Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 33671/96

by Owen OYSTON

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 10 September 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 12 September 1996

by Owen OYSTON against the United Kingdom and registered on

5 November 1996 under file No. 33671/96;

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 British citizen born in 1934. He is

represented before the Commission by Messrs David Price, solicitors,

London. The facts of the application, as submitted by the applicant,

may be summarised as follows.

The applicant, a well-known businessman, wished to bring a

defamation action against three individuals who were, or had been,

members of Parliament and/or businessmen.

The time-limit for bringing a defamation action is three years

from the date on which the cause of action accrued. That period may,

however, be extended by up to one year by Section 32A of the Limitation

Act 1980, which provides as follows:

"Where a person to whom a cause of action for libel or slander

has accrued has not brought such an action within the period of

three years ... because all or any of the facts relevant to that

cause of action did not become known to him until after the

expiration of that period, such an action -

(a) may be brought by him at any time before the expiration of

one year from the earliest date on which he knew all the

facts relevant to that cause of action; but

(b) shall not be so brought without the leave of the High

Court."

The three year limit for the applicant's action had expired, but

on 23 or 24 September 1991, the applicant received certain tapes, and

it was considered that the dates of receipt were the earliest dates on

which he knew all the facts relevant to the cause of action. On

15 September 1992 the applicant applied to the Practice Master at the

High Court with a view to setting in motion his application for leave

to commence his action for defamation. Because of the danger of the

question of leave not being considered before expiry of the time-limit

of one year from 23 or 24 September 1991 if the application were heard

inter partes, the applicant asked the Practice Master to advise on the

appropriate procedure in the immediate circumstances. The Practice

Master decided to consider the matter overnight, and on

16 September 1992, he told the applicant's solicitors that there was

no objection to the application for leave being made ex parte. The ex

parte hearing took place on 18 September 1992, and leave was granted.

No reasons were given.

Once the defendants had been served with the proceedings, they

applied to have the Practice Master's order set aside on the ground

that the decision to proceed ex parte was an irregularity. On

30 July 1993 Mr. Justice Ognall set aside the Practice Master's order

of 16 September 1992. The applicant appealed.

On 1 November 1995, the Court of Appeal dismissed the applicant's

appeal. Lord Justice Henry, giving the first judgment, recalled that

the purpose of Section 32A of the Limitation Act 1980 was to guard

against the injustice which could be caused if a plaintiff only

discovered facts relevant to his cause of action after the three year

period had expired. He further noted that Order 32, Rule 9 (3) of the

Rules of the Supreme Court provides that an "originating summons by

which an application for leave under ... Section 32A is made shall be

in Form No. 10 ...". Form 10 requires a summons to be made on notice,

and fourteen days is suggested as the time to be given for

acknowledgement of service. Lord Justice Henry noted that no reasons

had been given for the grant of leave by the Practice Master, and

considered that the likelihood was that he regarded the application as

straightforward. However, Lord Justice Henry continued, it was

difficult to see how the Practice Master could have regarded it as

straightforward if he had been told that the tapes in question were the

subject of a subpoena in separate proceedings, and the court in those

proceedings had not consented to their use; that a conspiracy claim

which formed part of the original action (and which was struck out by

Mr. Justice Ognall and not appealed) was vulnerable, and that the

applicant's knowledge of the facts in respect of part of the claim

dated not from receipt of the tapes, but from a date in 1989.

The first question on the appeal was whether the decision of the

Practice Master to proceed ex parte was an irregularity, and if so

whether the judge was acting within his discretion (if he had one) when

he struck out the Master's leave.

Lord Justice Henry found that the grant of leave by the Practice

Master was undoubtedly discretionary, as otherwise the words "may" and

"but" in the phrase "an action ... may be brought; but ... shall not

be brought without the leave of the High Court" would not make sense.

He recalled that judicial discretion is broad: it is a discretion to

do what is just in all the circumstances, subject only to an overriding

duty to exercise any discretionary power in a manner consistent with

the purpose of the enactment in question. In connection with the

question of whether leave should have been given ex parte, Lord Justice

Henry found that the rules did indeed require an application for leave

under Section 32A to be made on notice, and there was in any event no

need for the Master to proceed ex parte: a short-notice inter partes

hearing could have been set up before the judge, for which there was

ample time. The judge could then have granted leave to issue the writ

as a holding exercise, without regard to the merits, on the plaintiff's

undertaking to discontinue the action and pay the defendant's costs if,

after considering the merits, the Court found that leave should not

have been given. Thus the decision to proceed was an irregularity, and

a serious one, and the judge had discretion to set it aside.

Lord Justice Henry noted that the judge had regarded the non-

disclosure of a series of matters as an irregularity "seriously

infecting" the proceedings, and that the judge was therefore entitled

to set aside those irregular proceedings. As to the judge's decision

to exercise his discretion to set aside the leave which was wrongly

obtained ex parte, the principle was that, pursuant to Order 2,

Rule 1 (2), a grant of leave obtained irregularly stands until it is

set aside. It was pointed out that all the matters on which the judge

relied in setting aside that grant of leave - non-disclosure of the

sub-poena, failure to explain the failure to include one individual in

the proceedings, inclusion of the "old" alleged libel in the

proceedings, and the question of delay - were relevant to the decision

to strike out. With particular reference to the issue of delay, it was

considered that the essence of a genuine complaint in libel is prompt

action, particularly in those who need leave from the Court because

their cause of action is a stale one. The judge had not made any

findings as to whether the delay had been deliberate so as to enable

the applicant to air his grievances to the media in a way he would not

have been able to had proceedings been pending, but he had found that

the facts relating to the delay, and an adequate explanation for it,

should have been put to the master.

After finding that there was clear prejudice to the defendants

from the grant of leave which the judge was entitled to take into

consideration, Lord Justice Henry found that the judge was entitled to

make the findings he did on the material before him.

Lord Justice Pill, who agreed with Lord Justice Henry, underlined

that the relevant discretion for the Court of Appeal was the discretion

under Order 2 Rule 1 (2) of the Rules of the Supreme Court (that is,

the discretion exercised by the judge to set aside the grant of leave)

rather than the initial discretion under Section 32A (which was

exercised by the Practice Master, but which would have been better

dealt with by a judge).

The applicant applied to the House of Lords for leave to appeal

to it. Leave was refused on 14 March 1996.

COMPLAINTS

The applicant alleges a violation of Article 6 of the Convention.

He claims that he was irrevocably denied his right to protection and

vindication of his reputation in a court of law. Further, he claims

that this denial came about through his having followed the procedure

prescribed by a judge who was designated by the court to superintend

its business and to give directions on questions of practice and

procedure.

THE LAW

The applicant alleges a violation of Article 6 (Art. 6) of the

Convention which provides, so far as relevant, as follows.

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

..., everyone is entitled to a fair and public hearing."

The applicant complains that the setting aside of the Practice

Master's grant of leave to proceed with the action denied him access

to court, and that the denial was all the more serious because the

applicant approached the Practice Master to ask how best to proceed,

and, having acted in accordance with the advice, was subsequently

deprived of the possibility of a determination of the merits of the

case.

The Commission recalls that the European Court of Human Rights

has considered whether limitation rules impair the very essence of the

right of access to court (Eur. Court HR, Stubbings v. the United

Kingdom judgment of 22 October 1996, Reports-1996, paras. 46-57).

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

"right to a court", of which the right of access, that is, the right

to institute proceedings before a court in civil matters, constitutes

one aspect.

However, this right is not absolute, but may be subject to

limitations; these are permitted by implication since the right of

access by its very nature calls for regulation by the State. In this

respect, the Contracting States enjoy a certain margin of appreciation,

although the final decision as to the observance of the Convention's

requirements rests with the Convention organs. They must be satisfied

that the limitations applied do not restrict or reduce the access left

to the individual in such a way or to such an extent that the very

essence of the right is impaired. Furthermore, a limitation will not

be compatible with Article 6 para. 1 (Art. 6-1) if it does not pursue

a reasonable relationship of proportionality between the means employed

and the aim sought to be achieved (see the above-mentioned Stubbings

v. the United Kingdom judgment, para. 50).

The Commission notes that in the present case, there is no

question of an absolute time-limit rigidly applied to the facts of the

case: Section 32A of the Limitation Act 1980 provides for the

possibility of an extended period which runs from the date of knowledge

of relevant facts.

The applicant argues, in essence, that because he applied for

leave to bring his action within one year of his knowledge of relevant

facts, leave ought to have been given - either (as initially happened)

ex parte by the Practice Master, or alternatively by the judges once

the case was being heard inter partes.

The Commission further notes that it is clear from the judgments

of the Court of Appeal that the question of whether leave should be

granted to pursue an action after the expiry of the initial limitation

period is a matter for the discretion of the judge. The Commission

finds this position wholly compatible with the good administration of

justice (see para. 51 of the above-mentioned Stubbings v. the United

Kingdom judgment), provided that the results in the individual case do

not give rise to injustice or arbitrariness.

It is true, as the applicant points out, that, as a result of

what transpired to be a wrong opinion in law by the Practice Master,

no judge ever determined the application for leave to bring the action

within the extended period of one year. Indeed, the effect of a wrong

determination of the law at first instance may often be to deprive a

party to litigation of a particular procedural possibility or,

depending on the case, of success in the litigation. In the present

case, as both the first instance judge and the Court of Appeal pointed

out, at least part of the responsibility for the Practice Master's

error lay with the applicant: by not disclosing all the circumstances

and by including reference to a conspiracy action for which the leave

of the court was not needed, the applicant may well have led the

Practice Master into believing that the application was a mere

formality when in fact there were real obstacles to the granting of

leave under Section 32A.

Overall, the Commission finds that the very essence of the

applicant's right of access to court was not impaired, and the

restrictions imposed on him - that is, the setting aside of the

Practice Master's irregular grant of leave under Section 32A - pursued

a legitimate aim and were proportionate to the aim pursued.

It follows that the application is 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 J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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OYSTON v. THE UNITED KINGDOM

OYSTON v. THE UNITED KINGDOM

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