Lexploria

The European Commission of Human Rights sitting in private on

12 May 1986, the following members being present:

MM. C. A. NØRGAARD, President

G. SPERDUTI

J. A. FROWEIN

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A. S. GÖZÜBÜYÜK

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

Mrs G. H. THUNE

Sir Basil HALL

Mr J. RAYMOND, Deputy Secretary to the Commission

Having regard to Art. 25 of the Convention for the Protection of Human

Rights and Fundamental Freedoms (Art. 25);

Having regard to the application introduced on 23 November 1983 by

H.W-J. against the United Kingdom and registered on

26 January 1984 under file No. 10782/84;

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, Mr H.W-J, born in 1925, is a solicitor by

profession at present residing in England.

He has been practising as a solicitor in Dorset for 24 years in his

own firm, known as Wallace-Jones and Company. His firm specialises in

property and probate matters. During the existence of his firm he

used the telephone services of the Post Office and the name of his

firm was included in the local telephone directory for the Bournemouth

area. In 1981 responsibility for telephone services was passed to

British Telecommunications (Telecom) by the British Telecommunications

Act 1981 and a new directory was issued in November 1982.

The name of the applicant's firm was omitted from this directory and

also from the trade directory (Yellow Pages) which was issued by

British Telecom (BT) in January 1983. On complaining to BT, it was

pointed out to him that Section 23 of the 1981 Act provides that no

proceedings in tort can lie against the Corporation in respect of any

loss of damage suffered by a person by reason of an error in or

omission from a telephone directory (1).

The applicant's name was absent from the directory for a period of

18 months and from the Yellow Pages for a period of 12 months. He

claims that the consequent loss of business was considerable, as he

would normally expect to acquire two or three new clients per week as

a result of telephone enquiries. He considers that he will have lost

at least £30,000 during this period, in addition to the loss of

existing good will.

_______________

(1) Section 23 (1) of the British Telecommunications Act 1981:

No proceedings in tort shall lie against the Corporation

in respect of any loss or damage suffered by any person

by reason of

(a) failure to provide, or delay in providing, a tele-

communication service, apparatus associated therewith

or a service ancillary thereto;

(b) failure, interruption, suspension or restriction

of a telecommunication service or a service ancillary

thereto or delay of, or fault in, communication by

means of a telecommunication service; or

(c) error in, or omission from, a directory for use

in connection with a telecommunication service.

...

---------------

He states that efforts have been made by his Member of Parliament to

secure a settlement, without success, and that his complaint against

BT falls outside the competence of the Parliamentary Commissioner of

Administration (the Ombudsman). By a letter dated 28 January 1983 the

solicitor to BT pointed out that there was no contractual liability to

him as there was no contract between himself and BT - the telephone

service being supplied by virtue of statutory powers. On

24 February 1983 a further ex gratia offer was made of the equivalent

of one year's free rental of his telephone, the cost of an

advertisement in a local newspaper once a month for six months and, if

required by the applicant, the interception of calls to his home

telephone number to direct business callers. This offer and a further

ex gratia offer of £200 in a letter of 20 July 1983 was rejected by

the applicant.

COMPLAINTS

The applicant complains that there has been a breach of Article 6

para. 1 of the Convention (Art. 6-1) in that his civil right to pursue

a remedy before the United Kingdom courts has been expressly excluded

by Section 23 of the 1981 Act.

He states that he had no alternative to utilising the services of

British Telecom but is denied a legal remedy in respect of its

negligence.

He also complains of a breach of Article 13 of the Convention

(Art. 13).

He states the object of the application is (a) to secure compensation

in respect of his business loss; (b) to ensure that any future error

from the directory carries with it the right for the individual to

obtain adequate and reasonable compensation for such negligence and/or

breach of contract.

SUMMARY OF THE OBSERVATIONS

Respondent Government

Domestic law and practice

The British Telecommunications Act 1981 transferred from the Post

Office to a new public corporation known as British Telecom (BT) power

to provide telecommunications and data processing services.

Telecommunications services were supplied to the public in the same

manner as under the Post Office Act 1969, that is, by virtue of

schemes made under statutory powers. With certain exceptions the

telecommunications service continued to be supplied without any

contractual relationship between the new corporation and users.

Exemption from liability in tort under the 1981 Act (Section 23 - see

FACTS) was similar to that contained in previous legislation, e.g. the

Telephone Act 1951 and Post Office Act 1969.

At the time of the omission of the applicant's entry from the

telephone directories, telephone services were provided under the

terms of the Telecommunications Scheme 1981. Paragraph 75 of the

Scheme empowered BT to take such measures as it thought fit to

mitigate any inconvenience which might be suffered by a subscriber in

consequence of an omission from a telephone directory notwithstanding

the existence of the exemption.

Every telephone directory published by BT contains on its first page a

statement that BT will not be liable in respect of any error or

omission from any directory. It also contains the following entry:

"Although we cannot reprint the directory we will try to mitigate the

inconvenience by suggesting one or more of a wide variety of measures,

including giving postage paid printed cards to send to contacts and

friends, paying for a notice in a local or trade press or, in the case

of telephone calls, having them re-directed. In special cases we may

consider allowing an ex gratia payment of a sum up to a year's

rental."

The telephone directory also outlines a complaints procedure.

Complaints should initially be taken up at the Area Office of BT

following which a reference could be made to the Regional

Headquarters. In the event of a customer continuing to be

dissatisfied, the Post Office Users National Council could be

consulted. This is an independent statutory body set up in 1969 which

could make representations on behalf of the complainant and take the

matter up with BT. If the customer remains dissatisfied, he could

take the complaint up with an independent complaints panel drawn from

members of the Chartered Institute of Arbitrators. After considering

the evidence a fellow of the CIA would make a recommendation which

would be circulated to all the parties concerned. Although such a

recommendation would not be legally binding, BT would normally

consider itself honour bound to accept it.

To succeed in establishing liability in negligence before the courts

in tort he would need to show that there was a recognised duty of care

owed to him by BT, that BT was in fact careless and that it was

reasonably foreseeable that damage would be suffered by him and damage

of the kind of which he complains. The United Kingdom courts have

traditionally been reluctant to allow the recovery of economic loss

without physical damage having also been caused.

Following the passing of the Telecommunications Act 1984 the powers

and duties of BT with respect to the provision of telecommunications

services were vested in a public company limited by shares (BTPLC). In

November 1984 50% of the shares in the company were sold to the public

and since that date BT has operated as a commercial enterprise. BT

now enters into contracts with its customers for the provision of its

services. It also limits its liability in contract and tort under the

terms of those contracts. Such terms are subject to the provisions of

the general law and to the Unfair Contract Terms Act 1977 under which

any provision of a contract with a consumer seeking to exempt or

restrict liability is subject to a test of reasonableness. With the

change in character of the undertaking it was considered no longer

appropriate for the new company to have statutory exemptions from

liability and thus Section 23 was repealed.

Admissibility and Merits

Article 6 para. 1 (Art. 6-1)

The Government submit that in the light of the nature of BT the duties

imposed on it by statute the relationship between the applicant and BT

belonged to the domain of public law. Accordingly, no civil right was

involved.

In the alternative, the limitation of liability was within the margin

of appreciation allowed to States. It pursued a legitimate aim and

was justified by the nature, scale and complexity of BT's operations

(Ashingdane case, Eur. Court H.R., judgment of 28 May 85, para. 57).

In particular:

- it is normal in the United Kingdom and elsewhere, for

commercial enterprises providing a service to the public, e.g.

transport operators, removals, warehouse men, cleaners, to do so on

contractual terms limiting or excluding liability in tort. Such terms

are lawful provided they are reasonable.

- there were more than 23 million entries in the local telephone

directories and 2.5 million entries in the yellow pages. BT could not

offer a fault-free service at a reasonable price. Any costs borne by

BT as a result of claims made against it would have to be made by

telephone users generally, there being no question of private profit.

- the provision of a public service at a reasonable cost was a

legitimate aim to be secured by the legal provisions which govern BT's

operations, including Section 23.

It is a feature common to the provision of telecommunications services

in many countries in Europe, the U.S.A. and elsewhere that there are

similar exemptions. Commonly, liability is limited to personal injury

or physical damage and compensation for economic loss is limited to a

refund of rental charges only. The restrictions in Section 23 are

not, therefore, unusual in the field of telecommunications services.

Finally the Government point out that the applicant did not accept the

offers of compensation made to him under BT's scheme of compensation,

nor did he avail himself of the opportunity for arbitration.

In addition, the applicant's access to court is not wholly excluded

since the Section 23 exemption was confined to loss or damage related

to omissions from a directory. It does not in practice restrict

claims against BT in respect of personal injury - death or physical

damage caused by its operations.

Finally, it is submitted that in the absence of Section 23 it would

have been open to BT to argue that such business loss was not

recoverable under ordinary principles of United Kingdom law.

Article 13 (Art. 13)

It is submitted that no separate issue arises under Article 13

(Art. 13) insofar as the applicant complains under this provision that

his right of access to the courts of the United Kingdom has been

limited by Section 23.

In addition, with reference to the Commission's Report in the case of

Young, James and Webster (Comm. Report. 14.12.79, para. 177) it is

submitted that Article 13 (Art. 13) does not require a remedy against

legislative provisions.

The applicant

The applicant states that his name and that of his firm were

completely eliminated from the 1982 directory after they had been

included for the previous 22 years. BT was well aware of the nature

of his profession which, at that time, forbade any form of advertising

other than that included in telephone or yellow pages directories. In

such circumstances, British Telecom should have realised the absolute

necessity of ensuring the accuracy of the relevant entry. A complete

omission was grossly negligent. Two months after the directory error

BT repeated the omission in the much smaller yellow pages directory

for the Bournemouth District.

Any legal action would be completely ineffective since a statutory

defence exists under Section 23 (1)(c) and an application to have the

matter struck out before reaching court would be a mere formality. In

a letter from BT dated 28 January 1983 it was stated:

"In the circumstances I am sure you will agree that there would be no

point in instituting legal proceedings where the relevant statutes

provide for clear exclusions of liability".

It is immaterial under Article 6 para. 1 (Art. 6-1) whether

proceedings would have been successful or unsuccessful since this

provision provides for a right to individuals to plead their case

before a tribunal.

It is not unreasonable that BT should be held responsible for the

occasional error which may creep into the directories. BT controls

and operates the only public telephone service in the United Kingdom.

As such their duty of care to the public is considerably greater than

that of a private company or even an individual.

Finally, the applicant points out that common law nuisance, defamation

and certain cases of trespass are obvious examples of matters where

the courts will award damages in the absence of physical injury or

physical damage.

Article 13 (Art. 13)

It is true that under the code of practice issued by BT, it is

possible to refer a complaint to arbitration. However, paragraphs 38

to 46 of Section 5 of the Code of Practice state that a claim for loss

of business occasioned by a fault or omission on behalf of BT is

expressly excluded from the arbitration process. The maximum award

under the Code of Practice amounts to no more than the annual rental

charge of approximately £100. Such an amount is considerably less

than consequential loss of business resulting from his firm's omission

from the directory and yellow pages.

THE LAW

1. As regards Article 6 para. 1 (Art. 6-1)

The applicant complains that he is unable to sue British Telecom (BT)

for alleged losses arising from the omission of his firm's name from

the telephone directory and yellow pages because of the existence of a

statutory immunity from liability in tort. He alleges a breach of

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

The relevant part of Article 6 para. 1 (Art. 6-1) provides as follows:

"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. ..."

In the view of the Commission, Section 23 of the Telecommunications

Act 1981 is to be regarded as a provision defining the extent of a

civil right and not as a provision removing the jurisdiction of the

civil courts.

The Commission recalls that Article 6 para. 1 (Art. 6-1) does not

confer on the Commission the competence to determine or review the

substantive content of the civil law which ought to obtain in a State

Party. Nevertheless the Commission has emphasised that a real threat

to the rule of law could emerge if a State were arbitrarily to remove

the jurisdiction of civil courts to determine certain classes of civil

action (See Ashingdane v. United Kingdom, Comm. Rep. 12.5.83,

para. 93; see also Dyer v. United Kingdom, No. 10475/83, Dec. 9.10.84,

paras. 1 - 11 to be published in D.R.).

Following the above approach, the scope of the Commission's review is

limited to examining whether the limitation of the civil claim in

question is arbitrary (see No. 10475/83, loc. cit., para. 7).

In the present case the Commission notes that Section 23 (1) of the

British Telecommunications Act 1981 states that proceedings in tort

will not lie in respect inter alia of omissions from "a directory for

use in connection with a telecommunications service".

The Commission notes that, in the field of telecommunications, such a

limitation of liability is considered to be an essential condition of

producing telephone directories which contain millions of user entries

(see above p. 5) as well as offering a telephone service to the public

at a reasonable cost.

Finally, the Commission notes the existence of a compensation scheme,

albeit of a limited nature, in respect of such omissions and that in

the circumstances of the present case an offer of compensation had in

fact been made.

In the Commission's view, therefore, the limitation of the applicant's

civil claims cannot be described as arbitrary.

The Commission concludes, therefore, that this part of the application

does not reveal a breach of Article 6 para. 1 (Art. 6-1) and must be

rejected as manifestly ill-founded within the meaning of Article 27

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

2. As regards Article 13 (Art. 13)

The applicant further complains that he is denied an effective remedy

in respect of his complaint.

Article 13 (Art. 13) provides as follows:

Everyone whose rights and freedoms as set forth in this Convention are

violated shall have an effective remedy before a national authority

notwithstanding that the violation has been committed by persons

acting in an official capacity.

However, both the European Court of Human Rights and the Commission

have held that this provision does not guarantee a remedy in respect

of complaints directed against legislative provisions as in this case

(see case of James & Others, Eur. Court H.R., judgment of 21 February

1986 para. 85; see also Young, James & Webster v. United Kingdom,

Comm. Rep. 14.12.79, para. 177).

This complaint must therefore be rejected as incompatible ratione

materiae with the provisions of the Convention within the meaning of

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

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(J. RAYMOND) (C. A. NØRGAARD)

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WALLACE-JONES v. THE UNITED KINGDOM

WALLACE-JONES v. THE UNITED KINGDOM