Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22410/93

by Geoffrey and Margaret ROBINS

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 18 January 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 14 March 1993 by

Geoffrey and Margaret Robins against the United Kingdom and registered

on 3 August 1993 under file No. 22410/93;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to:

- the Commission's decision of 22 February 1995 to declare the

applicantion partly inadmissible and to communicate the remainder

to the respondent Government for observations on its

admissibility and merits;

- the observations submitted by the respondent Government on

25 May 1995 and the observations in reply submitted by the

applicants on 28 July 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicants, husband and wife, are British citizens born in

1942 and 1943 respectively and resident in Crediton and London. The

facts as submitted by the applicants may be summarised as follows.

In 1982, in a case brought against the applicants by their

neighbours, Mr. and Mrs. T., the applicants were found liable to pay

damages of £ 2, 363.69 in respect of damage caused by them to the

neighbours' sewage. In 1988, the applicants instituted an action

against Mr. and Mrs. T., alleging that their sewage was seeping onto

and under the applicants' land. The applicants were legally aided.

By a judgment of 1 May 1991, the applicants' claims were

dismissed. Legal aid taxation of the applicants' costs was ordered.

The applicants' appeal was dismissed by the Court of Appeal on

19 October 1992.

On 31 May 1991 solicitors representing Mr. and Mrs. T. requested

a further hearing before Judge Clarke to determine costs. On 5 August

1991 Judge Clarke ordered that the parties appear before him on the

issue of costs. Hearings were held on 3 September and again on

19 September 1991. As the question of costs could not be resolved

because of factual disputes and conflict between the parties, on

24 September 1991 Judge Clarke made a direction that the enquiry should

be adjourned and not restored until a number of points concerning the

applicants' entitlement to legal aid had been clarified.

On 25 November 1991 Exeter Combined Court Centre, where the case

was pending, received a report from the Legal Aid Board outlining

events from the time the applicants first applied for legal aid. On

14 January 1992 a copy of this report was sent to the parties who were

informed that the matter could now be re-listed upon receipt of a time-

estimate.

On 4 February 1992 the Legal Aid Board informed the Court that,

for the purposes of further legal aid, a fresh Department of Social

Security assessment of the applicants' means was required in view of

the fact that the applicants were not living together any longer.

On 11 August 1992 an order was issued for a hearing date to be

fixed.

In a letter from the Department of Social Security, filed with

the Court on 10 November 1992, it was explained that a delay of

9 months had been caused because those undertaking the assessment of

means were under the wrong impression that the applicants had

separated.

The restored hearing was held on 12-13 November 1992 before Judge

Darwall-Smith as Judge Clarke had fallen ill. On 13 November 1992,

after hearing Mrs. T., the applicants and an officer from the Legal

Aid Board, Judge Darwall-Smith found that the balance of money retained

by the Legal Aid Board (£ 4,599) should be paid to the defendants

forthwith. He further found that, notwithstanding that the applicants

had originally been eligible for legal aid with a nil contribution,

they were liable to pay Mr. and Mrs. T. a sum of £6000 (payable in

instalments of £100 per month) in respect of costs.

The applicants sought legal aid to appeal against this decision.

By notice dated 11 January 1993, the applicants applied for an

extension of time for appealing as it had expired on 11 December 1992.

Subsequently queries were raised by one of the Civil Appeals

Office lawyers as to whether leave to appeal, as well as an extension

of the time for appealing were required, and the matter was referred

to the Registrar.

Counsel's opinion dated 11 August 1993 indicated that there was

a ground of appeal in that the judgment of Judge Darwall-Smith

indicated that he took into account an irrelevant or improper

consideration in reaching his decision, namely, the applicants'

dwelling house which is exempt under the relevant legal aid

regulations.

In September 1993 and again in March 1994 the applicants

contacted the court asking why there was a delay in dealing with the

application.

On 10 April 1994 the Registrar directed that leave to appeal

against the costs order was not required. On 15 April 1994, the Civil

Appeals Office wrote to the applicants informing them that their

application had been referred to the Full Court to determine the

question of the extension of time and, if granted, to hear the appeal

immediately. The applicants were requested to lodge the relevant

documents by 2 May 1994.

Subsequently the applicants had to apply several times for

extensions of this time limit as they were unable to obtain some of the

documents. All applications for extension were granted.

The applicants had approached the county court with a view to

obtaining the notes of the relevant judgments which had to be lodged

with the Court of Appeal. By letter dated 17 June 1994, the Chief

Clerk informed the applicants that he had difficulty in providing the

documents requested but that the notes of the hearing of 3 September

1991 were being prepared. It later transpired that the judges's notes

had been either lost or did not exist, but that a tape of the hearing

of 12-13 November 1992 had been located. The applicants were unable

to afford the transcription of the tape and the Civil Appeals Office

having been informed, the County Court were instructed to pass the

tapes to the Court of Appeal for transcription from public funds. The

applicants were also informed in a letter of 16 November 1994 from the

Chief Clerk of the County Court that the notes of the other hearings

were not considered necessary at this stage and the file was to be

transferred to the Court of Appeal once the transcript was received at

which point further directions would be forthcoming.

The applicants contacted the respective offices regularly by

telephone and by mail asking for more expeditious handling of their

requests. On 1 March 1995 the Chief Clerk in a letter to the

applicants apologised for the delay in answering to their latest faxed

letter and informed them that the search for Judge Clarke's notes had

been fruitless which meant that either such notes did not exist or had

been lost.

On 6 March 1995 some bundles of documents on the case were lodged

with the Court of Appeals Office. On 29 March 1995 a Lord Justice

directed that the application be listed ex parte in the first instance

before the full court. A hearing was listed for 19-20 June 1995. R

Relevant domestic law and practice

Regulations as regards legal aid provide that in assessing the

assisted person's means, the resources of his or her spouse are treated

as his or her resources unless the person concerned and the spouse are

living separately and apart.

Jurisdiction to extend time limits at the Court of Appeal stage

is conferred by Rules of Court on the full Court of Appeal, the single

Lord Justice, and the Registrar of Civil Appeals. Where there are good

reasons why the appellant's documents cannot be lodged within the time

limit provided, an extension may be granted. A hearing date will not

normally be arranged until the appeal documents have been lodged and

any defect remedied. Rules of Court provide that it is for the

appellant to obtain, and pay for, transcripts.

COMPLAINTS

The applicants complain under Article 6 para. 1 of the Convention

about the length of the costs proceedings following the judgment of

1 May 1991.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 14 March 1993 and registered

on 3 August 1993.

On 22 February 1995 the Commission declared inadmissible the

applicants' complaints under Articles 6, 8, 13 and 14 of the Convention

concerning the civil proceedings ending with the decisions of 1982 and

1991. The Commission decided to communicate to the respondent

Government pursuant to Rule 48 para. 2(b) of the Rules of Procedure the

applicants' complaint under Article 6 para. 1 of the Convention insofar

as it concerned the length of the cost proceedings.

The Government's written observations were submitted on

25 May 1995 after an extension of the time-limit fixed for that

purpose. The applicants replied on 18 July 1995.

THE LAW

The applicants complain of the length of the cost proceedings

following the judgment of 1 May 1991. They rely on Article 6 para. 1

(Art. 6-1) of the Convention which, insofar as relevant, provides as

follows:

"1. In the determination of his civil rights and obligations

... , everyone is entitled to a ... hearing within a reasonable

time ..."

The Government accept that the proceedings at issue concerned the

determination of the applicants' civil rights and obligations within

the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. They

also agree that the period to be taken into account runs from the

judgment of 1 May 1991.

The Government submit that the cost proceedings in the

applicants' case were generally complex because the financial resources

of all parties had to be taken into account and because there existed

factual discrepancies. Allegations were made by the parties about

undeclared assets, which required to be investigated.

Furthermore, the misapprehension that the applicants had

separated, which caused a delay of 9 months between February and

November 1992, was due to an impression created by the applicants,

albeit unintentionally. Also, the delay of 11 months between 15 April

1994 and 6 March 1995 was the result of the applicants' failure to

produce certain documents.

At the same time the courts handled the matter with expedition

and arranged production of transcripts at public expense. Moreover,

what was at stake for the applicants in the cost proceedings was

nothing more than their liability for legal costs, an inevitable and

predictable consequence when a plaintiff loses civil proceedings.

The applicants reply that the proceedings have been pending for

more than four years and one month.

They submit that the allegations of the other party to the cost

proceedings as regards undeclared assets were not connected with the

delays. In any event, a legal system should not allow one party to

civil proceedings to suffer because of the vexatious allegations of

another.

The applicants contend that the delays were the responsibility

of the Legal Aid Board, the Department of Social Security and the

courts, which were all state organs.

Moreover, it is untrue that the applicants, albeit

unintentionally, caused a misapprehension that they had separated. In

fact, the Department of Social Security apologised expressly for having

committed a mistake.

Most of the delays were due to inactivity on the part of the

state organs involved, whereas the applicants made regular telephone

enquiries, sent letters and took all other necessary measures. Thus,

the delay of 11 months between March 1994 and April 1995 was not in any

way caused by the applicants as the required documents could only be

obtained from the courts who, despite the applicants' active efforts,

did not provide them.

The Commission finds that the applicants' complaint under Article

6 para. 1 (Art. 6-1) of the Convention concerning the length of the

cost proceedings raises serious questions of fact and law which are of

such complexity that their determination should depend on an

examination of the merits. This complaint cannot, therefore, be

regarded as being manifestly ill-founded within the meaning of Article

27 para. 2 (Art. 27-2) of the Convention, and no other ground for

declaring it inadmissible has been established.

For these reasons, the Commission, unanimously,

DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the First Chamber President of the First Chamber

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

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ROBINS v. THE UNITED KINGDOM

ROBINS v. THE UNITED KINGDOM

LEXI