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AS TO THE ADMISSIBILITY OF

Application No. 27006/95

by J.B.

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

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 30 January 1995

by J.B. against the United Kingdom and registered on 7 April 1995 under

file No. 27006/95;

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 United Kingdom national born in 1943. He is

unemployed and resides in Canterbury. Before the Commission the

applicant is represented by Mr. Timothy J. Bancroft, solicitor of John

Copland and Son, Sheerness. The facts of the case, as submitted by the

applicant, may be summarised as follows.

In March 1992 the applicant and his family became the objects of

media attention in connection with a television election broadcast.

The factual basis of the broadcast, for which the applicant had

unwittingly provided an idea, was incorrectly stated to be the

applicant's daughter's health problems.

On 11 April 1993 the Sunday Express published an article

detailing the applicant's private life following his separation from

his daughter's mother. It stated, inter alia:

"A year ago [the applicant] and his lover ... found overnight

notoriety after the infamous ... election broadcast. It thrust

their six-year-old daughter into the limelight when the film

attempted to hoodwink voters by claiming [the applicant's

daughter] had been forced to wait 11 months for an ear operation

because of NHS cuts. But it emerged that the delay in her

treatment was due to an administrative error and she had been

admitted to hospital the moment the mistake was spotted. [The

applicant's daughter] looked on bewildered as the storm designed

to discredit the Tories blew back towards her parents with

hurricane force."

The article further criticised the applicant stating that his

actions had brought "turmoil" to his daughter's life. The newspaper

published a secretly taken photograph of the applicant being kissed by

his girlfriend at the time. According to the article the applicant

stated that he lived with his girlfriend and that they had a close

relationship. However, the applicant has never made such a statement.

The applicant unsuccessfully sought redress from the newspaper

as regards the factual inaccuracies and defamatory comments. On

27 August 1993 the Press Complaints Commission refused to deal with the

matter. The applicant then sought to bring legal proceedings.

On 23 September 1993 the applicant was granted legal aid to take

proceedings against Express Newspapers plc for damages for malicious

falsehood. The legal aid was limited to obtaining counsel's opinion

as to whether the applicant's action could succeed.

In his opinion of 1 June 1994 the counsel advised the applicant

that any action against Express Newspapers plc for malicious falsehood

would be unlikely to succeed, mainly because of the absence of evidence

of malice. The opinion comprised, inter alia, the following

statement:

"This article does illustrate one of the contrasts between

defamation (libel and slander) and malicious falsehood. Although

in libel there would still be the same difficulty with the

meaning of the words, which I do not believe bear the sense that

[the applicant] sees in them, at least the publisher's intention

would be immaterial, because in libel, the intended meaning or

state of mind of the publisher is irrelevant - what matters is

simply the objectively assessed meaning of the words...

I accept that if (contrary to my view) the meaning of these words

were as [the applicant] asserts, it would plainly be false."

In counsel's view the applicant could not succeed on any other

legal basis for which legal aid was available. In consequence of this

opinion the Legal Aid Certificate was discharged on 8 December 1994.

The applicant's legal representatives considered that counsel's

opinion effectively suggested that the applicant had an arguable libel

case. By a letter of 22 July 1994 they informed the editor of the

Sunday Express that the article of 11 April 1993 was, in the

applicant's view, libellous and that their client envisaged a claim for

appropriate compensation. The editor was asked to submit his possible

proposals for settlement on this claim.

On 5 August 1994 the legal adviser of Express Newspapers plc

confirmed the publisher's view that the article at issue was not

defamatory of the applicant and made no offer of settlement.

Since the applicant was not in a position to pay the fees of a

lawyer, he was prevented, because of its complexity, from pursuing

properly his action for libel before a court.

COMPLAINTS

The applicant complains under Article 6 of the Convention that

since legal aid is not available in proceedings for libel and since he

could not afford legal assistance, without which he would have had no

realistic chance of pursuing his case properly, his right to access to

a court was violated.

He further alleges a violation of Article 14 of the Convention

in that he was discriminated against on grounds of property from

pursuing his case properly.

Finally, the applicant alleges a violation of Article 8 of the

Convention in that the article at issue involved interferences with his

private and family life for which he had no remedies under United

Kingdom law.

THE LAW

The applicant complains that because of the non-availability of

legal aid in proceedings for libel, and because of the absence of any

other remedy under United Kingdom law, he was prevented from seeking

redress in respect of the article of 11 April 1993 which, in his view,

was defamatory of him. He alleges a violation of Articles 6, 8 and 14

(Art. 6, 8, 14) of the Convention.

The Commission recalls that pursuant to Article 26 (Art. 26) of

the Convention it may only deal with the matter within a period of six

months from the date on which the final decision was taken. In

accordance with the Commission's case-law this period runs from the

moment the applicant (or, as the case may be, his or her legal

representative) is aware of the matter of the complaint before the

Commission (cf. No. 12015/86, Dec. 6.7.88, D.R. 57 pp. 108, 113, with

further references).

In the present case the applicant's legal representatives became

aware of the situation of which the applicant complains when they

received counsel's opinion informing the applicant that any legal

remedy against Express Newspapers plc covered by the legal aid scheme

was unlikely to succeed, i.e. not later than 22 July 1994 when they

sought to obtain, in the light of that opinion, compensation from the

editor of the Sunday Express on the ground that the article at issue

was libellous. The Commission therefore considers that the period of

six months ran from 22 July 1994 at the latest.

Since the application was introduced on 30 January 1995, the

applicant has failed to comply with the six months' time limit laid

down in Article 26 (Art. 26) of the Convention.

It is true that on 5 August 1994 Express Newspapers plc denied

its liability and made no offer to pay compensation to the applicant.

However, the applicant's request for a settlement addressed to the

opposing party cannot be regarded as an effective remedy within the

meaning of Article 26 (Art. 26) of the Convention as it gave no

possibility to the United Kingdom authorities to redress the alleged

interference with the applicant's rights (cf., mutatis mutandis, No.

12945/87, Dec. 4.4.90, D.R. 65 pp. 173, 177; No. 17441/90, Dec. 4.9.92,

D.R. 73 p. 201). For this reason the refusal of that request cannot

constitute the final decision for the purposes of Article 26 (Art. 26)

of the Convention.

It follows that the application has to be rejected pursuant to

Article 27 para. 3 (Art. 27-3) 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)

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J.B. v. THE UNITED KINGDOM

J.B. v. THE UNITED KINGDOM

LEXI