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KELMAN v. THE UNITED KINGDOM

Doc ref: 26665/95 • ECHR ID: 001-2925

Document date: May 15, 1996

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Cited paragraphs: 0
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KELMAN v. THE UNITED KINGDOM

Doc ref: 26665/95 • ECHR ID: 001-2925

Document date: May 15, 1996

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 26665/95

by Diana and Alistair KELMAN

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 15 May 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

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 2 November 1994

by Diana and Alistair Kelman against the United Kingdom and registered

on 8 March 1995 under file No. 26665/95;

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 facts of the case, as submitted by the applicants, may be

summarised as follows.

The applicants, United Kingdom nationals, are spouses residing

in London. The first applicant was born in 1950 and is a computer

consultant. The second applicant was born in 1952. He is a barrister

and also represents his wife before the Commission.

The applicants had a joint account and several other business and

personal accounts with TSB Bank plc ("TSB"). Between 1985 and 1989

they obtained several loans from TSB, drawn for business purposes and

for improvements in their house. These included a £ 35,000 loan

secured by a mortgage on their house, a £ 135,000 loan for the purchase

of real property and the cost of its conversion, secured by a mortgage

on their first house and on the newly purchased house, and further

loans totalling £ 73,000 for upgrading the quality of the

reconstruction works and covering outstanding legacies from the second

applicant's inherited estate.

In 1990, due to unfavourable market tendencies, the applicants

began to experience financial difficulties. In February the second

applicant had to borrow an additional £ 20,000 on his credit cards and

to sell his car in order to meet payments due on the reconstruction

works undertaken in the newly purchased real property.

Throughout the relevant period the applicants regularly received

from TSB bank statements concerning all their accounts and loans.

In 1992 the applicants decided to review the management of the accounts

and discovered discrepancies and errors. They sought more information

from TSB, but this was refused.

On 23 March 1992 TSB demanded the immediate repayment of

£ 133,570.53. The applicants questioned the accuracy of the bank

statements and the exact amounts due and sought further information.

In November 1992 TSB instituted proceedings against the

applicants seeking the possession of the mortgaged properties. The

applicants submitted a counterclaim for damages asserting that TSB had

provided to them wrongful information and had refused to provide other

information as regards certain bank statements.

On 23 May 1994 TSB obtained a judicial order for possession of

the mortgaged properties. The applicants submitted an appeal to the

High Court. They claimed that TSB should not be granted possession of

the properties until the disputes regarding the inaccuracies in certain

bank statements were determined in ordinary judicial proceedings.

Alternatively, they relied on a statutory provision which allowed the

Court to postpone delivery of the possession if the debtor convinced

the Court that he would pay the debt within a reasonable time.

On 8 July 1994 the High Court delivered its judgment. The Court

found that as long as it had been undisputed that the applicants owed

a significant amount of money, TSB was entitled to the possession of

the property. Also, a counterclaim could not be a defence against the

mortgagee's action for possession. The Court then adjourned the matter

to enable the applicants to produce evidence that they would be able

to repay the sums claimed within four months.

The applicants repaid the amounts claimed by TSB. This was done

apparently without prejudice to the dispute as regards the exact amount

due. The applicants have not indicated whether they ultimately pursued

their claims for damages and inaccurate accounting.

COMPLAINTS

The applicants complain that the rule, whereby a mortgagee is

entitled to immediate possession of the mortgaged property regardless

of existing disputes as to the exact amount of the loan secured on it,

is contrary to Article 8 of the Convention where, as in their case, the

mortgaged property is the debtor's home. Article 8 should be

interpreted, in their view, as requiring adjudication by normal trial

proceedings of any such disputes before a mortgagee is granted the

possession of the debtor's home.

The applicants assert that in their case they had no choice but

to repay the amount claimed by the bank as they risked losing their

home. They invoke Article 1 of Protocol No. 1 to the Convention.

THE LAW

The applicants complain, under Articles 8 and Article 1 of

Protocol No. 1 (Art. 8, P1-1) to the Convention, that they risked

losing their mortgaged home without prior determination, through

ordinary civil proceedings, of the dispute concerning the exact amount

due and that as a result they had to pay on the creditor's terms.

However, the Commission need not decide whether the facts

complained of fall within the scope of Article 8 or Article 1 of

Protocol No. 1 (Art. 8, P1-1) to the Convention and if so, whether the

applicants have exhausted all domestic remedies within the meaning of

Article 26 (Art. 26) of the Convention, as the application is in any

event manifestly ill-founded for the following reasons.

The Commission recalls its case-law according to which it follows

from Article 25 (Art. 25) of the Convention that an individual cannot

complain against a law in abstracto (Appl. No.8307/78, Dec. 11.7.80,

D.R. 21, p. 116).

The Commission notes that the applicant's home was never

repossessed by their creditor. Therefore, they cannot claim to be the

victim of a breach of their rights in this respect.

Insofar as the applicants complain that they were forced to

accept the repayment of the amount claimed by the bank, the Commission

notes that the applicants can receive back any overpaid amounts by

seising the courts with their claims concerning the alleged accounting

errors and ensuing damages.

It follows that the application is manifestly ill-founded and has

to be rejected under Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

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

LEXI

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