Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12812/87

by Kathleen and William McKINNON

against the United Kingdom

The European Commission of Human Rights sitting in private on

13 December 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

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

Mrs. J. LIDDY

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 17 January 1987

by Kathleen and William McKINNON against the United Kingdom and

registered on 20 March 1987 under file No. 12812/87;

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 applicants, mother and son, are British citizens, born

in 1921 and 1958 respectively and resident in Leeds. The facts as

submitted by the applicants may be summarised as follows.

In 1972 and 1976, the applicants allege that parts of the

garden of their family home were occupied without permission by

neighbours, who cut down trees growing on the land. The applicants

commenced proceedings against their neighbours on 19 July 1983 for

recovery of their land and damages for trespass. On 7 September 1984,

the defendants to the action were granted legal aid. The defendants

in or about 1985 moved to a new home 400 km away.

On 3 July 1985, the applicants applied for legal aid. Though

they were financially eligible, the General Committee refused legal

aid since it "did not consider the subject-matter of the dispute

justified the potential cost of the proceedings". The applicants

appealed to the Area Committee, pointing out the defendants were

receiving legal aid. Their appeal was dismissed on 13 January 1986 in

the following terms:

"The Area Committee carefully considered the contents of

your application, including your photograph and plans

lodged. The Committee noted the nature and extent of

the proceedings you have commenced. The Area Committee

doubted whether you would be able to successfully pursue

the proceedings but, in any event, considered the

subject-matter of the dispute did not justify the further

pursuance of the proceedings."

The applicants applied for judicial review, challenging the

decision to refuse them legal aid and also the decision to grant legal

aid to the defendants. Leave to apply for judicial review was refused

on 18 June 1986. The applicants renewed their application and

following a hearing before the Divisional Court, their application was

dismissed on 18 July 1986, the Court holding as follows:

"This application is to challenge not only the decision to

refuse legal aid to these applicants but also the decision

to grant legal aid to the defendants. The points which are

made are that the Legal Aid Committee have not properly

considered the documents. It is said that on the merits

these applicants have a good case, but if they had taken

the law into their own hands and seized back the land in

dispute then the action would have been brought the other

way round and they as defendants might have got legal aid

and the applicants in those hypothetical proceedings might

not. All of that is as may be. This court has a

supervisory and reviewing jurisdiction and it is not

appropriate for it to go into the merits of the dispute.

What would have to be established on this application is

that there was an arguable case and that the Law Society's

Committee had in either of these regards, that is the grant

in the one case and the refusal in the other, acted in some

way which was outside their powers or was wholly unreasonable

and irrational or there was some procedural impropriety or

some matter had been taken into consideration which should

not have been or something which should have been taken into

account was not. None of those matters, it seems to me, are

shown by these papers or by what has been addressed to the

court this morning by , who has

presented his argument very courteously, but, it seems to

me, if I may say so, without any real substance.

There cannot be any basis upon which there could be challenge

to the grant of legal aid to the defendants. I would

emphasise what was said by Mr. Justice Mann, that there is a

world of difference between granting legal aid to a plaintiff

to pursue an action which the Legal Aid Committee does not

think either is a matter of substance or has much chance of

success on the one hand, and granting legal aid to defendants

who are challenged by an action of that kind so as to enable

them to defend their position."

Their appeal to the Court of Appeal was dismissed on

20 October 1986.

COMPLAINTS

The applicants complain that they have been deprived of their

right to a fair hearing under Article 6 of the Convention. They

submit that as a result of the refusal of legal aid and of the

provisions of the Legal Aid Act 1974, they will be unable to recover

their costs. Section 8(1)e of the Act limits the costs paid by an

unsuccessful legally-aided party to an amount which is a reasonable

one for him to pay having regard to all the circumstances, including

the means of all the parties and their conduct in connection with the

dispute. Section 13(3)a of the Act prevents successful plaintiffs who

are not legally-aided from recovering their costs from the legal aid

fund. They submit that this acts as a strong disincentive to continue

and puts them to under pressure to settle. They are forced to

continue with the action however since otherwise they would have to

pay the defendants costs as well as their own.

They also complain that they are at a disadvantage to the

defendants who will be legally represented. They further complain of

the decisions of the Law Society refusing them legal aid. The

applicants also complain under Article 13 of the Convention that they

are denied an effective remedy for the violation of their rights under

Article 1 of Protocol No. 1 to the Convention to peaceful enjoyment of

their possessions.

THE LAW

1. The applicants complain that they have been deprived of their

right to a fair hearing and refused free legal aid to pursue civil

proceedings.

The Commission first recalls that Article 6 para. 3 (c) (Art.

6-3-c) of the Convention secures a right to be granted free legal aid,

under certain conditions, only to those charged with a criminal

offence. In civil proceedings, however, as in the present case, no

right to free legal aid is as such included among the rights and

freedoms guaranteed by the Convention (see e.g. No. 265/57, Dec.

20.7.57, Yearbook 1 pp. 192, 194; Nos. 7823/77-7824/77, Dec. 6.7.77,

D.R. 11 pp. 221, 232).

However, the refusal of free legal aid may, in certain

circumstances, amount to a denial of the right of access to court

secured by Article 6 para. 1 (Art. 6-1) of the Convention to everyone

whose civil rights and obligations are to be determined (see Eur.

Court H.R., Golder judgment of 21 February 1975, Series A no. 18,

para. 36; Airey judgment of 9 October 1979, Series A no. 32, para.

26).

The Commission also recalls its constant case-law which

establishes that when an applicant is refused legal aid on the basis

that his claim lacks reasonable prospects of success, this would not

constitute a denial of access to court unless it could be shown that

the decision to refuse legal aid was arbitrary (see e.g. Application

No. 8158/78, Dec. 10.7.80, D.R. 21 p. 95).

The Commission recalls in the present case that the applicants

were refused legal aid by the General Committee on the ground that the

subject-matter of the dispute did not justify the potential cost of

the proceeding and that this decision was upheld by the Area Committee

which further doubted whether the applicants would be able

successfully to pursue the proceedings. The Commission further

recalls that in the judicial review proceedings, the High Court and

Court of Appeal found nothing improper or unreasonable in these

decisions. The Commission also notes that there is no evidence to

indicate that the applicants are not able to pursue the proceedings in

the absence of legal aid.

The Commission notes that the applicants complain that the

refusal of legal aid will also, as a result of the relevant

legislation, have the effect that if they are successful they will

have poor prospects of recovering their costs and that this acts as

a disincentive and places them at a disadvantage vis-à-vis the

defendants who are legally aided. However, while Article 6 para. 1

(Art. 6-1) of the Convention guarantees to litigants effective access

to court for the determination of their "civil rights and

obligations", it cannot be interpreted as guaranteeing that a

successful party be reimbursed his costs either from the other party

or the State. The Commission further notes that the applicants are in

fact continuing with the proceedings. In these circumstances the

Commission finds that the applicants have failed to establish that the

very essence of their right of access to court has been impaired or

that the provision of legal aid to the defendants will deprive them of

a fair hearing.

In light of the above circumstances, the Commission finds that

the applicants' complaints fail to disclose a violation of Article 6

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

It follows that this complaint is manifestly ill-founded

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

2. The applicants also complain that they have no effective

remedy for the violation of their rights to peaceful enjoyment of

their possessions. They invoke Article 13 (Art. 13) in conjunction

with Article 1 of Protocol No. 1 (P1-1).

The Commission recalls however that the applicants are

pursuing civil proceedings for the recovery of their land and damages

for trespass. The Commission notes that the applicants have

complained of a refusal of a legal aid and that they have poor

prospects of recovering any award of costs. However, the Commission

has already found that the applicants have not thereby been deprived

of effective access to court and that they are nonetheless able to

pursue those proceedings. Further while an award of costs may not be

forthcoming from the legal aid fund, the applicants if successful

could still be awarded damages and an order for the recovery of their

land.

The Commission accordingly finds the applicants' complaints

disclose no appearance of a violation of Article 13 (Art. 13) of the

Convention in conjunction with Article 1 of Protocol No. 1 (P1-1).

It follows that this complaint 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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McKINNON v. the UNITED KINGDOM

McKINNON v. the UNITED KINGDOM

LEXI