SECOND SECTION

DECISION

Application no. 56846/00 by Sukhdev Singh BIRK against the United Kingdom

The European Court of Human Rights (Second Section) , sitting on 9 December 2003 as a Chamber composed of

Mr J.-P. Costa , President , Mr A.B. Baka , Sir Nicolas Bratza , Mr Gaukur Jörundsson , Mr L. Loucaides , Mr C. Bîrsan , Mr M. Ugrekhelidze, judges and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 3 March 2000 and registered on 26 April 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Sukhdev Singh Birk, is a United Kingdom national, who was born in 1953 and lives in Blackburn, Lancashire. He is represented before the Court by Mr A. Lockley, a lawyer practising in Sheffield. The respondent Government are represented by Mr J. Grainger, Foreign and Commonwealth Office, London.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

Until October 1996, the applicant and his wife were in partnership together, running nursing homes in Blackburn and the surrounding area. Earlier in 1996, the applicant had suffered a stroke. His wife was unable to continue to run the business on her own and, as a result, in October 1996 they were both declared bankrupt. The Official Receiver (“OR”) was appointed to manage the insolvency and subsequently Begbies Traynor was appointed as the Trustee in Bankruptcy. Until 1998, the applicant and his wife continued to run the business and paid a monthly sum to the Trustee in Bankruptcy, but following a decline in referrals of clients, they were forced to sell the business.

In or around May 1999, the applicant first noticed that his post was being diverted. He had expected to receive a letter, which did not arrive. He enquired with the postman and was told that his and his wife's mail was being directed to the OR. The applicant had received no notification of this action.

He subsequently discovered that an order had been obtained in the Blackburn County Court, pursuant to Section 371 Insolvency Act 1986 (“the 1986 Act”), redirecting all his mail to the OR for a period of three months. The first order disclosed was made on 14 May 1999 by the OR. The applicant applied, unsuccessfully, to set aside the first redirection order, but the application was dismissed by the court on 14 June 1999.

Further orders were made on 23 August 1999 and 6 September 1999, each for a three months period of redirection, on behalf of the Trustee in Bankruptcy.

The applicant and his wife have been extremely distressed by the diversion of their mail. It took approximately a week for redirected mail to be sent on to them by the OR and the Trustee in Bankruptcy. In one instance, the applicant was sent a letter from his family in India, informing him that a relative had died. Due to the redirection, he found out about it a week after the letter would otherwise have been received. Furthermore, it was not just the applicant and his wife's mail that was being redirected, but also post addressed to their daughter.

On 30 November 1999 the applicant's representative in this matter received a letter from the Trustee in Bankruptcy's solicitors, Hammond Suddards, referring to the applicant's successful application for legal aid in connection with the potential judicial review action, which amounted to a breach of the applicant's right to obtain legal advice in confidence. The Trustee in Bankruptcy had obtained the applicant's legal aid certificate by virtue of the redirection of his post.

His bankruptcy order was due to expire on 19 October 1999. However, following some confusion about him attending the public examination, his bankruptcy was extended under Section 279 IA 1986. However, the Trustee in Bankruptcy's solicitors indicated in October 1999 that they did not intend to seek a further redirection order.

B. Relevant domestic law

Section 371 of the Insolvency Act 1986 provides as follows:

“1. Where a bankruptcy order has been made, the court may from time to time, on the application of the official receiver or the trustee of the bankrupt's estate, order the Post Office to re-direct and send or deliver to the official receiver or trustee or otherwise any postal packet (within the meaning of the Post Office Act 1953) which would otherwise be sent or delivered by them to the bankrupt at such place or places as may be specified in the order.

2. An order under this section has effect for such period, not exceeding three months, as may be specified in the order.”

Trustees in Bankruptcy have other statutory powers, which are more stringent than the power to apply for a re-direction order but which may nonetheless need to be used, in appropriate cases, if Trustees are properly to investigate the bankrupt's affairs for the ultimate benefit of his creditors. In particular, under section 365 of the Insolvency Act 1986, a Trustee may obtain a warrant authorising him to seize property, books and/or records falling into the debtor's estate. Furthermore, section 366 of the Act allows the court (on application by a Trustee) to summon a variety of persons before it to give an affidavit and/or produce documents.

A bankrupt owes a statutory duty, pursuant to section 333 of the Insolvency Act 1986, to give to the Trustee such information as to his affairs, attend meetings with the Trustee and do such other things as the Trustee may reasonably require for the carrying out of his relevant functions.

COMPLAINT

The applicant complains under Article 8 of the Convention about interferences with his correspondence and with that of his wife and daughter.

THE LAW

The Court notes that the Government in a letter dated 13 October 2003 informed the Court that they have agreed to pay to the applicant GBP 2,500 to cover non-pecuniary loss, together with GBP 7,000 inclusive of VAT in respect of solicitors' fees and GBP 2,500 in respect of Counsel's fees, in full and final settlement of his claim. By a letter dated 11 September 2003, the applicant confirmed that he would be prepared to accept the offer of settlement in these terms.

Having regard to Article 37 § 1 (b) of the Convention, the Court finds that the matter has been resolved. Furthermore, in accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the examination of the application to be continued.

Accordingly, the case should be struck out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

S. Dollé J.-P. Costa Regist rar President