at all decisive in the case. The Court of Appeal noted that the

applicant could also have asked for an adjournment and, in any event,

the case was adjourned for six weeks after the hearing of that extra

witness and the applicant asked for no other witnesses. The Commission

finds that the applicant`s allegations as to the extra witness called

do not affect the fairness of the proceedings as a whole and must be

rejected as manifestly ill-founded.

The applicant also complains that the Registrar was not impartial

as he decided on the number of expert witnesses in the pre-trial review

and also determined costs later on. However, even if these allegations

could raise an issue under Article 6 (Art. 6) of the Convention, the

Commission notes that the costs were revised on the applicant's appeal

by the President of the Lands Tribunal on 16 May 1997. Any possible

deficiencies were therefore remedied and, in any event, it appears that

the present allegations were not raised in the proceedings for the

taxation review by the Registrar nor on appeal before the President of

the Lands Tribunal. This complaint must therefore be rejected as

manifestly ill-founded too.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant complains under Article 1 of Protocol No. 1

(P1-1) that he is deprived of peaceful enjoyment of his possession as

the pipeline was laid over his land in the exercise of compulsory

statutory powers rather than pursuant to a written easement agreement

which could have defined the limits of the area which could have been

affected by the pipeline and that the Lands Tribunal failed to fully

explore the effects of the pipeline on his land.

Article 1 of Protocol No. 1 (P1-1) reads as follows:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of his

possessions except in the public interest and subject to the

conditions provided for by law and by the general principles of

international law.

The preceding provisions shall not, however, in any way impair

the right of a State to enforce such laws as it deems necessary

to control the use of property in accordance with the general

interest or to secure the payment of taxes or other contributions

or penalties."

The Commission first notes that the allegations about the Lands

Tribunal fall rather under Article 6 (Art. 6) of the Convention and

have been dealt with above already.

The Commission further notes that the laying of a pipeline was

an interference with the applicant's peaceful enjoyment of his

possessions and that it must therefore be justified by reference to the

requirements of Article 1 of Protocol No. 1 (P1-1).

The Commission considers that there is a clear general interest

in permitting statutory undertakings such as to lay pipelines. Further,

in the present case, law provides for the payment of compensation for

depreciation of the land's value. Whilst the Lands Tribunal did not

agree with the applicant as to whether his land had development value,

there is no dispute as to the depreciation which had occurred in the

absence of development value, for which the applicant received the

compensation.

Even if it is true, as the applicant contends, that it would have

been preferable if an easement agreement had been reached between the

parties, the company`s failure to seek or enter into such an agreement

cannot affect the position in the present case.

Finally, the Commission would note that the company has now

brought enforcement proceedings against the applicant. These

proceedings are a consequence of the applicant`s failure to accept the

"sealed bid offer" too, and do not affect the position as to

compensation in the present case, either.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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COOK v. THE UNITED KINGDOM

COOK v. THE UNITED KINGDOM

LEXI