Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14551/89

by J.R. and W.A.

against the United Kingdom

The European Commission of Human Rights sitting in private

on 4 December 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

Sir Basil HALL

Mr. F. MARTINEZ

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 10 January 1989

by J.R. and W.A. against the United Kingdom and registered on 16

January 1989 under file No. 14551/89;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant is a citizen of the United Kingdom who

was born in India in 1927 and is normally resident in Fribourg,

Switzerland. The second applicant is also a citizen of the United

Kingdom, born in 1958 and normally resident in London.

Before the Commission the applicants are represented by Messrs

James and Sarch, solicitors, London.

This is the applicants' second application to the Commission.

The first application, No. 14074/88, concerned proceedings as a result

of which the applicants were found guilty of civil contempt and

committed to prison in absentia for periods of two years and six

months respectively from the date of their apprehension.

The facts of the present case, as submitted on behalf of the

applicants, may be summarised as follows:

On 9 March 1988 the applicants were found guilty of civil

contempt and committed to prison for two years and six months

respectively. An appeal to the Court of Appeal against the decision

of 9 March 1988 was made on 22 April 1988. On 15 September 1988 an

application was made by the solicitors for the plaintiff in the

contempt proceedings that the applicants should make payment into

court of £ 18,320.50 as security for costs of the appeal, in default

of which the appeal should be stayed. On 28 November 1988 the

Registrar of the Court of Appeal ordered the applicants to make

payment into court of £ 14,600 on or before 21 December 1988 in default

of which the appeals were to stand dismissed. The Registrar found,

inter alia, as follows:

"[The plaintiff's] case was that [the applicants] had

procured breaches of ... undertakings, as a result of

which assets of a very substantial value belonging to [a

company] were spirited away abroad out of the reach of the

liquidator of [the plaintiff] ...

Security for costs is sought on the grounds that [the

applicants] are resident abroad and do not have assets in

this country available to meet [the plaintiff's] costs of

the appeal if the appeal is unsuccessful ...

Here the award of security is resisted on the grounds that

the appeal involves the liberty of the subject ...

... although the Court as a general rule will not award

security for costs where the liberty of the appellant is at

stake on the appeal, it is possible for the Court to award

security in an appropriate case. In my judgment the test

should be: would it, in all the circumstances, be a denial

of justice to the appellants to require them to furnish

security for costs? The following factors have led me to

the conclusion that in this case it would not be a denial of

justice to [the applicants] to require them to furnish

security for the costs of their appeals.

(1) They have both been found guilty of procuring

deliberate and dishonest breaches of the undertakings

given to the Court in this action.

(2) There is not, and indeed could not, be any

suggestion that [the applicants] have not had a fair

trial. It is clear that the learned Vice-Chancellor

gave them every indulgence. ... It is not without

significance that neither of the applicants chose to

give any evidence or to come anywhere near giving a

satisfactory answer to the charges of contempt brought

against them. ... Their appeals are based on technical

points not the broad merits.

Furthermore, in my view their grounds of appeal,

although not hopeless, are weak...

(3) The case for awarding security for costs here is

particularly strong. The settled practice of the

Court of Appeal in awarding security where the

appellant is resident outside the United Kingdom is

not the product of any discrimination against foreign

nationals or against those who reside abroad. The

rationale of this Court's settled practice of awarding

security for costs in such cases is that the

difficulty (or, in some cases, impossibility) of a

successful respondent being able to enforce any order

for costs made in his favour by the Court of Appeal

against a non-resident appellant who has no assets in

this country.

I am satisfied on the evidence before me - in

particular the uncertainty about where [the

applicants] are living and generally their past

behaviour - that the chances of being able to enforce

any costs order against them are remote, if not

non-existent.

(4) The award of security will not prevent the

appellants pursuing their appeals. ... Here the

evidence before me does not establish that the

applicants would be unable to pay security of the

amount which I propose to order. On the contrary, the

indications are the other way. They have been able to

afford to have solicitors and counsel acting for them

throughout these proceedings which have already

involved a number of hearings at first instance, two

appeals to the Court of Appeal, and one application to

the House of Lords...

If an appellant wishes to contend that he is unable

to pay security for costs and therefore any award of

security will stifle his appeal he must adduce

credible evidence to that effect in the proper form...

I am not satisfied that these appellants would be

unable to pay.

... it would, in my judgment, be a denial of justice to

[the plaintiff] to allow these two dishonest individuals to

bring a third appeal to the Court of Appeal safe in the

knowledge that if the appeals are unsuccessful they will be

able to evade liability for [the plaintiff's] costs".

As to quantum, the Registrar found that the settled

practice of the Court of Appeal was to award an amount of security

equal to the best estimate the court could make of the full costs of

the appeal taxed on the standard basis. He considered the time

estimated, two days, "certainly not an over-estimate", but reduced the

time for solicitor's preparation from 55 hours partner's time to 30

hours. He considered that the proposed fee for counsel of £ 5000 with

a refresher of £ 750 was reasonable, and would normally be allowed on

standard basis taxation.

The applicants' appeal against the security for costs order

was heard on 19 December 1989. The appeal was dismissed and the

Registrar's order of 28 November was affirmed.

No payment was made into court before 21 December 1988 and the

applicants' appeals stood dismissed.

COMPLAINTS

The applicants submit that the requirement that they make

payment of £ 14,600 as security for costs in their appeal from the

decision of 9 March 1988 constitutes a breach of Article 6 of the

Convention. They contend that the contempt proceedings constitute

criminal charges, that Article 6 applies to the Court of Appeal and that,

in view of the potentially extensive risk of loss of liberty for the

applicants, they should not have had to make payment as a condition of

the appeal.

THE LAW

The applicants allege a violation of Article 6 (Art. 6) of the

Convention by virtue of the requirement that they pay £ 14,600 as

security for costs before they were permitted to proceed with their

appeal against an order committing them to prison for civil contempt.

The first sentence of Article 6 para. 1 (Art. 6-1) states:

"1. 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 notes that the Convention does not guarantee a

right to appeal either in civil or in criminal cases, and that Article

2 of Protocol No. 7 (P7-2), which has not been ratified by the United

Kingdom, provides for an appeal only in criminal cases. Where an

appeal is provided, however, the fundamental guarantees of Article 6

(Art. 6) must be respected, although the way in which the provision applies

must depend on the special features of such proceedings (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).

The Commission is not required to decide in the present case

whether this provision applies to appeals in proceedings in which the

defendants are committed to prison for civil contempt, nor whether a

requirement to pay security for the costs of an appeal is generally

compatible with Article 6 (Art. 6) of the Convention as, even if both

questions were to be decided in the affirmative, the application is,

in any event, inadmissible for the following reasons:

The applicants must be understood to be complaining of a

denial of access to court by virtue of the requirement that they pay

into court security for costs of £ 14,600. The Commission refers here

to the judgment of the Registrar of the Court of Appeal, in which the

Registrar set out at length his reasons for granting the application

for security. In particular, the Commission notes that considerable

assets had left the country by the time of the order for security,

that the evidence did not establish that the applicants were unable to

pay the security, that the indications were that they were able to pay

it, and that the function of the security was to prevent the other

party to the proceedings from being at a financial disadvantage if

required to defend any appeal with little or no prospect of recovering

the costs that would be awarded if his defence was successful.

Further, the Registrar's assessment of the quantum of the security to

be awarded makes clear that the amount of security was based on the

actual costs likely to be incurred. It is true that the applicants'

liberty was at issue in the contempt proceedings (unlike in No.

7973/77, Dec. 28.2.79, D.R. 17, p. 74), but the overall circumstances

justified the order. The applicants' access to court was not denied.

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

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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R., A. v. THE UNITED KINGDOM

R., A. v. THE UNITED KINGDOM

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