THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48013/99 by Laurence BULLERWELL against the United Kingdom

The European Court of Human Rights (Third Section) , sitting on 12 December 2002 as a Chamber composed of

Mr G. Ress , President , Sir Nicolas Bratza , Mr L. Caflisch , Mr P. Kūris , Mr R. Türmen , Mr J. Hedigan , Mrs H.S. Greve , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 15 December 1998,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Laurence Bullerwell, is a United Kingdom national, who was born in 1939 and lives in Gateshead .

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

A. The claim for disablement benefit

For thirty years the applicant worked in the insulation industry, during which time he was exposed to asbestos dust and fibreglass. In 1988 he was injured in an accident at work and had to cease employment. On 30 May 1990 the applicant claimed disablement benefit in respect of prescribed diseases D1 (pneumoconiosis), D3 (diffuse mesothelioma), D8 (primary carcinoma of the lung where there is accompanying evidence of one or both of asbestosis and/or bilateral diffuse pleural thickening) and D9 (bilateral diffuse pleural thickening).

On 5 July 1990 the applicant was examined by a Special Medical Board (“SMB”) consisting of two specially appointed doctors, and it appears that he was referred for a third opinion to another specialist who examined the applicant on 27 July 1990. On 23 August 1990, the SMB issued a report which concluded that the applicant was not suffering from any of the claimed prescribed diseases or a sequela thereof. The report appears to have been notified to the applicant on 4 September 1990.

B. The first hearing before the Medical Appeal Tribunal

On 24 July 1991, the applicant, through his solicitors, appealed against the refusal of disablement benefit to the Medical Appeal Tribunal (“MAT”). This appeal appears to have been lodged outside the three month time limit provided for, but was nonetheless allowed to proceed. On 16 October 1991 the Secretary of State submitted written observations on the appeal.

On 19 March 1992 the applicant’s solicitors submitted to the MAT a medical report prepared by Dr Rudd and dated 10 March 1992. The doctor had seen the applicant at his solicitor’s request on 20 February 1992, and found that the applicant had “asbestos induced pleural disease comprising bilateral diffuse pleural thickening of mild degree and pleural plaque formation with calcification”, causing a respiratory disability of 5%. There was no clinical or radiological evidence of asbestosis of the lungs and the pleural disease was not a material factor in the applicant’s inability to work, although there was some risk of increased disablement in the future. This report was forwarded to the Secretary of State, whose representative stated on 22 April 1992 that he did not wish to comment upon it.

The applicant was notified of the date for the first MAT hearing on 31 July 1992 and the hearing commenced on 4 September 1992. A differently constituted MAT heard an appeal on the same day in relation to loss of faculty arising out of the applicant’s 1988 accident.

The applicant appeared at the first MAT hearing represented by an official of the Citizens’ Advice Bureau (“CAB”). The hearing was adjourned for the applicant’s representative to obtain the 1992 x-rays referred to in Dr Rudd’s report, so that these could be seen by the tribunal.

A differently constituted MAT continued the hearing on 16 December 1992, and the applicant was again represented by the same official from the CAB. The applicant was medically examined, and his oral evidence and the x-rays and medical report were considered. The applicant submitted that Dr Rudd’s report supported a finding of prescribed disease D9, but the MAT did not accept that the extent or degree of pleural thickening justified the diagnosis of D9 and did not consider that there was evidence of any other asbestos related lung disease.

C. The first appeal to a Social Security Commissioner

By a letter received on 3 March 1993 the applicant applied to the Chairman of the MAT for leave to appeal to a Social Security Commissioner (“Commissioner”), who can hear appeals from the MAT on questions of law and, if he or she finds an error of law, remit the appeal for rehearing to the MAT. Leave to appeal was refused on 1 April 1993 and the applicant was notified of this decision on 7 April 1993.

On 10 May 1993 the applicant applied to the Commissioner for leave to appeal, and on 17 June 1993 the Commissioner directed that prior to ruling on the applicant’s application for leave to appeal he required within 30 days a submission from the Secretary of State. This direction was sent to the applicant by letter dated 23 June 1993.

The Secretary of State’s submissions were sent to the Commissioner’s Office on 24 August 1993. They supported the applicant’s appeal in that they submitted that the MAT’s decision should be held to be erroneous in law, since contrary to the MAT’s findings there is no requirement in the relevant regulations that pleural thickening should have reached any particular extent or degree for a finding of prescribed disease D9 (merely that it should be bilateral and diffuse). The submission concluded that:

“If on consideration of the application the Commissioner grants leave to appeal on the point raised in paragraph 8 above then the Secretary of State gives his consent for the Commissioner to determine the case as if it were an appeal.”

Following receipt of the Secretary of State’s submissions, the applicant submitted his observations on 23 September 1993. The applicant requested an oral hearing of his application for leave. The Secretary to the Commissioner wrote to the applicant on 10 November 1993 as follows:

“Would you please let this office know whether, should the Commissioner grant leave to appeal, you consent to the Commissioner treating the application as the appeal. This will enable the case to be dealt with more quickly.”

On 17 November 1993 the applicant refused to consent to this procedure.

By a decision dated 8 December 1993, the Commissioner granted leave to appeal, and directed, for the purposes of the appeal, that the Secretary of State’s submission on the application for leave should stand as his submissions on the appeal and that the applicant should make any further submissions within 30 days. An additional direction was made for expedition.

By decision dated 16 February 1994, sent to the applicant under cover of a letter dated 7 March 1994, the Commissioner accepted the Secretary of State’s submission in support of the appeal, set aside the MAT’s decision and referred the case to a differently constituted MAT for re-determination.

D. The second MAT hearing

The re-hearing of the applicant’s claim before a differently constituted MAT commenced on 5 August 1994. The hearing was adjourned to obtain the 1992 x-rays, which had been returned to the applicant’s representative at the conclusion of the first MAT hearing. The x-rays were supplied to the MAT by Dr Rudd’s clinic on the afternoon of 5 August, following a telephone request from the MAT’s clerk.

A resumed hearing was scheduled for 23 August 1994, but on 22 August 1994 the applicant wrote to the clerk to the MAT to state that he objected to the constitution of the MAT as it included two members who had sat on the tribunal on 4 September 1992, when the case had been adjourned to obtain the 1992 x-rays. In a letter dated 22 August 1994 handed directly to the applicant’s son, the MAT’s clerk explained that in the tribunal’s view its members were permitted to hear the applicant’s case as they had not made the earlier determination of 16 December 1992 but had sat only at the earlier adjourned hearing. The clerk assured the applicant that he had received the 1992 x-rays on 5 August 1994, so that the hearing scheduled for the next day could proceed, and stressed that it was in the applicant’s interests to attend it.

Accordingly, the second hearing before the MAT continued on 23 August 1994, but the applicant and his representative did not attend. The MAT decided that at no time since 1 August 1989 (the claimed date of onset) had the applicant suffered from one of the prescribed diseases. Having examined the 1992 x-rays and noted the contents of Dr Rudd’s report, the MAT concluded that the pleural thickening was bilateral but not diffuse, and did not therefore support a diagnosis of prescribed disease D9. The MAT noted the applicant’s objection to its constitution, but held that it could lawfully determine the claim since it had made no adjudication on 4 September 1992, but had merely adjourned to obtain x-rays, and that a differently constituted MAT had made the decision of 16 December 1994 which had been submitted for re-determination by the Commissioner. This decision was transmitted to the applicant on 24 August 1994.

E. The second appeal to a Commissioner

By letter dated 4 October 1994 addressed to the Chairman of the MAT, the applicant sought leave to appeal to the Commissioner on a question of law. That application was refused by the Chairman on 18 October 1994, and the applicant therefore pursued his application for leave to appeal by making an application to the Commissioner. By letter dated 19 December, the Commissioner’s Office wrote to the applicant noting that his application had been received on 8 December 1994, that this was after the permitted 42 day period from the date of notification of the Chairman’s refusal (24 October 1994), and asking for reasons as to why the application had been made late.

By an undated letter, the applicant responded to the letter of 19 December 1994 stating that the appeal was late as he had been trying to get the results of some blood tests. On 27 January 1995 the Commissioner issued a direction stating that the application for leave to appeal had been referred to him, and that before he ruled on the application he required within 14 days a written explanation from the applicant as to why be had not attended the MAT hearing on 23 August 1994. The applicant provided this explanation, and by order dated 20 February 1995 the Commissioner granted the applicant leave to appeal out of time.

On 27 April 1995 the Secretary of State’s representative provided his written submission to the Commissioner, concluding that the MAT decision should not be held to be erroneous in law and that the members of the MAT who had sat on 4 September 1992 were not barred from sitting again on 23 August 1994, because on the earlier occasion they had merely adjourned the case. By completion of a form dated 12 May 1995, the applicant did not make any observations in reply.

On 15 June 1995 Dr Rudd sent a second report on the applicant to the latter’s solicitors, in which he found no significant change in the applicant’s lung condition since 1992.

On 27 June 1995 Commissioner Goodman allowed the applicant’s appeal against the MAT’s decision of 23 August 1994. He found that the hearing of 16 December 1992 was a “continuation hearing” from that of 4 September 1992, when the tribunal had heard evidence and completed a written record of the proceedings which, presumably, had been available to the members of the tribunal at the December hearing. It followed that, in the particular circumstances of the case, the two hearings could not be regarded as entirely separate. The Commissioner remitted the case for rehearing and re-determination by a differently constituted MAT. He specified that the new tribunal “should ‘consist of persons who were not members of the tribunal which gave the erroneous decision’ viz. the decision of 13 August 1994 ... . Any other chairman and members can sit, including those who may have sat on earlier medical appeal tribunals (including a purely adjourning tribunal of 5 August 1994)”.

F. The third MAT hearing

On 19 October 1995 the applicant wrote to the MAT to ask that the proposed chairman of the tribunal which was scheduled to hear his appeal on 7 December 1995 should be replaced, as he had allegedly chaired two earlier hearings concerning other claims made by the applicant. The applicant’s solicitors also wrote to the MAT on 28 November 1995 requesting that one of the medical members of the proposed tribunal should be replaced, as he had sat as a member of the tribunal on 5 August 1994 which had adjourned the hearing of the applicant’s case. By letter dated 30 November 1995, the MAT refused the applicant’s request for a postponement of the hearing.

Accordingly, on 7 December 1995 the applicant attended the MAT hearing at which he was represented by a barrister. The applicant gave oral evidence, he was examined by the medical members of the tribunal and his barrister made submissions on his behalf. The MAT also considered x-rays dating from 1990, 1992 and 1995 and Dr Rudd’s reports. They accepted that the applicant had bilateral pleural thickening, but considered that it was localised rather than diffuse and did not amount to a prescribed disease. The MAT reached a provisional decision only, as they were following guidance laid down by the Court of Appeal in the case Kitchen and others v. Secretary of State for Social Security (CA) (30 July 1993), which had indicated that where two experts interpreted the same clinical findings differently, in fairness to the applicant the MAT should be adjourned so that its provisional view could be brought to the attention of the applicant’s advisers. The MAT therefore adjourned to give the applicant the opportunity to go back to Dr Rudd and ask him to explain why on 10 March 1992 he had found the bilateral pleural thickening to be “diffuse”, and the applicant was granted two months within which to indicate to the Independent Tribunal Service whether further representations would be made in relation to the provisional decision. The MAT also confirmed that the time-limit to appeal to the Commissioner would not run from 7 December but instead from the date of the final decision, whenever that might be.

On 12 December 1995 the applicant’s solicitors wrote to Dr Rudd , who replied on 14 December 1995 that it could be difficult to differentiate, on the basis of an x-ray, between pleural plaques and diffuse pleural thickening and that it would be advisable to obtain a high resolution CT scan. On 6 February 1996, the solicitors sent Dr Rudd’s letter to the MAT and informed it that the applicant did not wish to make any further verbal representations and would like the MAT to make its final decision as soon as possible. On 14 February 1996 the Secretary of State indicated that he had no further observations in response to the additional evidence produced by the applicant. On 14 February 1996 the Independent Tribunal Service wrote to the applicant stating that the Chairman of the MAT had directed that the case be re-listed for hearing.

Meanwhile, on 15 January 1996 the applicant had applied to the Commissioner for leave to appeal. That application was refused on 22 April 1996, because the applicant could not appeal against a provisional decision. Before receiving that decision, the applicant also applied to the Chairman of the MAT for leave to appeal, and that application was rejected on 7 March 1996, also on the basis that there was as yet no final decision.

On 26 April 1996 the MAT reconvened its adjourned hearing. It considered Dr Rudd’s most recent letter but stated that it disagreed with the doctor’s interpretation of the x-ray evidence, which the MAT found to show only localised, and not diffuse, pleural thickening. The MAT therefore made a final decision that the applicant did not suffer from a prescribed disease.

G. The third appeal to a Commissioner

By letter dated 7 May 1996 the applicant applied to the Chairman of the MAT for leave to appeal against the decision of 26 April 1996. This application was refused on 20 May 1996. On 15 May 1996, the applicant resubmitted his earlier application for leave to appeal to the Commissioner.

On 11 June 1996 the Commissioner’s Nominated Officer directed that the Secretary of State’s representative should make a submission on the applicant’s application for leave to appeal within 30 days. The Secretary of State’s representative filed submissions dated 17 July 1996.

On 21 August 1996 the Commissioner refused the applicant’s request for an oral hearing of the application for leave to appeal, and granted the application. By submission dated 24 September 1996 the Secretary of State confirmed that he did not support the appeal but stated that he had no further observations to make in the case. The applicant requested an oral hearing of the appeal before the Commissioner, but this was for the time being refused by the Commissioner on 26 November 1996 who directed instead that the parties should have 21 days from receipt of his direction to make “any further written submission they wish”. By letter dated 3 December 1996 the Secretary of State’s representative again confirmed that he had no further comments to make.

On 15 January 1997 the Commissioner directed that he receive a further written submission from the Secretary of State within 30 days concerning any indications on the meaning of the word “diffuse” contained in certain named reports on asbestos related diseases. The applicant was given 30 days from the receipt of that submission to make any written reply, after which the Commissioner would give a final ruling on the applicant’s request for an oral hearing of the appeal.

The Secretary of State’s representative responded to the Commissioner’s request on 17 February 1997, concluding:

“The Commissioner will be aware that the question of whether a claimant is suffering from a prescribed disease is a medical question that can only be determined by the medical adjudicating authorities. The medical appeal tribunal (MAT) has been described as an expert investigating body entitled to use their own expertise to reach their own expert conclusions upon matters of medical fact and opinion ... . They are not bound by any particular medical opinion but have a right and duty to reach their own conclusions on all questions of medical fact. In this case the MAT did not agree with Dr Rudd’s interpretation of the x ray evidence and set out their reasons for doing so. They have recorded that there was sufficient evidence for them to reach a decision in this case. Having regard to all of the circumstances of this case it is submitted that the MAT’s decision was one that they were entitled to make and that it should not be held to be erroneous in law.”

By a direction dated 5 March 1997, the Commissioner granted the applicant’s request for an oral hearing of the appeal, which took place on 8 July 1997. On 23 July 1997 the Commissioner issued his decision (sent to the applicant on 1 August 1997) in which “with some hesitation” he set the MAT’s decision aside. The Commissioner emphasised that he had jurisdiction to grant the appeal only on a point of law and that:

“... the new medical appeal tribunal was perfectly entitled to disagree with Dr R’s medical conclusions, but the legal question is whether they gave adequate reasons for so doing. In this case that is a difficult question to answer and I do not want to fall into the error of being ‘wise after the event’. ... It is not altogether clear to me from the medical appeal tribunal’s reasons ... that they have necessarily dealt with what Dr R was saying. Of course they were at liberty to disagree with it but this difficult question of interpretation [of the medical term ‘diffuse’] did need to be dealt with. Without any adverse criticism of the tribunal, it seems to me that they have not entirely dealt with the point.”

Due to anxiety expressed by the applicant about a further re-hearing before members of the MAT who had already considered his case, the Commissioner agreed to request that the Independent Tribunal Service (ITS) try to schedule the re-hearing in an area in the North East of England outside Newcastle-upon-Tyne (the applicant’s home area). Acknowledging that the proceedings had a long history, the Commissioner expressed the hope that the matter could now be finalised by the new MAT.

H. The fourth MAT hearing

On 19 August 1997 the applicant was informed that the ITS intended to list his case for hearing before the Middlesborough MAT on 1 October 1997, and that this was the earliest possible date available. On 18 September the ITS wrote to the applicant explaining that following the hearing on 26 April 1996 the x-rays had been returned to the hospital where they had been taken, but that the hospital could not now find them. On 24 September 1997 the ITS wrote to the applicant stating that the MAT had the 1990 and 1995 x-rays taken by Dr Rudd , and asked the applicant to send 1992 x-rays taken by the London Chest Hospital, or, if he no longer had them, to agree to new x-rays.

On 1 October 1997 the Middlesborough MAT held a rehearing of the applicant’s appeal. The applicant did not attend because, he stated, in an undated letter to the MAT’s Chairman, that he was dissatisfied with the Commissioner’s decision of 23 July 1997 and the way in which the ITS had handled his case and had no confidence in the ability of the Middlesborough MAT to reach a fair conclusion. According to the MAT’s decision, the applicant:

“had not given any prior indication that he would not be attending. At the outset of the hearing at the [ MAT’s ] request the applicant was telephoned by a clerk. The applicant said he had sent a registered letter to the Tribunal Chairman explaining his absence. The Tribunal recessed while this letter was obtained from the local sorting office, and this letter, together with its enclosures comprising letters sent to the applicant dated 19 August, 18 September and 24 September 1997 were all put before the Tribunal. ... The Tribunal understands that the appellant telephoned a clerk [in response to the letter of 24 September] to indicate that he would not consent to the obtaining of any further x-ray evidence, but gave no indication that he would not be attending the hearing.”

The MAT reviewed the x-ray and other medical evidence before it and decided that it could proceed and reach a proper conclusion on the basis of this material. “Since the applicant had been afforded every opportunity of attending the hearing and had elected not to be present, the [MAT] considered it would not be in the interests of justice to adjourn the case further.” The tribunal set out its interpretation of the definition of the prescribed diseases and decided that at no time since 1 August 1989 had the applicant suffered from such a disease. The MAT’s decision was sent to the parties on 6 November 1997.

I. The judicial review application

By an application for leave to apply for judicial review lodged in the Crown Office of the Queens Bench Division of the High Court on 16 October 1997, the applicant sought to challenge a series of decisions, the latest being that of the Commissioner of 23 July 1997. The application was first considered on the papers, and leave was refused by Mr Justice Ognall on 23 January 1998 on the basis that all bar one of the decisions complained of had been made more than three months before the application and that the application had not been lodged promptly as required under the Rules of the Supreme Court relating to judicial review.

The applicant renewed his application at an oral hearing. Following an oral hearing before Mr Justice Jowitt on 18 March 1998, leave was again refused on the basis that the matters complained of were far too remote in time and/or gave rise to no ground for judicial review.

On 31 March 1998 the applicant renewed his application for leave to the Court of Appeal, and following an oral hearing the application was dismissed on 22 June 1998. The judgment of the Court of Appeal concluded that there was no possible basis upon which the applicant could complain that the Commissioner had erred in law or made an irrational decision of any kind, that the applicant had lost on the facts and that against those findings of fact there was no possible basis of appeal.

On 26 June 1998 the applicant applied to the Court of Appeal for leave to present a petition of appeal to the House of Lords. That application was dismissed on 6 July 1998 on the grounds that no appeal lies to the House of Lords against refusal of leave to apply for judicial review.

THE LAW

The applicant complains, under Article 6 § 1 of the Convention, about the length of the proceedings and further alleges that the tribunals which determined his claim were not impartial as three were found to have erred in law and the fourth came to the same conclusion as the first.

Article 6 § 1 provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by a independent and impartial tribunal established by law ...”

A. Length of the proceedings

The Government accepted that Article 6 § 1 applied to the proceedings, which, they submitted, commenced on 24 July 1991 when the applicant appealed to the MAT and were determined on 6 July 1998, just under seven years later, when after five levels of jurisdiction and at least twelve oral hearings, the applicant’s petition for leave to appeal to the House of Lords was refused by the Court of Appeal. In all the circumstances of the case, and in particular taking account of the applicant’s conduct and the efforts made by the authorities to determine the proceedings with all possible expedition, the Government contended that this period of time was not unreasonable.

They argued that although the proceedings should not have been legally complex, they were complicated by the points which the applicant chose to appeal to the Commissioner, and they were factually complex, requiring expert medical assessment of the applicant’s condition and x-rays, which took time to obtain and to up-date.

This was not a case in which the State authorities caused procedural delays and it was consistent with the proper administration of justice that the applicant be allowed to appeal to the Commissioner on three occasions and that reasonable time be afforded to both sides to submit their observations and prepare for hearings. Although the applicant was, of course, entitled to make full use of his procedural rights, the consequential lengthening of the proceedings could not be held against the Government and on several occasions the applicant’s conduct delayed the proceedings, for example when he or his representatives failed to bring the x-rays relied upon by their expert to hearings, made applications out-of-time, repeatedly requested oral hearings and objected to the composition of the MAT, and failed to consent to the Commissioner’s proposal in November 1993 that he treat the application for leave to appeal as the appeal proper.

The applicant maintained that the proceedings were unreasonably long and that this was the fault of the State authorities.

He pointed out that on each occasion he had objected to the composition of the MAT, the Commissioner upheld his objection and submitted the case for re-examination by a differently constituted tribunal.

The Court recalls that the reasonableness of the length of proceedings is to be assessed in the light of the circumstances of the individual case, regard being had to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the parties’ conduct and that of the competent authorities, and the importance of what was at stake for the applicant in the litigation (see, among many other authorities, Somjee v. the United Kingdom , no. 42116/98, § 67, 15.10.2002).

In civil cases, time runs from the initiation of the proceedings - in this case, 24 July 1991, when the applicant first appealed to the MAT - and continues until the exhaustion of all appeals - in this case, 6 July 1998, when the applicant’s request to the Court of Appeal for leave to appeal to the House of Lords was refused. The proceedings lasted in total, therefore, just under seven years.

They concerned the applicant’s eligibility for disablement benefit in respect of an industrial disease. Throughout the proceedings, and to the present day, the applicant believed that he suffered from a disabling and possibly life-threatening disease caused by his exposure to asbestos dust during his employment in the insulation industry. The fact that the applicant was eventually found not to be suffering from a prescribed disease does not alter the fact that what was at stake for him was of supreme importance. Special diligence was therefore called for on the part of the State authorities in handling his claim (see, mutatis mutandis , Silva Pontes v. Portugal , judgment of 23 March 1994, Series A no. 286-A, § 39).

Although the proceedings were not factually complex and involved only the determination of a single medical issue, the applicant availed himself of every opportunity to challenge the findings and composition of the various tribunals which sat in his case. In total, therefore, there were four hearings before a MAT, two of which had to be adjourned and reconvened, and three appeals to a Commissioner. Following the final determination of his case by the Middlesborough MAT the applicant made an application and a renewed application in the High Court for leave to apply for judicial review; an appeal to the Court of Appeal; and an application to the Court of Appeal for leave to appeal to the House of Lords. The fact that the proceedings were procedurally complex and involved consideration at a number of different instances must be taken into account in assessing whether their overall length was unreasonable.

The Court must examine in detail the applicant’s conduct and that of the State authorities and determine whether either was to blame for unreasonably prolonging the proceedings. It notes, first, that the applicant lodged his appeal against the SMB’s decision on 24 July 1991. The appeal was not heard by the MAT until 4 September 1992, an interval of over 13 months. The Government submit that this delay was caused by the MAT’s desire to hold hearings in the asbestosis and accident claims on the same day, for the convenience of the applicant. The applicant submits that, for a man in his weakened medical condition, it was far from convenient and was in fact unduly stressful to have to attend both hearings on the same day.

Whatever the merits of the MAT’s decision to deal with both claims in tandem on 4 September 1992, the Court does not consider that the time taken to organise this hearing can be considered excessive, even bearing in mind the need for the authorities to proceed with special diligence in view of what was at stake for the applicant. It would have been unreasonable for the MAT to progress to the hearing before the applicant had lodged his medical evidence on 19 March 1992 and before the Secretary of State had responded, on 22 April 1992. Thereafter there was a delay of only just over four months before the hearing took place, and, in the event, the tribunal was obliged to adjourn because the applicant and his representative had failed to bring to the hearing the medical evidence on which they relied. Again, the Court does not consider that the period of just over three months required to organise the resumed hearing was unreasonable.

The applicant’s applications for leave to appeal against the MAT’s decision of 16 December 1992 were dealt with expeditiously, despite the applicant’s refusal to consent to the Commissioner’s treating the application for leave to appeal as the appeal proper. The Commissioner granted leave to appeal on 16 February 1994, and just over five months later, on 5 August 1994, the hearing before the MAT commenced. Once again the hearing had to be adjourned due to the failure of the applicant and his representatives to provide the x-ray evidence on which they relied. The hearing resumed a few weeks later, on 23 August, but the applicant and his representative did not attend, because of the applicant’s objections to the composition of the MAT.

The applicant’s application to the Commissioner for leave to appeal was submitted late, on 8 December 1994, but was allowed and was dealt with without undue delay. The Commissioner granted leave to appeal on 27 June 1995, only just over a month after the applicant indicated that he did not wish to make any observations in reply to those of the Secretary of State.

The new MAT hearing was listed for 7 December 1995, some five months later. Although, in light of the length of time which had by this point elapsed since the applicant first lodged his appeal in July 1991 and the importance of what was at stake for the applicant, it is arguable that an earlier hearing date should have been found, the Court does not consider that this five month delay was sufficient to raise an issue in relation to the reasonable time guarantee in Article 6 § 1. A further four and a half month delay was caused by the fact that, in accordance with English law, the MAT, having identified a difference of medical opinion, was unable to make a final decision on 7 December but had to adjourn to allow the applicant to seek further explanations from Dr Rudd . The Court does not consider that the domestic authorities can be criticised for this adjournment, since it was intended to benefit the applicant and since the reconvened hearing took place on 26 April 1996, only just over two months after the Secretary of State’s response on 14 February to additional medical evidence filed by the applicant’s solicitors on 6 February.

On 7 May 1996 the applicant applied to the Commissioner for leave to appeal against the MAT’s decision of 26 April 1996. Less than a month later the Commissioner made directions for the filing of observations by the Secretary of State, and, on 21 August 1996, just over a month after these observations were filed, leave to appeal was granted. Thereafter the Commissioner made a number of further directions for the determination of the appeal itself, but it was not until 15 January 1997 that he decided that it was necessary for the Secretary of State to file a written submission on the meaning of the word “diffuse”. Although it cannot be said that the period between 21 August 1996 and 15 January 1997 was one of judicial inactivity, the Court considers that time would have been saved if the Commissioner had explicitly requested these observations from the Secretary of State at the outset. Again, however, the Court does not consider that this delay was sufficiently long to give rise to an issue under Article 6 § 1. A further period of four and half months elapsed between the filing by the Secretary of State of his observations on 17 February 1997, as directed by the Commissioner, and the hearing on 8 July 1997. However, the Court notes that the applicant can, to a certain extent, be held responsible for this delay since he repeatedly insisted that the matter be dealt with at an oral hearing rather than on the papers.

The Commissioner’s decision, granting the appeal, was issued on 23 July 1997 and the case was quickly listed for hearing before Middlesborough MAT on 1 October 1997. The MAT’s decision, which was the final determination of the case by a MAT, was sent to the parties on 6 November 1997.

The applicant’s application for leave to apply for judicial review was lodged on 16 October 1997 and, after two oral hearings and consideration at two instances in the High Court and by the Court of Appeal, was refused by the latter court on 22 June 1998, only just over eight months later. The proceedings were finally determined on 6 July 1998, when leave to appeal to the House of Lords was refused.

The Court does not consider that the relatively short periods of judicial inactivity which it has identified above, taken separately or cumulatively, were sufficiently serious to give rise to an issue under Article 6 § 1. In view of the large number of instances which, at the applicant’s request, considered his claim for disability benefit, the Court does not find that the overall length of the proceedings was unreasonable.

It follows that this part of the application is manifestly ill founded within the meaning of Article 35 § 3 of the Convention and must be declared inadmissible in accordance with Article 35 § 4.

B. Impartial tribunal

The applicant also complains that three of the MATs which ruled in his case were found to have erred in law, and that the fourth and final MAT came to the same conclusion as the very first one.

The Court observes that the applicant’s objection to the composition of the second MAT, on the ground that two of the medical members had sat on a tribunal which had previously considered his claim, was upheld by the Commissioner, and the case was accordingly re-heard by a differently constituted MAT. It follows that the applicant can no longer claim to be a victim in relation to this matter ( Saukaitis v. Lithuania (dec.) , no. 41774/98, 14.11.2000). There is no evidence that any of the other tribunals which dealt with the claim for disability benefit were not “impartial”.

It follows that this part also of the application is manifestly ill founded within the meaning of Article 35 § 3 of the Convention and must be declared inadmissible in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Georg Ress Registrar President