Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15414/89

by Andrew DICKSON

against the United Kingdom

The European Commission of Human Rights (Second Chamber)

sitting in private on 14 October 1991, the following members being

present:

MM. S. TRECHSEL, President of the Second Chamber

G. SPERDUTI

G. JÖRUNDSSON

A. WEITZEL

H.G. SCHERMERS

Mrs. G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ RUIZ

Mrs. J. LIDDY

Mr. M.P. PELLONPÄÄ

Mr. K. ROGGE, Secretary to the Second 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 5 July 1989

by Andrew DICKSON against the United Kingdom and registered on

29 August 1989 under file No. 15414/89;

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 1938. He supplies

and installs double glazing.

The facts, as presented by the parties, may be summarised as

follows.

In July and August 1980 the applicant signed written

assurances under Section 34 (1) of the Fair Trading Act 1973 ("FTA")

that he would refrain, in future, from committing breaches of contract

with customers of his double glazing business and then failing to

give proper redress. The applicant states that he was misled into

making the assurances by a member of the staff of the Director General

of Fair Trading ("DGFT") who had failed to reveal his true identity at

the time. The DGFT issued a press release in 1980 concerning the

assurances.

Following further complaints from the applicant's customers,

on 24 February 1984 the DGFT, referring to the assurance of August

1980, made an Originating Application to the Wakefield County Court

under Section 35 of the FTA that the applicant be ordered (1) to cease

committing breaches of contract, and (2) when in breach, to give

adequate redress.

On 13 April 1984 the Registrar made an order that the

applicant serve particulars of his Answer within 28 days, failing

which he was to be debarred from defending. Thereafter, lists of

documents were to be exchanged with 28-day time limits. The

applicant's Answer was filed on 30 April 1984.

The applicant filed his list of documents on 12 July 1984.

Amongst other papers, the list included six files of documents

relating to correspondence with customers.

On 16 July 1984, the DGFT requested copies of the applicant's

documents. Leave to amend the Originating Application was granted to

the DGFT on 31 July 1984, with liberty to the applicant to file an

amended Answer, if he wished, within 6 weeks thereafter.

The applicant's solicitors applied to be removed from the

court record in October 1984; the application was granted on

23 November 1984.

The DGFT applied to the Court for judgment in default on

grounds that the applicant had failed to produce the documents. On

29 March 1985 an order was made (amended on 10 April 1985) that the

applicant should produce his documents within 28 days, in accordance

with the order of 13 April 1984. Although the applicant had changed

solicitors, his former solicitors still held, in particular, the six

files referred to above. The former solicitors would not hand over

the files or provide copies or allow inspection. They contended that

they were entitled to refuse by virtue of the lien they had in the

documents, their costs not having been paid. On 29 April 1985, the

applicant not having produced the documents, the applicant's Answer

was struck out and an order made that:

"The Respondent, ANDREW DICKSON, do refrain, whether

by himself, his servants or agents or otherwise, from:-

(1) Continuing in the course of his business the

course of conduct set out below.

(2) Carrying on in the course of his business any

similar course of conduct to that set out below.

The course of conduct referred to above is as follows:-

(a) Committing breaches of contract with consumers by

(i) failing to carry out contracts for work and

materials in a proper and workmanlike manner;

(ii) supplying, pursuant to the said contracts,

materials which are not of merchantable quality

and/or not fit for their purpose

(b) When in breach of contract as described in sub-

paragraph (a) above, failing to give to

consumers within a reasonable time any or any

adequate redress."

On 14 May 1985 the applicant, acting in person (his latest

solicitors had also come off the record), applied for leave to appeal

out of time, and on 17 June 1985 Judge Taylor ordered that the

applicant be given leave to appeal within 3 months provided he

produced his documents for inspection. On 13 September 1985 that time

limit was extended, again by Judge Taylor to 29 October 1985,

because the applicant still could not obtain the documents from his

former solicitors. On 28 October 1985, the court adjourned the matter

at the DGFT's request for another 28 days to allow him to

instruct counsel.

On 11 December 1985 the applicant sought a further extension

of time which was opposed by the DGFT. A final extension was granted

to 4:00 p.m. on 14 February 1986, and in default the right of appeal

was to be refused and the Order of 29 April 1985 was to stand. The

applicant applied for the Order of 11 December 1985 to be stayed pending

his negligence action against his former solicitors (due to be heard

on 30 January 1986). That extension was refused on 28 January 1986.

Following correspondence between the Treasury Solicitor and the former

solicitors, the contents of the applicant's papers were eventually

sent to the Treasury Solicitor on 19 February 1986, i.e. 15 days after

the final extension.

An application by the applicant for further and better

particulars and a cross-application by the DGFT were considered on 19

May 1986 by the Registrar and dismissed on the ground that the Order

of 11 December 1985 was a final order.

On 20 May 1986 the applicant, who alleged that he only heard

about the late disclosure of the documents on 19 May 1986, applied for

an order that the Order of 29 March 1985 had been complied with as

the late disclosure was not his fault. A hearing was listed for 14

July 1986, but the applicant on 27 June 1986 applied for an

adjournment pending an opinion from counsel. On 22 September 1986

Judge Baker said that the matter should go before Judge Taylor. An

amended application was made on 30 September 1986 for a re-hearing of

the application on the extension of time.

On 12 December 1986 Judge Taylor adjourned the matter because

he was troubled as to whether he was able, in law, to consider the

application, the Order of 11 December 1985 having been a final order.

The case was re-listed for 18 February 1987, and Judge Taylor refused

the application for an extension of time, finding that, although he

had power to amend his own order, on balance he had been extremely

lenient with the applicant but should now refuse the application.

The applicant applied for leave to appeal to the Court of

Appeal. On 24 November 1987, his application was adjourned for a date

to be fixed for both parties to attend. The application was again

adjourned on 21 January 1988 since the DGFT's counsel was unavailable.

The application was finally heard on 3 March 1988 and leave to appeal

granted.

The appeal was heard by the Court of Appeal on 7 March

1989. It granted the applicant's application with the result that the

Order of 11 December 1985 was considered to have been complied with.

Sir Roger Ormrod noted:

"It is quite true that the overall delay is formidable and

it must be doubtful whether the application by the Director

of Fair Trading can in fact be dealt with at all after a

delay of at least ten years. It is a pity that it should be

pursued."

The following exchange took place at the end of the hearing:

"LORD JUSTICE MAY: What we said about the delay and the

need for an immediate, urgent hearing were not just pious

expectations. I do hope that both firms of solicitors

instructing each [counsel] will, if necessary, take the

train to Wakefield and go and see the Registrar in his

office.

[COUNSEL FOR THE TREASURY SOLICITOR]: My Lord, that has been

done regularly by the Treasury Solicitor.

LORD JUSTICE MAY: That may well be. Nevertheless show him a

copy of our views as to the delay and the urgency of this

matter. Get this on for hearing. We have got ten days

before Easter."

The case was not in fact heard before Easter 1989. Shortly

after the hearing the DGT withdrew from the proceedings on counsel's

advice decided not to continue the proceedings since the applicant had

ceased to carry on business since early 1985 and the reason for

pursuing the proceedings had disappeared.

Relevant domestic law and practice

The Director General of Fair Trading

The Director General of Fair Trading (the DGFT) was appointed by

the Secretary of State in 1973 under the powers given to him under S. 1

of the Fair Trading Act 1973 (the FTA) for the purpose of performing

the functions assigned or transferred to the DGFT by or under the

FTA. Many of his functions are "for the protection of consumers".

Since the appointment of the DGFT other functions have been

conferred on him under the Consumer Credit Act 1974, the Restrictive

Trade Practices Act 1976, the Estate Agents Act 1979 and the

Competition Act 1980.

The case of the applicant arose from the functions which are

performed by the DGFT under Part III of the FTA which is headed

"Additional Functions of Director for Protection of Consumers".

The DGFT functions under this part of the Act come into

play where it appears to him that a person carrying on a business has

in the course of that business persisted in an unfair course of

conduct which is detrimental to the interests of consumers in the

United Kingdom, whether those interests are economic interests or

interests in respect of health, safety or other matters. In these

circumstances the DGFT is under a duty to use his best endeavours,

by communication with the person concerned or otherwise, to obtain

from him a satisfactory written assurance that he will refrain from

continuing that unfair course of conduct and from carrying on any

similar course of conduct in the course of his business (s. 34 (I)).

Before obtaining an assurance the task of the DGFT under

subsection (1) of s.34 is first to assess whether a person has in the

course of his business

(a) persisted,

(b) in an unfair course of conduct,

(c) which is detrimental to the interests of consumers

in the United Kingdom.

For the purposes of determining whether it appears to the

DGFT that a person has persisted in an unfair course of conduct,

the DGFT has regard to complaints received by him, whether from

consumers or from other persons, and any other information collected

by or furnished to him (s. 34(4)).

The "unfair course of conduct" is defined by s34(1) and (2)

of the Act. A course of conduct is regarded as unfair to consumers

if it consists of contraventions of one or more enactments which

impose duties, prohibitions or restrictions enforceable by criminal

proceedings, regardless of whether the person carrying on the business

has or has not been convicted of any offence in respect of any such

contraventions (s. 34(2) of the Act), for example, offences committed

by a person in the course of his business such as offences under the

Trade Descriptions Act 1968, the Hallmarking Act 1973, the Weights and

Measures Act 1985, the Consumer Protection Act 1987.

A course of conduct on the part of a person carrying on a

business is also regarded as unfair to consumers if it consists of

things done, or omitted to be done, in the course of that business in

breach of contract or in breach of a duty (other than a contractual

duty) owed to any person by virtue of any enactment or rule of law and

enforceable by civil proceedings, whether (in any such case) civil

proceedings in respect of the breach of contract or breach of duty

have been brought or not (s. 34(3) of the Act). For example, this

would cover breaches of implied obligations such as those imposed

under the Sale of Goods Act 1979 or the Supply of Goods and Services

Act 1982.

The detriment to the interests of consumers is assessed by the

DGFT in the light of the facts of each case. Examples of economic

detriment are where a person in the course of his business repeatedly

sells goods which are not merchantable or are not suitable for their

purpose, or where a contract for work and materials is not carried out

with reasonable care and skill. Detriment to health is, for example,

where food brought at retail shops or consumed in restaurants does not

come up to the standards of hygiene specified by various enactments.

Interests relating to safety are those where goods and services, for

example toys and installation of gas cookers, are unsafe and do not

conform to certain standards prescribed by law.

Having considered the evidence given to or obtained by the

DGFT if it appears to him that a person in the course of the

business has persisted in an unfair course of conduct, the DGFT is

obliged to "use his best endavours, by communicating or otherwise" to

obtain a satisfactory written assurance from a trader. In this

connection the DGFT policy is first to write to the person

carrying on a business who has persisted in an unfair course of

conduct and ask him to give a satisfactory written assurance. The

DGFT's communication is accompanied by an explanation of Part III

of the FTA and the consequences which flow from not giving the

assurance, the assurance itself and the particulars of the unfair

course of conduct.

Where the person in question fails to give the assurance and

before taking proceedings against him under S. 35 of the FTA the

DGFT uses his best endeavours through his own employees or through

the employees of the local Trading Standards Department to

explain to the person who has carried on the unfair course of conduct,

the functions of the DGFT the details of the unfair course of

conduct and the requirement to give the satisfactory written

assurance.

If the DGFT is unable to obtain from the person in

question a written assurance or the person has given such an

assurance and it appears to the DGFT that he has failed to observe

the assurance, the DGFT may bring proceedings against him before

the Court (s. 35 (a) and (b) of the Act).

Section 35 proceedings

Under s.35 of the Act the DGFT has a discretion to bring

proceedings against a person who has persisted in an unfair course of

conduct and who has failed to give the assurance or, having given it,

failed to observe it.

The proceedings are brought against a person either before

the Restrictive Practices Court or the County Court and both courts

have like jurisdiction. The choice of court is determined by the size

of the business carried on by a person and whether there is likely to

be the determination of a question (whether of law or of fact) of such

general concern as to justify it being reserved for determination by

the Restrictive Practices Court (s.41 of the FTA).

The proceedings brought under s.35 of the Act are civil

proceedings. S. 363(1) states: "For the purposes of section 11 of the

Civil Evidence Act 1968 ... proceedings under section 35 of this Act

shall ... be taken to be civil proceedings within the meaning of the

Act in question".

Where the DGFT brings proceedings against a person under

s.35 of the Act, in order to succeed the DGFT has to prove to the

Court that:

(a) the person against whom the proceedings are brought

has, in the course of a business carried on by him, persisted

in an unfair course of conduct, and

(b) he is likely to continue that course of conduct or to

carry on a similar course of conduct (s.37 (1) of the Act).

Where the DGFT proves his case to the court, the court may

make an order against the person and where the court decides to make

such an order, the order indicates the nature of the course of conduct

and directs the person against whom the order is made:

(a) to refrain from continuing the course of conduct, and

(b) to refrain from carrying on any similar course of

conduct in the course of his business (s. 37 (2).

In the alternative, where the court makes a finding that a

person against whom the proceedings are brought by the DGFT under

s.35 of the FTA has persisted in an unfair course of conduct and is

likely to continue that course of conduct, and that person offers to

give to the court an undertaking either:

(a) that he will refrain from the courses of

conduct given in subparagraphs (a) and (b)

of the preceding paragaph, or

(b) that he will take particular steps which, in the

opinion of the Court, would suffice to prevent the

continuance of the course of conduct to which the

complaints relate and to prevent the carrying on

of any similar course of conduct in the course of his

business

the Court may, if it thinks fit, accept the undertaking instead of

making an order againt the person concerned (s.37 (3)).

Where a court makes an order or accepts undertakings from a

person and the order or the undertakings are not observed by that

person such a breach is contempt of court. The DGFT has a

discretion to bring contempt proceedings against that person.

Contempt proceedings

"Contempt of Court" is a term used to describe conduct which

interferes with the due administration of justice, whether generally or

in relation to a particular case. The courts have for centuries

assumed the power to coerce those whose acts or omissions tend to

undermine the system of justice. Contempts may be divided into two

types, usually referred to as civil contempt and criminal contempt.

Civil contempt usually consists of deliberate disobedience to an order

of the court and is the ultimate sanction which the court has against

a person who refuses to comply with its orders. Although its

existence serves to uphold the administration of justice in general, a

civil contempt is essentially a wrong to the person who is entitled to

the benefit of the court order. Committal for criminal contempt is

penal in nature and seldom takes civil contempt's usual form of an

action by one party to the detriment of the other party. Examples of

criminal contempt are disrupting proceedings in Court, publishing

material likely to undermine public confidence in the court or judge

or which may prejudice a fair trial, and obstructing officers of the

court, the parties or witnesses.

The penalties for contempt of court are laid down in section

14 of the Contempt of Court Act 1981. A superior court (including the

High Court) may impose an unlimited fine or a term of imprisonment of

up to two years.

COMPLAINTS

The applicant complains of the length of the proceedings

brought against him. He invokes Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 5 July 1989 and registered

on 2 September 1989.

On 5 February 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 15 May 1990

after one extension in the time-limit and the applicant's observations

in reply were submitted on 28 August 1990 after one extension in the

time-limit.

On 7 June 1990 the Commission decided to grant legal aid to

the applicant.

On 8 January 1991 the Commission decided that the application

be referred to the Second Chamber.

THE LAW

The applicant complains of the length of the proceedings

brought against him. He invokes Article 6 para. 1 (Art. 6-1) of the

Convention, which in its first sentence provides:

"In the determination of his civil rights and

obligations or of any criminal charge against him, everyone

is entitled to a fair and public hearing within a reasonable

time by an independent and impartial tribunal established by

law." ...

The Commission recalls that Article 6 para. 1 (Art. 6-1) only

applies to proceedings which involve the determination of either a

civil right or obligation or of a criminal charge.

The Commission has therefore considered the character of the

proceedings in question. It notes that neither the Government nor the

applicant have submitted that they concerned a criminal charge. The

Commission is satisfied, having had regard to the criteria laid down

by the Court i.e. the classification of the offence, the nature of the

offence and the severity of the penalty that the proceedings fell

outside the criminal sphere (see e.g. Eur. Court H. R., Engel and Others

judgment of 8 June 1976, Series A no. 22, pp.33-34 para. 80).

The applicant has submitted that the proceedings involved a

determination of his civil rights and obligations since it was

concerned with his business and livelihood and led, he alleges, to

his business closing down. The Government have contended that the

proceedings did not concern a determination of the applicant's civil

rights and obligations and further submit that the civil nature of

the proceedings did not of itself point to the existence of a "civil"

right. For the reasons set out below, however, the Commission finds

it unnecessary to decide whether rights or obligations in issue were

"civil" within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.

The Commission recalls that Article 6 para. 1 (Art. 6-1) is only

applicable to proceedings the result of which is directly decisive for

the civil rights and obligations of the person concerned. A tenuous

connection or remote consequences are not sufficient (see e.g. Eur.

Court H.R., Le Compte, Van Leuven and De Meyere judgment of 23 June

1981, Series A no. 43 p. 21, para. 47). The Commission notes that

these proceedings concerned the applicant's business practices. The

Order of the Court given in default on 29 March 1985 ordered the

applicant to refrain from committing breaches of contract with

customers by, for example, failing to carry out contracts for work and

materials in a proper and workmanlike manner or by failing to give

consumers adequate redress when in breach of contract. The Commission

considers that the order merely sets out in a formal manner the

contractual obligations which the applicant has towards his clients;

it does not purport to define or alter the content of those

obligations. Moreover, the question as to the imposition of the

sanction of contempt for breach of the order was not in issue. In

these circumstances, the Commission finds that the proceedings could

not be said to be directly decisive for any of the applicant's civil

rights or obligations and consequently do not involve a determination

of those rights or obligations within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention.

It follows that the application is incompatible with the

provisions of the Convention within the meaning of Article 27

para. 2 (Art. 27-2).

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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DICKSON v. THE UNITED KINGDOM

DICKSON v. THE UNITED KINGDOM

LEXI