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AS TO THE ADMISSIBILITY OF

Application No. 13674/88

by Cyril Albert WARNER

against the United Kingdom

The European Commission of Human Rights sitting in private on

14 April 1989, the following members being present:

MM. S. TRECHSEL, Acting President

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

J. CAMPINOS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

Mr. J. RAYMOND, Deputy 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 28 January 1988

by Cyril Albert WARNER against the United Kingdom and registered on

18 March 1988 under file No. 13674/88;

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 applicant is a British citizen born in 1917 and resident

in Bognor Regis. He is represented by Mr. Stanton, a solicitor

practising in Bognor Regis. The facts as submitted by the applicant

may be summarised as follows:

On 26 February 1948, the applicant began work as a

maintenance fitter for Williams (Hounslow) Limited, a company

manufacturing dyestuffs. The applicant left this employment on 28

August 1952. In or about 1970, the applicant first began to develop

symptoms of carcinoma of the bladder. In 1980, the applicant first

became aware that it was likely that the carcinoma was connected with

his exposure to certain chemical raw materials between 1948 and 1952.

On 23 October 1980 he was diagnosed by the Department of Health and

Social Security as suffering from a prescribed industrial disease.

On 4 September 1985, the applicant's bladder was removed. In

1986, the applicant consulted his solicitors with a view to commencing

proceedings against Williams (Hounslow) Ltd (hereafter the company) for

the damage to his health on grounds of negligence and/or breach of

statutory duty. A writ was served on 25 February 1987. The company

served a defence on 5 November 1987 denying liability and pleading

that the claim was in any case statute barred because of the

Limitation Acts. In March 1987 the applicant's counsel had advised

that the current limitation period (i.e. three years for personal

injuries) in relation to the applicant's claim had begun to run when

he first had knowledge of the cause of his disease, i.e. in 1980.

While the three years period had accordingly expired in 1983-84,

several years before the applicant sought legal advice, counsel

advised that pursuant to section 33 of Limitation Act 1980 the court

had the discretion to waive the operation of the limitation period if

certain criteria were fulfilled.

The company served a request for further and better

particulars of the statement of claim on 5 November 1987.

On 30 November 1987, counsel however advised the applicant

that the recent House of Lords judgment in Arnold v. Central

Electricity Generating Board (<1987> 3 WLR 1009) indicated that the

applicant had no prospect of success. In the Arnold case, the House

of Lords held that the Limitation Act 1963 did not deprive any

defendant of a time bar which had accrued on the expiry of the six

years limitation period prescribed by section 2(1) of the 1939

Limitation Act which, by virtue of section 7 of the Act of 1954,

continued to govern any cause of action. Since the applicant's cause

of action accrued not later than 28 August 1952, counsel advised the

limitation period (at that time six years) expired on 28 August 1958

and his action was therefore out of time.

The company had made an offer of £5000 to settle the case. In

light of the House of Lords judgment, the applicant's solicitors

accepted the offer with payment of their costs and the action was

settled.

COMPLAINTS

The applicant complains that the provisions of the United

Kingdom limitations legislation have prevented him from obtaining a

determination of his civil rights at a fair and public hearing within

a reasonable time as required by Article 6 para. 1 of the Convention.

He submits that as a result of these provisions the limitation period

laid down had expired before he even realised his rights had been

interfered with.

THE LAW

The applicant complains that he has been deprived of a fair

hearing in the determination of his civil rights as a result of the

limitations legislation.

Article 6 para. 1 (Art. 6-1) first sentence of the Convention provides,

inter alia:

"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, in general, the right to compensation for

negligence constitutes a "civil right" and that therefore the right to bring a

civil action for negligence is guaranteed by Article 6 para. 1 (Art. 6-1) (see

e.g. No. 10475/83, Dec. 9.10.84, D.R. 39 p. 246).

The Commission notes that while the applicant may indeed bring

proceedings for negligence and breach of statutory duty, the House of Lords'

judgment in the Arnold case (loc. cit.) makes it clear that the provisions of

the 1939 Limitation Act still apply to the applicant's claim. By this Act, the

applicant's cause of action, which accrued at the latest in 1952 when he left

the company's employment, is subject to a six years limitation period which

expired in 1958.

The Commission recalls that the right of access to court is not

absolute but may be subject to limitations. In the Ashingdane case (Eur.

Court H.R., Ashingdane judgment of 28 May 1985, Series A no. 93, pp. 24 and 25,

para. 57), the European Court of Human Rights held:

"... the right of access 'by its very nature calls for

regulation by the State, regulation which may vary in

time and in place according to the needs and resources

of the community and of individuals (see the above-

mentioned Golder judgment, p. 19, para. 38, quoting the

'Belgian Linguistic' judgment of 23 July 1968, Series A

no. 6, p. 32, para. 5). In laying down such regulation,

the Contracting States enjoy a certain margin of

appreciation. Whilst the final decision as to

observance of the Convention's requirements rests with

the Court, it is no part of the Court's function to

substitute for the assessment of the national authorities

any other assessment of what might be the best policy

in this field (see, mutatis mutandis, the Klass and Others

judgment of 6 September 1978, Series A no. 28, p. 23,

para. 49).

Nonetheless, the limitations applied must not restrict

or reduce the access left to the individual in such a way

or to such an extent that the very essence of the right

is impaired (see the above-mentioned Golder and 'Belgian

Linguistic' judgments, ibid., and also the above-mentioned

Winterwerp judgment, Series A no. 33, pp. 24, 29, paras.

60, 75). Furthermore, a limitation will not be compatible

with Article 6 para. 1 (Art. 6-1) if it does not pursue a legitimate

aim and if there is not a reasonable relationship of

proportionality between the means employed and the aim

sought to be achieved."

In the opinion of the Commission, it must generally be

accepted in the interest of the good administration of justice that

there are time limits within which proceedings must be instituted. In

its previous case-law, the Commission has found it acceptable in the

interests of legal certainty that such time limits may be final and

that there may be no possibility to institute proceedings even when

new facts have arisen after the expiry of the time limit (No. 9707/82,

Dec. 6.10.82, D.R. 31 p. 223).

The Commission finds in the present case that the restriction

imposed on the applicant in respect of bringing proceedings in

relation to events which occurred over 30 years before is not

unreasonable and does not infringe the principle of proportionality.

The Commission accordingly finds no appearance of a violation of

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

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.

Deputy Secretary to the Commission Acting President of the Commission

(J. RAYMOND) (S. TRECHSEL)

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WARNER, v. THE UNITED KINGDOM

WARNER, v. THE UNITED KINGDOM

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