Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26374/95

by Harry JOHNSTON and Brian WARD

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 12 April 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 21 November 1994

by Harry JOHNSTON and Brian WARD against the United Kingdom and

registered on 1 February 1995 under file No. 26374/95;

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 applicants are British citizens born in 1947 and 1944

respectively. They are building contractors and live in Manchester.

They are represented before the Commission by Mr. P. Wainwright,

solicitor, of Messrs. Graham, Leigh, Pfeffer & Co, Manchester. The

facts of the case, as submitted by the applicants' representative, may

be summarised as follows.

The particular circumstances of the case

In 1990 the applicants were sued in the Salford County Court on

a contract which they had entered into in 1985 with a doctor. The

contract related to the sale of a piece of land next to the doctor's

surgery and included provision for the land to be flattened and

cleared. Judge Bernstein gave judgment on 2 October 1992. She found

that the applicants had failed to fulfil their part of the contract,

and awarded the plaintiff £2,000.00 by way of damages for the work he

had had to have done himself - half of the amount he had claimed.

The applicants state that they had been trying to establish

before the trial whether the plaintiff had instructed a quantity

surveyor in 1985, as, if he had, he would have known about the state

of the site at the time. It was only after the plaintiff had claimed

at the trial that a quantity surveyor had not been involved, that an

architect (who had been involved) offered to contact the quantity

surveyor. The quantity surveyor had evidence which contradicted the

plaintiff's case and supported the applicants' case. He also had

photographs and documents relating to his initial survey in 1985.

On 3 December 1992 the applicants applied for a re-trial under

Order 37 rule 1 of the County Court Rules. On 10 December 1992 the

judge - the original trial judge - granted leave to have the matter re-

heard. The plaintiff applied for leave to appeal against that order.

On 19 May 1993 Lord Justice Kennedy rejected the application on the

ground that the judge had correctly applied the principles governing

applications which are laid down in Ladd v. Marshall [1954] 3 All ER

745. The plaintiff further applied to the Court of Appeal for leave

to appeal. Lord Justice Staughton granted leave to appeal on 21 July

1993, and on 11 January 1994 the Court of Appeal allowed the

plaintiff's appeal. Lord Justice Glidewell set out the history of the

dispute, and noted that there had been a complete conflict of evidence

before the first instance judge, and that she had preferred the

evidence of the plaintiff. He also noted that she had not accepted the

amount of damages claimed, and had reduced it from £4,000.00 to

£2,000.00 plus interest. He further noted that in hearing the

application for a re-trial, the judge had directed herself in

accordance with the principles in the County Court Practice and the

principles in Ladd v. Marshall.

Lord Justice Glidewell considered that of particular importance

was what evidence could properly have been obtained on behalf of the

applicants for the trial. He considered that the quantity surveyor

could have been required to attend, and that the applicants' solicitor

could have consulted with him. He concluded:

"For my part, I take the view that the judge was wrong to

conclude that the evidence of [the quantity surveyor], including

the documents he now produces, could not have been obtained with

reasonable diligence for use at the trial. I think with

reasonable diligence they could have been obtained and they

should have been obtained."

In allowing the plaintiff's appeal, Lord Justice Glidewell added

that although the evidence submitted could indicate that the value of

work omitted by the applicants did not exceed £750.00, that was of

limited relevance as it could only affect the quantum of damages, and

the application had been for a re-trial, not a re-trial on damages

only.

The House of Lords refused the applicants leave to appeal to it

on 23 May 1994.

Relevant domestic law

The County Court Practice at the relevant time provided that:

"In special and exceptional circumstances a new trial may be

granted because new evidence has been discovered, but it is

essential that as a preliminary step a party asking for a new

trial on this ground should show that there was no remissness on

his part in adducing all possible evidence at the trial."

In Ladd v. Marshall ([1954] 3 All ER 745) Lord Denning M.R. held:

"In order to justify the reception of fresh evidence or a new

trial, three conditions must be fulfilled: first, it must be

shown that the evidence could not have been obtained with

reasonable diligence for use at the trial: second, the evidence

must be such that, if given, it would probably have an important

influence on the result of the case, although it need not be

decisive: third, the evidence must be such as presumably to be

believed, or in other words, it must be apparently credible,

although it need not be incontrovertible."

Lord Justice Hodson, in the same case, considered the discretion

to re-hear a matter (under the Rules of the Supreme Court, which apply

in the High Court), and noted that "[t]hat discretion has been always

exercised in the light of the maxim interest reipublicae ut sit finis

litium".

COMPLAINTS

The applicants allege a violation of Articles 6 and 13 of the

Convention. They consider that the right to a fair hearing must

include the right to a new hearing where the first hearing was unfair,

and that a hearing is unfair if it proceeds in the absence of relevant

evidence.

The applicants consider that the "reasonable diligence" test in

Ladd v. Marshall places a disproportionately severe limitation on a

party's opportunity to present his case fully, and that even if the

test as such is compatible with the Convention, the Court of Appeal in

the present case infringed the Convention by forming the incorrect view

that the applicants failed to use reasonable diligence. In particular,

the applicants claim that the Court of Appeal overstepped its

jurisdiction in domestic law, and that they did in fact exercise

reasonable diligence.

The applicants underline that the trial judge - who was best

placed to decide whether there should be a re-trial - granted the

application.

It is contended that the refusal of leave to appeal to the House

of Lords violated Article 13 of the Convention.

THE LAW

The applicants allege a violation of Articles 6 and 13

(Art. 6, 13) of the Convention. Article 6 (Art. 6) 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 ..."

The Commission recalls its case-law that Article 6 para. 1

(Art. 6-1) of the Convention does not apply to proceedings concerning

an application for a review of civil proceedings (Nos. 13601/88 &

13602/88, Dec. 6.7.89, D.R. 62, p. 284, with further references). The

position will, however, be different where an application for a re-

trial is granted, since those (re-opened) proceedings do determine

civil rights or a criminal charge, as the case may be (in the context

of a criminal case which was referred to the Court of Appeal by the

Home Secretary, see Eur. Court H.R., Edwards judgment of 16 December

1992, Series A no. 247).

In the present case, the Court of Appeal eventually decided that

there should not be a re-trial of the case, and so the guarantees of

Article 6 (Art. 6) do not apply to the proceedings which began with the

applicants' application of 2 December 1992 and ended with the House of

Lords refusal of leave to appeal of 23 May 1994. The decision of Judge

Bernstein never became final because the plaintiff appealed against it,

and so the applicants cannot rely on it.

The applicants claim that Article 6 (Art. 6) itself guaranteed

a right to a re-trial in the circumstances of the present case.

The Commission here recalls that Article 6 (Art. 6) does not

guarantee a right to an appeal, although Article 6 will apply to any

appeal which is provided (see, for example, No. 16598/90, Dec.

16.12.90, D.R. 66 pp. 260, 263 with further references). The same

applies to re-trials: the Convention does not guarantee a right to a

re-trial, although if one is granted, the guarantees of Article 6

(Art. 6) will apply as they did at the first trial (see above).

To the extent that the applicants allege that the first instance

trial was not fair, the Commission notes that they make no allegations

of unfairness other than the question of the new evidence they wished

to bring. In any event, they did not appeal the decision of

2 October 1992.

As to Article 13 (Art. 13) of the Convention, the Commission

recalls that in connection with similar arguments to those under

Article 6 (Art. 6) of the Convention, the requirements of Article 13

are less strict than, and may well be absorbed by, those of Article 6

(Art. 6) (Eur. Court H.R., Kamasinski judgment of 19 December 1989,

Series A no. 168, p. 45, para. 110). In any event, Article 13

(Art. 13) cannot afford a right of appeal to a superior court (No.

13135/87, Dec. 4.7.88, D.R. 56, pp. 268, 274).

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.

Secretary to the First Chamber President of the First Chamber

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

Menu

JOHNSTON AND WARD v. THE UNITED KINGDOM

JOHNSTON AND WARD v. THE UNITED KINGDOM

LEXI