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AS TO THE ADMISSIBILITY OF

Application No. 14053/88

by Neal DUGGAN

against Ireland

The European Commission of Human Rights sitting in private on

14 December 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

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 30 April 1988

by Neal DUGGAN against the United Kingdom and registered on 26 July

1988 under file No. 14053/88;

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 an Irish citizen born in 1939 and resident in

Dublin. The applicant previously introduced before the Commission

Application No. 12234/86, which was declared inadmissible on

2 December 1986. The facts as submitted by the applicant may be

summarised as follows.

It appears that Mr. M. delivered a Stock Transfer Form to

Allied Irish Banks PLC (AIB) purporting to transfer one fully paid 25

p ordinary share in that company to the applicant.

On 10 April 1987, AIB entered the applicant's name on its

register of members as owner of the share and issued a share

certificate in his name, allegedly without his knowledge or consent.

On discovering this, the applicant objected and requested AIB to

rectify their register by removing his name. AIB accordingly made an

application to the High Court by summons dated 13 May 1987 for an

order for rectification of their register and recovery of the share

certificate. The summons was sent to the applicant and Mr. M. The

applicant filed affidavits on 19 and 21 May 1987 and on 19 May 1987

also served notice of intention to cross-examine the Secretary and

Assistant Manager of AIB on the affidavits filed by them on behalf of

AIB. Mr. M. entered no appearance and filed no affidavit in the

action.

The application was heard in the High Court by Mr. Justice

Costello on 25 May 1987. The judge refused to allow the applicant to

cross-examine the officials of AIB. The applicant submitted that the

application had been unnecessary since AIB had statutory authority to

rectify its own register. The judge accepted that a court order was

not necessary if all the parties consented but that it was not clear

in this case that Mr. M. did consent. The judge granted AIB's

application and ordered the rectification of the register. He refused

to order AIB to pay the applicant's costs on the ground that if the

applicant had agreed to the order of rectification he would have borne

no costs.

The applicant appealed to the Supreme Court on the grounds,

inter alia, that the judge had no jurisdiction to grant the

rectification. He also applied for a new trial and to introduce

evidence to the effect that prior to the High Court hearing Mr. M. had

tried to settle matters with AIB.

On 9 October 1987, the applicant's motions came before the

Supreme Court, consisting of Messrs. Justices Finlay (the Chief

Justice), Hederman and Henchey. The applicant was refused permission

to cross-examine the officials of AIB or to file a further affidavit.

The matter came back before the same court on 23 October 1987. The

applicant asked the judges if any of the judges held shares in AIB.

After retiring to consider the question, the Chief Justice stated:

"Neither I nor any other member of this Court has any interest

in the plaintiff company (AIB). I have ascertained on enquiry

that as trustee of the Honourable Society of King's Inns my

name is registered on the company's register since the society

holds shares in the bank (AIB) in respect of prize funds and

scholarships which the society administers. The Court does

not consider that this fact constitutes a bona fide complaint

against its membership or invalidates its capacity to hear the

case."

The applicant then continued with his application.

The Court refused to set aside its decisions of 9 October 1987

and awarded costs against the applicant. On 6 November 1987, the

Court, consisting of Messrs. Justices Finlay, Hederman and Henchey,

dismissed the applicant's appeal.

Following his appeal, the applicant carried out investigations

and discovered that:

a. The Chief Justice, Mr. Justice Finlay, had been a

shareholder and member of AIB since 1973 in respect of

his trusteeship of the Honorable Society of King's Inn;

b. Mr. Justice Hederman's sister was a director and a

shareholder in AIB;

c. Mr. Justice McCarthy's wife held shares in AIB;

d. Mr. Justice Henchey's mother-in-law apparently living

at the same private address as the judge was a

shareholder in AIB;

e. Members of the family of the Court clerk, including

his wife and children were shareholders in AIB.

He also discovered inter alia that AIB's solicitor was a

personal friend of the Chief Justice and Court clerk.

By letters dated 16 December 1987 and 12 January 1988, the

applicant protested to the Registrar of the Supreme Court at these

links between AIB and the court which dealt with his appeal and

requested a rehearing of his appeal and an amendment of the order of

6 November 1987. By letter dated 14 January 1988, the Registrar

informed the applicant that the order required no amendment, and that

the Chief Justice had directed that a re-hearing would not be granted.

The costs of the appeal were taxed by a taxing master on

25 May 1988 at £ 2,447.30. The applicant states that the taxing

master also has an account with AIB.

COMPLAINTS

The applicant complains that he did not on his appeal to the

Supreme Court receive a fair hearing before an independent and

impartial tribunal on 9 October 1987, 23 October 1987 and 6 November

1987, since the judges involved and the Court clerk had a personal

interest in or connection with AIB. He complains that he was given no

opportunity to object to the participation of Messrs. Justices Hederman

and Henchey on 6 November 1987 and that the 3 judges and the clerk of

the Court on that day were automatically disqualified and should not

have been involved. He complains also in relation to Mr. Justice

Hederman that since he is liable to pay costs to Mr. Justice Hederman

arising out of his attempt to sue the judge for his involvement in a

decision of the Supreme Court on 24 November 1982 that judge should

never participate in any cases involving the applicant. He further

complains of the lack of impartiality of the taxing master.

The applicant also complains that he received an unfair

hearing, inter alia, as a result of the hostile attitude of the judges

and of frequent interruptions. He complains that the entry of his

name on AIB's registry without his knowledge and consent deprived him

of the peaceful enjoyment of his possessions. He further complains

that he has no effective remedy in respect of his complaints.

The applicant invokes Articles 6 para. 1 and 13 of the

Convention and Article 1 of Protocol No. 1 to the Convention.

THE LAW

1. The applicant complains that he was deprived of a fair hearing

before an independent and impartial tribunal in the proceedings before

the Supreme Court as a result of the connections which he found

between members of the Court and AIB, a party to the proceedings. He

also complains of not receiving a fair hearing. He invokes Article 6

para. 1 (Art. 6-1) of the Convention, which 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 must first consider whether the applicant's

complaints concern the determination of his civil rights or

obligations within the meaning of that provision. The Commission

recalls that in this case the applicant had objected to the transfer

into his name of one share in AIB and demanded rectification of AIB's

register. AIB had accordingly applied to the court for an order of

rectification which was granted. The applicant, as a formal party to

the proceedings, had chosen to appear at the hearing and to argue that

AIB did not require a court order in order to rectify its register.

The court did not accept his argument and refused to award him his

costs. It appears that the applicant appealed, maintaining that AIB

was not required to seek a court order and that the judge had had no

jurisdiction to grant the order. The ownership of the share was not

in issue in the appeal. The Commission accordingly finds that the

subject matter of these proceedings concerned in essence the powers of

AIB to rectify its own register and that it did not concern any of the

civil rights or obligations of the applicant within the meaning of

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

It follows that these complaints are incompatible ratione

materiae with the provisions of the Convention within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

2. The applicant has also complained that the entry of his name

on AIB's register without his consent deprived him of the peaceful

enjoyment of his possessions contrary to Article 1 of Protocol No. 1

(P1-1). However, under Article 25 para. 1 (Art. 25-1) of the

Convention, the Commission may only receive an application from a

person, non-governmental organisation or group of individuals where

the applicant alleges a violation by one of the Contracting Parties of

the rights and freedoms set out in the Convention and where that Party

has recognised this competence of the Commission. The Commission may

not, therefore, receive applications directed against private

individuals or bodies. In this respect the Commission refers to its

established case-law (see e.g. No. 172/56, Dec. 20.12.57, Yearbook 1

pp. 211, 215; No. 852/60, Dec. 19.9.61, Yearbook 4 pp. 346, 352; No.

3925/69, Collection 32 pp. 56, 58; No. 4072/69, Dec. 3.2.70, Yearbook

13 pp. 708, 716; No. 9022/80, Dec. 13.7.83, D.R. 33 pp. 21, 36).

Since the registration of the share in his name was the apparent

result of the actions of Mr. M. and AIB, it follows that this part of

the application is incompatible ratione personae with the provisions

of the Convention within the meaning of Article 27 para. 2 (Art. 27-2)

of the Convention.

3. The applicant also complains that he has no effective remedy

in respect of his complaints contrary to Article 13 (Art. 13) of the

Convention which guarantees that everyone whose rights and freedoms as

set forth in this Convention are violated shall have an effective

remedy before a national authority.

Insofar as the applicant invokes Article 13 (Art. 13) in

relation to his complaints under Article 6 (Art. 6), the Commission

recalls that it has found these complaints incompatible ratione

materiae with the provisions of the Convention. It therefore follows

that the complaint under Article 13 (Art. 13) in this regard must also

be dismissed as incompatible ratione materiae with the provisions of

the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of

the Convention.

The Commission has examined the applicant's complaints under

Article 1 of Protocol No. 1 (P1-1) and found that the complaints are

incompatible ratione personae with the provisions of the Convention.

It follows that this complaint is also incompatible ratione materiae

with the provisions of the Convention 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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DUGGAN, Neal

DUGGAN, Neal