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AS TO THE ADMISSIBILITY OF

Application No. 17070/90

by G.

against the United Kingdom

The European Commission of Human Rights sitting in private on

1 October 1990, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

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 13 June 1990

by G. against the United Kingdom and registered on 24 August 1990

under file No. 17070/90;

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 citizen of the United Kingdom, born in 1928

and resident in M., England.

The facts of the present case, as submitted by the applicant

and which may be deduced from documents lodged with the application,

may be summarised as follows:

The applicant sold a large area of his property in 1981. A

boundary dispute arose with successive purchasers of that property

from 1985 onwards. The dispute went before the High Court which found

against the applicant on 23 January 1989. The applicant alleges,

inter alia, that the Court wrongly assessed the evidence and that the

neighbours lied. He appealed to the Court of Appeal.

On application by the neighbours, the Registrar of the Court

of Appeal ordered on 20 June 1989 that the applicant could not go

ahead with an appeal until he paid £16800 into court as security for

the neighbours' legal costs, the applicant having conceded that he did

not have any money left to pay costs if his appeal was dismissed. The

Registrar explained his decision as follows:

"The basis of the Court of Appeal's practice in relation

to the award for security for costs on the grounds of

impecuniosity is this. The rules relating to security

are wider and stricter in the Court of Appeal than they

are in the court of first instance. Impecuniosity is

not, except in the case of a corporate plaintiff, a

ground for awarding security for costs in the court

below. It is, however, a ground for award of security

for costs in the Court of Appeal. A factor which is

always significant, and sometimes conclusive, in the

court of first instance, is that a plaintiff who has

a claim which is bona fide should be allowed to 'have

his day in court'. A fortiori, a defendant is allowed

to have his day in court defending himself against a

plaintiff's claim. The position in the Court of Appeal

is quite different. The plaintiff or defendant has

already had his day in court in the shape of the trial

or other first instance hearing and he is not permitted

to have a second day in court in the shape of the appeal

safe in the knowledge that liability for the respondent's

costs will not effectively be borne by him come what may.

Security is awarded on the grounds of impecuniosity on

the basis that it would be an injustice to a respondent

to have to defend an appeal and pay his own costs win or

lose.

I am therefore entirely satisfied that there are good

grounds for awarding security in this case in the event

of legal aid being refused."

A single judge of the Court of Appeal upheld the Registrar's

decision on 15 May 1990, as confirmed by the full Court of Appeal on

13 June 1990.

COMPLAINTS

The applicant complains that he has been deprived of his

property, contrary to Article 8 of the Convention and Article 1 of

Protocol No. 1 to the Convention. He again invokes Article 8 of the

Convention claiming that he has been denied an appeal on the merits.

THE LAW

1. The applicant has complained that he has been deprived of his

property contrary to Article 8 (Art. 8) of the Convention, which

guarantees, inter alia, the right to respect for one's home. He also

invokes Article 1 of Protocol No. 1 (P1-1) to the Convention which

secures the peaceful enjoyment of possessions.

The Commission notes that the applicant has disputed the

ownership of certain property with his neighbours and that this issue

has been fully argued before the High Court and decided in the

neighbours' favour. It is not the Commission's task to reassess the

evidence before the domestic courts in the absence of any evidence of

arbitrariness. The High Court has concluded that the property in

question belongs to the neighbours and in so doing it cannot be said

to have deprived the applicant of his property. In these

circumstances, the Commission concludes that this aspect of the case

is manifestly ill-founded, within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicant has again invoked Article 8 (Art. 8) of the

Convention in respect of a refusal to hear his appeal on the merits.

The Commission refers to its constant case-law that the Convention

does not guarantee a right of appeal. Nevertheless where an appeal

would normally be available the fundamental guarantees of Article 6

para. 1 (Art. 6-1) of the Convention, including access to court, must

be respected (cf. in the context of a criminal appeal, Eur. Court

H.R., Delcourt judgment of 17 January 1970, Series A no. 11, paras. 25

and 26). Insofar as the applicant's access to the appeal is barred by

the requirement that he first pay £16800 into court as a security for

the neighbours' costs should he lose, the Commission considers that an

issue may arise under Article 6 para. 1 (Art. 6-1) of the Convention,

but not, in this case, under Article 8 (Art. 8). However, the right

of access to court guaranteed by Article 6 para. 1 (Art. 6-1) of the

Convention is not an absolute right and does not prevent the

Contracting Parties from regulating the manner in which the public may

have access to the courts in order to ensure the proper administration

of justice (No. 6916/75, Dec. 8.10.76, D.R. 6 p. 107 at p. 112).

The Commission considers that it is not an unreasonable

requirement of civil litigation that the unsuccessful party may have

to pay the adversary's legal costs. In particular, in the light of

the circumstances of the present case, the Commission is of the

opinion that it is not improper to require the applicant to pay into

the appeal court a security for his neighbours' legal costs should he

lose before the Court will hear his appeal on the merits. The

applicant's access to court in this instance has been partially

fettered in order to protect the rights of the other party to the

litigation. The Commission does not find that this balancing of the

conflicting rights of the litigants over their legal costs at the

appeal stage constitutes an arbitrary denial of the applicant's access

to court. It concludes, therefore, that this aspect of the case does

not disclose any appearance of a violation of Article 6 para. 1

(Art. 6-1) of the Convention. Accordingly, it must be rejected as

being manifestly ill-founded, within the meaning of Article 27 para. 2

(Art. 27-2) 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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G. v. THE UNITED KINGDOM

G. v. THE UNITED KINGDOM

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