Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27435/95

by James Lockie THAW

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 21 May 1997, the following members being present:

Mrs. J. LIDDY, President

MM. 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

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 21 March 1994 by

James Lockie THAW against the United Kingdom and registered on 31 May

1995 under file No. 27435/95;

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

27 November 1996 and the observations in reply submitted by the

applicant on 22 January 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1923 and resident in

Gateshead, Tyne and Wear. The facts as submitted by the parties may be

summarised as follows.

In March 1988, the applicant agreed to sell his house at

7 Kirkstone Gardens ("the property") in an attempt to avoid bankruptcy.

However, on the date of completion, 15 July 1988, the applicant's

solicitor advised him not to complete, since a bankruptcy petition had

been presented on 23 February 1988 and all his property was therefore

subject to bankruptcy proceedings. The applicant had already given the

intended purchasers, Mr. and Mrs. F, the keys and they had moved into

the property.

On 5 November 1988, the Alliance and Leicester Building Society,

which had a mortgage over the property, ordered the applicant to give

possession of the property within 28 days but did not then pursue

proceedings. Mr. and Mrs. F therefore continued to occupy the property

without having purchased it and without paying rent.

On 1 August 1989, Mr. and Mrs. F took action to obtain specific

performance of the contract for sale of the property. By letter dated

10 November 1989 the applicant's solicitors applied for legal aid to

defend these proceedings. The applicant wanted the property to be sold

on the open market by either the Building Society or the trustee in

bankruptcy since he believed that a better price would now be achieved

than the one he had agreed with Mr. and Mrs. F in March 1988. On

8 December 1989 legal aid was refused on the basis that inter alia the

applicant had not shown reasonable grounds for taking, defending or

being party to the proceedings.

On 18 May 1990 the Newcastle County Court ordered the property

vested in the trustee in bankruptcy to be transferred to Mr. and Mrs. F

upon payment of £34,000 plus accrued interest. On 20 February 1991, the

Registrar of the High Court of Justice in Bankruptcy refused the

applicant leave to appeal from that decision. On 30 April 1991 the

applicant lodged an appeal from the Registrar's order by way of an

application to a single High Court judge of the Chancery Division. On

5 July 1991, the applicant appeared before the Vice Chancellor who

overturned the order of 20 February 1991 and granted the applicant

leave to appeal out of time against the order of 18 May 1990. On

12 November 1992 a single High Court judge upheld the order of

Newcastle County Court of 18 May 1990 and dismissed the applicant's

appeal. The applicant appealed to the Court of Appeal, the appeal

being set down on 2 March 1993. In December 1993 the Civil Appeals

Office, having been in contact with the trustee in bankruptcy, informed

the applicant that the trustee in bankruptcy did not consent to the

appeal proceedings. The applicant sent a letter to the Civil Appeals

Office, received on 6 January 1994, that made representations about his

rights. On 13 January 1994 the applicant was informed that the Civil

Appeals Office would liaise further with the trustee. On 8 March 1994

the trustee further confirmed that consent to the appeal proceedings

would not be forthcoming and on 9 March 1994 the trustee joined the

other parties' (Mr. and Mrs. F) request that the applicant's

application for leave to appeal be dismissed. The Registrar of the

Civil Appeals Office declined to authorise disposal of the matter by

consent until further consideration could be given to whether the

trustee was fully competent to join in a request for dismissal of the

application. On 9 October 1996 a single Lord Justice of the Court of

Appeal dismissed, by consent, the applicant's application for leave to

appeal.

COMPLAINTS

The applicant complains of the length of proceedings under

Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 21 March 19994 and registered

on 31 May 1994.

On 26 June 1996 the Commission decided to communicate the

applicant's complaint concerning the length of the proceedings to the

respondent Government and to declare the remainder of the application

inadmissible.

The Government's written observations were submitted on

27 November 1996, after an extension of the time-limit fixed for that

purpose. The applicant replied on 22 January 1997.

THE LAW

The applicant complains that the length of proceedings exceeded

a reasonable time, in violation of Article 6 para. 1 (Art. 6-1) of the

Convention.

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

reasonable time ..."

The Government consider that the applicant had no actionable

claim in relation to the property.

The Government state that taking into account the complexity of

the case, the proceedings, which they consider as commencing on 18 May

1990, were determined within a reasonable time.

The Commission notes that the proceedings began on 1 August 1989,

which was the date when Mr. and Mrs. F sought specific performance of

the contract for sale of the property. On 9 October 1996 a single Lord

Justice of the Court of Appeal dismissed the applicant's application

for leave to appeal against the decision of the High Court of

12 November 1992, thus terminating the proceedings.

The total duration of the proceedings was seven years and two

months.

The Commission considers that, in the light of the criteria

established in the case law of the organs of the Convention concerning

"reasonable time" (complexity of the case, conduct of the parties and

the conduct of the authorities dealing with the case), the application

raises serious issues of fact and law, including the question of the

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

cannot be resolved at the present stage of the examination of the

application, but call for an examination of the merits.

For these reasons, the Commission, unanimously,

DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

Menu

THAW v. THE UNITED KINGDOM

THAW v. THE UNITED KINGDOM

LEXI