Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16309/90

by Alan Albert GARNHAM

against the United Kingdom

The European Commission of Human Rights sitting in private

on 17 October 1991, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on

15 September 1989 by Alan Albert Garnham against the United Kingdom

and registered on 6 March 1990 under file No. 16309/90;

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 1925 and resident

in Hassocks. The facts as submitted by the applicant may be

summarised as follows.

On 17 January 1979, a Receiving Order was made against

the applicant and on 12 February 1979 he was adjudged bankrupt.

On 25 January 1979, the Official Receiver's examiner took possession

of 40 files containing the applicant's books and papers, including

some personal papers.

On 8 March 1979, a trustee in bankruptcy was appointed who

took possession of the files, which had become his property under the

provisions of the Bankruptcy Act 1914.

On 27 April 1979, the Court ordered that the applicant be

discharged from bankruptcy automatically on 12 February 1984, the

fifth anniversary of his being adjudicated bankrupt in accordance with

section 7 of the Insolvency Act 1976.

During the course of his administration, the trustee realised

sufficient funds to pay all the applicant's debts and liabilities in

full. On 21 October 1982, the trustee informed the applicant of his

intention to apply to the Department of Trade to be released. The

applicant objected to the trustee's release by letter dated 3 January

1983 in which he also complained that his voluminous files were being

"literally kicked around in the Trustee's Office" and requested that

they be given proper storage protection.

By letter dated 12 January 1983, the Department of Trade

informed the applicant that it saw no grounds justifying withdrawal of

the trustee's release and that if the applicant obtained rescission

and annulment he could become entitled to the return of his books and

papers. On 7 April 1983, the Department of Trade proceeded to grant

the trustee's release.

On 13 April 1983, the trustee returned the applicant's files

to the Official Receiver.

On 10 June 1983, the Official Receiver wrote to the applicant

pointing out that the applicant could now apply to the Court for an

order rescinding the Receiving Order. On 28 September 1983, the

applicant replied that he did not intend to do so in protest against

long-term unemployment.

Following his automatic discharge on 12 February 1984, the

applicant applied to the Official Receiver for return of his files

which included documents from a previous employer and material which

he intended to use to write a book about his experiences of being

unemployed. By letter dated 4 February 1985, the Official Receiver

informed the applicant that his papers had been destroyed in

accordance with Rule 387 of the Bankruptcy Rules 1952.

On 7 December 1987, the applicant's complaints concerning the

destruction of his files were referred to the Parliamentary

Commissioner for Administration.

In his report dated 18 August 1989, the Parliamentary

Commissioner found that the Official Receiver, while acting under

statutory authority, could be criticised for failing to keep better

records and for failing to give guidance to bankrupts concerning the

practice with regard to the destruction of documents. Pursuant to

Rule 387, the bankrupt's documents could be destroyed if the trustee

had been released once more than two years had elapsed since the

Receiving Order and there was no prospect at that time of rescission

of the Receiving Order. The applicant had not been made aware that it

was only by applying for rescission that he could have his documents

returned. The Commissioner also found that there was no evidence that

the applicant had asked for the return of the papers or indicated that

they were of personal nature until after they had been destroyed. The

Commissioner conveyed the Official Receiver's apologies to the

applicant and stated that the Official Receiver had undertaken to

remedy the shortcomings in the procedure.

By letter dated 6 February 1990, the applicant was advised by

his solicitor that no further legal action could be taken in view of,

inter alia, the difficulty of establishing liability and of

quantifying any financial loss suffered by the applicant.

Relevant Domestic Law and Practice

At the relevant time, bankruptcy procedure was governed

principally by the Bankruptcy Act 1914 ("the 1914 Act") and the

Bankruptcy Rules ("the Rules").

Immediately on a debtor being adjudged bankrupt by the court,

his property, including books and papers, vested in the trustee in

bankruptcy (section 53 of the 1914 Act).

The main duties of the trustee in bankruptcy were to take

or reduce into possession the bankrupt's property, including his

deeds, books and documents (section 48 of the 1914 Act) and to declare

and distribute dividends amongst the creditors who had proved their

claims (section 62 of the 1914 Act).

Under section 93 of the 1914 Act, the trustee could apply to

the Department of Trade for his release when he had realised the property

of the bankrupt or such of it as could be realised without needlessly

protracting the trusteeship, and had distributed a final dividend or

had ceased to act by reason of a composition having been approved or

had resigned or had been removed from office. The Department then

had to cause a report on the trustee's accounts to be prepared, and on

the trustee complying with all requirements of the Department, had to

take into consideration the report and any objection lodged by any

creditor or person interested against the release, and then either

grant or withhold the release, subject to appeal to the court. The

effect of a release is to discharge the trustee from all liability in

relation to his conduct as trustee. Under the Rules, no release

could take effect until the trustee had delivered to the official

receiver (or new trustee, as the case might be) all the books,

papers, documents, and accounts in his possession relating to the

office of trustee (rule 343). If there was then no trustee in

relation to the bankrupt's estate, the official receiver would become

trustee by virtue of his office (sections 74 (1) (g), 78 (4) and 93

(5) of the 1914 Act).

Rule 387 of the Bankruptcy Rules provides that, on the

application of the official receiver, the debtor's books of account

and other documents may be "sold, destroyed or otherwise disposed of"

on the direction of the Department of Trade. The procedures for the

disposal of books and papers of the debtor by the official receiver

were the subject of standing instructions to official receivers issued

by the Department which were amended in October 1983. The policy of

the Department was aimed at ensuring that books and papers of debtors

were not kept longer than was necessary for the purpose of realising

the estate of the debtor and any proceedings in connection with the

bankruptcy.

Instruction 14 (issued in July 1982 and amended in October

1983) set out how the official receiver should apply to the

Department for sanction for the disposal of books and papers and

indicated the circumstances in which books and papers could or should

be returned to the bankrupt, sold, preserved or destroyed.

Prior to October 1983, Instruction 14 indicated that an

application for sanction for the disposal of the books and papers of a

debtor would not normally be granted unless:

(i) the trustee had been released; and

(ii) two years had elapsed since the receiving order was made

or the debtor had been discharged.

The Instruction was amended in October 1983 so that,

normally, applications for sanction were to be made and granted on the

release of the trustee. The official receiver was, however, expected

to be satisfied that the debtor had been discharged or that the books

and papers would be of no relevance to a discharge application or

review and that, at the time of the application, there was no

prospect of a rescission of the receiving order.

Instruction 14 (Paragraph 6) also stated that:

"Private papers which are of no marketable value and

which are not required for any purpose relative to

the proceedings may, on request, be returned to the

bankrupt."

The Department regarded papers which were not recognisably

concerned with the debtor's financial affairs as "private papers".

Even where they are not recognisably papers concerning the debtor's

financial affairs, a debtor's books and papers may be relevant to the

recovery of assets or to prosecutions in connection with the

bankruptcy proceedings. Further, they may be of marketable value

which should be realised for the benefit of creditors. If, at the

time when a debtor's books and papers were being taken into

possession by the official receiver, the debtor made it clear that

they were personal or private papers which were not in these

categories, the papers would normally either not be taken into

possession or would be returned to him after perusal. Furthermore,

where the debtor made no such representation and private papers were

taken into possession but were not of marketable value or required for

the proceedings, they could be returned to the debtor on request at

the official receiver's discretion, without the need to seek further

sanction from the Department. In practice, such requests were

generally granted. Except in the case of a rescission and annulment -

when, by virtue of annulment of the adjudication order, the property

of the bankrupt reverted to him - there was no statutory requirement

on the official receiver to return to the debtor his books and papers

(so far as not already destroyed).

COMPLAINTS

The applicant complains of the destruction of his papers and

correspondence and invokes Article 8 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The applicant first wrote to the Commission on 28 May 1985.

He wrote again on 15 September 1989 and the application was registered

on 6 March 1990.

On 13 July 1990 the Commission decided to communicate the

application to the Government and to ask for written observations on

the admissibility and merits of the application.

The Government's observations were submitted on 20 February

1991 after three extensions in the time-limit and the applicant's

observations in reply were submitted on 30 March 1991 and 8 July 1991.

On 8 March 1991 the Commission decided to grant legal aid to

the applicant.

On 10 March 1991 the Commission examined the admissibility of

the application.

THE LAW

The applicant complains of the destruction of his papers

by the Official Receiver.

The Government have submitted that the application should be

rejected as having been introduced outside the six month time limit

imposed by Article 26 (Art. 26) of the Convention. The Commission

recalls that the applicant first wrote to the Commission on 28 May

1985. He did not write again however until 15 September 1989, after

which he completed an application form and the application was

registered. There was accordingly a gap of over four years in the

applicant's correspondence.

The Commission has therefore examined the question of the date

of introduction of the present application.

In accordance with its established practice, the Commission

considers the date of the introduction of an application to be the

date of the first letter indicating an intention to lodge an

application and giving some indication of the nature of the complaint.

However, where a substantial interval follows before an applicant

submits further information as to his proposed application, the

Commission examines the particular circumstances of the case in order

to decide what date shall be regarded as the date of introduction with

a view to calculating the running of the six-month period set out in

Article 26 (Art. 26) of the Convention (see e.g. No. 4429/70, Dec.

1.2.71, Collection 37 p. 109).

The Commission has regard in this context to the purpose of the

six-month rule which is to promote security of the law, to ensure that

cases raising issues under the Convention are dealt with within a

reasonable time and to protect the authorities and other persons

concerned from being under uncertainty for a prolonged period of time.

The Commission's case-law also establishes that it would be

contrary to the spirit and the aim of the six-month rule set out in

Article 26 (Art. 26) if, by any initial communication, an applicant

could set into motion the proceedings under the Convention and then

remain inactive for an unexplained and unlimited length of time (see

e.g. No. 10626/83, Dec. 7.5.85, D.R. 42 p. 205). The Commission has

constantly rejected applications where an applicant submitted an

application more than six months after the date of the final decision

when there were no special circumstances suspending the running of

this period. The Commission finds that it would be inconsistent with

the aim and purpose of the six-month rule to deviate from this rule in

a situation where an application has been introduced under Article 25

(Art. 25) of the Convention within six months from the final decision

or act complained of but thereafter not pursued.

In the present case, the Commission recalls that more than four

years passed before the applicant resumed correspondence with the

Commission. Part of that period was spent by the applicant in pursuing

a complaint before the Parliamentary Commissioner for Administration.

The Commission recalls however that its case-law establishes that a

complaint to the Parliamentary Commissioner for Administration is

generally not an effective remedy for the purposes of Article 26

(Art. 26) of the Convention (see e.g. Silver and Others v. the United

Kingdom, Comm. Report 11.10 80, paras. 447-448, Eur. Court H.R.,

Series B no. 51, p.103 ). Further, it appears that the applicant

delayed for over two years before submitting his complaint to the

Parliamentary Commissioner for Administration, a delay for which he

has given no explanation.

In light of these circumstances, notwithstanding the

applicant's initial letter of 28 May 1985, the Commission considers

the date of introduction of the application to be 15 September 1989.

Since the applicant was informed of the destruction of his documents

by letter of 4 February 1985, it follows that the application has been

introduced out of time and must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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GARNHAM v. THE UNITED KINGDOM

GARNHAM v. THE UNITED KINGDOM

LEXI