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 26 June 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 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 1923 and resident in

Gateshead, Tyne and Wear. The facts as submitted by the applicant 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, in particular the Legal Aid Board

stated that:

i. the applicant was unable to complete the purchase for purely

technical reasons and that there was no reason why he should

oppose completion now if the trustee did not object and the Court

permitted;

ii. since the Building Society had not yet obtained possession and

the Court had not yet ordered Mr. and Mrs. F to give possession,

the Building Society was not in a position to sell the property

and owed no duty to the applicant in regard to such a sale;

iii. opposing completion could open the applicant's estate up to an

action for damages for breach of contract and in any event there

was nothing to suggest that the sale of the property by other

means would be sufficient to meet the applicant's liabilities.

On 18 May 1990 the Newcastle County Court ordered the property

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

upon payment of £34,000 plus accrued interest on £21,000. On

20 February 1991, the Registrar of the High Court of Justice in

Bankruptcy refused the applicant leave to appeal from that decision.

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. On 12 November 1992 the High Court upheld

the order of Newcastle County Court of 18 May 1990. The applicant

appealed to the Court of Appeal. By letter dated 23 September 1994,

the Court Administrator's office wrote to the applicant stating that

a test case was pending before the Court of Appeal, that the Registrar

of Civil Appeals (a judicial officer) had directed that all cases that

raised the point should remain in abeyance until the test case was

decided and that because of pressure on the list, this could take some

time.

In June 1994 the property was sold. On 1 March 1995, the trustee

wrote to the applicant to enquire as to the current situation with

regard to the applicant's appeal, stating:

"I do not know whether you are aware, but the property at

7 Kirkstone Gardens, Newcastle upon Tyne was sold in June

1994. Surely this must complicate matters and I think it

must be difficult to unravel this situation now". (Original

emphasis).

COMPLAINTS

1. The applicant complains that he was denied legal aid for the

purposes of the bankruptcy proceedings relating to the sale of his

property at 7 Kirkstone Gardens.

2. The applicant complains of the length of proceedings under

Article 6 of the Convention.

THE LAW

1. The applicant complains that he was denied legal aid for the

proceedings contrary to Article 6 (Art. 6) of the Convention. Article

6 (Art. 6), insofar as relevant provides.

"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 recalls that Article 6 (Art. 6) of the Convention

does not guarantee a right to legal aid in civil proceedings and that

the means by which the State ensures effective access to civil courts

is therefore within its margin of appreciation (Eur. Court H.R. Airey

v. Ireland judgment of 9 October 1979, Series A no. 32, p. 15, para.

26, No. 10871/84, Dec. 10.7.86, D.R. 48 p. 154). In particular, the

Commission recalls that even where legal aid may be available for

certain types of civil action, it is reasonable to impose conditions

on its availability involving inter alia, the financial situation of

the litigant or the prospects of success of the proceedings

(No. 8158/78, Dec. 10.7.80, D.R. 21 p. 95). Where legal aid is denied

on the basis that the claim is either not sufficiently well-grounded

or is regarded as frivolous or vexatious, such a situation would not

normally constitute a denial of access to court unless the applicant

could show that the decision of the administrative authority was

arbitrary (No. 8158/78 ibid).

The Commission notes that the applicant has continued the

proceedings himself and still has an appeal pending before the Court

of Appeal. Further, legal aid was refused on the basis that he had

shown no grounds for being a party to the proceedings and that his

claim had very little prospect of success. The applicant has made no

allegation and the Commission sees no basis for finding that that

decision was arbitrary. The Commission concludes that the applicant was

not denied effective access to court as a result of not having been

granted legal aid.

This part of the complaint must therefore be dismissed as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicant also complains about length of proceedings and

invokes Article 6 (Art. 6) of the Convention. The Commission considers

that it cannot, on the basis of the file determine whether there has

been violation of this provision without the observations of the

parties.

The Commission therefore adjourns this part of the application.

For these reasons, the Commission, unanimously,

DECIDES TO ADJOURN its considerations of the complaint relating

to the length of proceedings;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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THAW v. THE UNITED KINGDOM

THAW v. THE UNITED KINGDOM

LEXI