THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42246/98 by Roy Edward JOHNSON against the United Kingdom

The European Court of Human Rights (Third Section), sitting on 29 November 2001 as a Chamber composed of [Note1]

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 with the European Commission of Human Rights on 11 March 1998 and registered on 20 July 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

The applicant, Roy Johnson, is a United Kingdom [Note2] national, who was born in 1 939 and living in Pennycomequick , Devon, England.

A. The circumstances of the case

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

The applicant ran a trout farm in Liskeard, Cornwall, which had been built with money lent by Midland Bank plc (“the Bank”). He lived on the farm premises with his wife. In about 1989, the Bank made a further advance of 30,000 pounds sterling (GBP); this was increased to GBP 50,000 and then to GBP 90,000. The Bank’s lendings were secured by a legal charge on the property which entitled the Bank to claim possession of the property in the event that the applicant and his wife did not comply with an agreed payment schedule.

The applicant and his wife failed to make payments. On 24 February 1995, the Bank brought proceedings against the applicant and his wife seeking possession of the farm. It also claimed a monetary sum in the amount of the money still owed to it. By a late re-amendment of its Particulars of Claim, the Bank sought in the alternative a declaration that the property stood charged in equity (in the event that the court agreed with the applicant’s assertion that the legal charge was not valid).

The applicant and his wife initially filed a joint defence to the Bank’s claim and acted without legal representation. Subsequently, they ceased to co-operate formally and separate amended Defences were submitted. The applicant’s wife was seeking to argue that she had entered into the legal charge as a result of the undue influence of her husband, about which the Bank knew or should have known. In other aspects the applicant and his wife took identical positions, namely that the Bank’s legal charge was invalid because it was blank at the time of execution and that the Bank had increased the amount of money lent to them without consultation and without their authority. They also pursued an identical counterclaim, claiming a declaration that the legal charge was invalid, damages for deductions wrongly made for bank charges and damages for negligence on the basis that the Bank had exercised undue pressure on them to borrow money from it rather than the Halifax Building Society with which they had also been in negotiation.

In May 1996, the applicant and his wife separated.

The applicant and his wife sought separate representation. His wife was granted legal aid throughout the proceedings which followed. The applicant was granted legal aid for the purpose of defending the Bank’s claims and making a counterclaim from 15 August 1996 onwards. As was the standard practice, his legal aid certificate was limited to obtaining further evidence and counsel’s opinion on the merits of his defence and the merits and likely quantum of his counterclaim. It was necessary for the applicant to apply to extend his legal aid certificate if he wished legal representation for his trial.

In about late 1996 or early 1997, the trial was listed to start on 14 July 1997, and to take five days. On 10 May 1997, counsel for the applicant gave the opinion that, while there was a reasonable prospect of establishing that the legal charge was invalid having regard to the fact that the details of the property were entered into the document schedule after the applicant and his wife had signed, there was no defence to the monetary claim and the applicant would be required as a practical result to sell the farm to meet the monetary judgment. The applicant’s defence that he had not consented to the increase in the loan was entirely without substance while his counterclaim, even if well-founded (which was not the case), was only worth approximately GBP 2,000. He concluded that “ it is not possible to say that it is reasonable for the Board to support [the applicant’s] case. I am quite satisfied that the costs of the defence of this action will far outweigh any benefit to the [applicant]” .

On 23 May 1997, the applicant’s application to extend legal aid for the trial was received by the Legal Aid Board. On 11 June 1997, the Legal Aid Board wrote to the applicant to inform him that it was considering whether to discharge his legal aid certificate because “ in view of Counsel’s Opinion it is not considered you have a reasonable prospect of success in this action” . The letter indicated that if the applicant thought his legal aid certificate should not be discharged, he should write to the legal aid office within 14 days of the date of the letter, and stated that the Board had asked the applicant’s solicitor not to do any work in the meantime. The applicant received the letter on 18 June 1997.

On 21 June 1997, the applicant wrote to the Legal Aid Board stating why he considered his legal aid should not be discharged, submitting inter alia that:

“The case is extremely complex with volumes of evidence, and documents, over a three year period, with twenty court appearances to date on pre-trial matters and discovery. At present I do not have my files, and evidence, and would explain that I cannot cope with taking on such a mountain of paperwork, preparing my case, representing myself at such short notice, bearing in mind that the trial date is 14 July 1997 for five days.”

On 2 July 1997, the applicant’s legal aid certificate was discharged.

On 4 July 1997, the applicant sent the Legal Aid Board his notice of appeal against the decision to discharge his legal aid, and asked them to deal with the appeal without a hearing and using written information only.

On 14 July 1997, the trial began at Truro County Court, with the applicant representing himself. The Bank and the applicant’s wife were each represented by solicitors and counsel.

There had been two pre-trial directions hearings. On 4 June 1997, the judge had ordered that Mr S., the applicant’s solicitor at the time the charge was made, be permitted to lodge a statement and that the applicant’s accountant leave his working file in court. On 12 June 1997, the judge ordered that Mr S disclose his working file.

The trial concluded on 18 July 1997. On 22 July 1997, judgment was delivered in favour of the Bank, finding that the applicant’s wife had not been subject to undue influence by her husband, that the Bank’s loan had not been less advantageous than the one offered by the Halifax and that the legal charge entered into by the applicant and his wife was valid. The judge ordered that the applicant and his wife give up possession of the property by 19 August 1997 and pay the Bank the sum of GBP 151,521.10. He rejected the applicant’s application for leave to appeal to the Court of Appeal and also his application for a stay of execution of the possession order.

On 5 August 1997, the applicant appealed to the Court of Appeal against the order and applied for a stay of execution of its possession order. He was assisted by his former solicitors in this process under the Advice and Assistance or Green Form scheme (which provided for advice and assistance short of representation in court). His grounds of appeal were inter alia that the judge had erred in the orders made by him on 4 and 12 June 1997, alleging that the order concerning the accountant’s file had the result that the Bank and his wife’s lawyers had access to privileged documents and that Mr S. and a witness for the Bank had perjured themselves.

On 11 August 1997, the Legal Aid Board wrote to the applicant and indicated that his appeal would be dealt with shortly by the area committee. A second letter from the Board dated 11 August 1997 stated that the appeal would be considered by the area committee on 20 August 1997. On 12 August 1997, the applicant telephoned the Board. On 13 August 1997, the Board wrote to the applicant in connection with his appeal of 4 July 1997 against the discharge of his legal aid certificate. The letter stated: “ I apologise for the fact that we did not action your faxed notice of appeal (received in this office on 4th July) prior to the Court Hearing on 14th July. I consider that we were at fault in either not processing the appeal prior to the hearing or, if that was not possible, at least notifying [the applicant] of that fact.” The letter indicated that the appeal would not be considered, as the court had found against the applicant, informed him that he could apply for legal aid in connection with the application for leave to appeal, and stated that his communication was being treated as a complaint under Stage I of the Legal Aid Board’s complaints procedure.

On 21 August 1997, the Civil Appeals Office acknowledged the applicant’s application for leave to appeal and informed him that his application might be decided by a Lord Justice without a hearing, but that in most cases the Court of Appeal would direct that the application be listed for oral hearing in court, and that if the Court of Appeal directed an oral hearing, the applicant would be notified in due course of the hearing date.

On 27 August 1997, the applicant applied for legal aid in connection with an application for leave to appeal from the judgment of 22 July 1997. On 2 or 3 September 1997, the applicant spoke to a Mr P. at the Legal Aid Board who indicated his view that the applicant had technical grounds for an appeal but that the application for legal aid would be refused. On the same day, the Board wrote to the applicant stating that it appeared unreasonable that the applicant should receive legal aid in the particular circumstances of the case, and that it appeared that the cost of the proceedings would be out of proportion to any benefit likely to be obtained.

The applicant and his wife did not give up possession of their property as ordered and, accordinly, on 2 September 1997 the Bank obtained a warrant of possession, authorising an eviction, if necessary, on 24 September 1997. It appears that the applicant rang the Civil Appeals Office to inform them of this fact and to impress upon them the urgency of holding a hearing in his case. It appears that the Civil Appeals Office informed him that the Court of Appeal would decide whether or not it would grant leave to appeal or a stay before 24 September 1997.

On 4 September 1997, the applicant telephoned the Legal Aid Board indicating that he wished to appeal against the refusal to grant him legal aid and was notified that his appeal would be heard on 24 September 1997. On about 4 September 1997, the applicant notified the Civil Appeals Office by telephone and in writing that his application for legal aid had been refused, and that his appeal against the refusal was due to be heard on 24 September 1997.

On 5 September 1997, the applicant completed a notice of appeal against the refusal to grant him legal aid in connection with his appeal. Also on 5 September 1997, the applicant’s former solicitors wrote to the Legal Aid Board in support of the applicant’s appeal.

On 17 September 1997, the Court of Appeal wrote to the applicant notifying him that his application for leave to appeal would be heard on 19 September 1997. The applicant received the letter on 18 September 1997. Also on 18 September 1997, the Legal Aid Board wrote to the applicant and confirmed that his appeal against the refusal to grant legal aid in connection with his appeal would be heard on 24 September 1997.

On 19 September 1997, the applicant travelled to London and presented his application for leave to appeal in person, with the assistance of a McKenzie friend (an unqualified adviser) whose first acquaintance with the case was the morning of the appeal. Although the application for leave to appeal was ex parte , the Bank was represented by counsel at the hearing of the application. The applicant applied for an adjournment of the application for leave to appeal, in order that his appeal against the refusal to grant legal aid might be heard. The Court of Appeal refused to grant an adjournment but indicated that if, in the course of the application, it appeared that legal representation was necessary, they would keep in mind the application for an adjournment. After hearing the applicant, the Court of Appeal dismissed the application for leave to appeal. It noted insofar as he appealed concerning the orders of 4 and 12 June 1997, he should have appealed against those orders at the time. As regarded the allegations that privileged documents were disclosed, it found that there was no evidence that any such material from his accountant had been referred to by the judge or taken into account by him in reaching his decision and noted that no objection had been made during the trial to the use of any of those documents. It also found that no reference had been made to privileged material held by the solicitor Mr S. beyond what was inevitable and proper in the circumstances.

On 23 September 1997, the applicant telephoned the Legal Aid Board and informed them that he would not be pursuing his appeal against the refusal of legal aid for the appeal, as the application for leave to appeal had been dismissed.

The Bank took possession of the farm pursuant to the warrant for possession, and sold it in order to recover the moneys due to them under the legal charge.

B. Relevant domestic law and practice

In order to qualify for legal aid at the relevant time, the applicant had to satisfy the Legal Aid Board:

(1) that he was financially eligible for legal aid in that his disposable income and capital fell below that prescribed for these purposes (reg. 27 of the Civil Legal Aid (General) Regulations 1989, SI 1989/339);

(2) that he had reasonable grounds for taking or defending the proceedings or making any counterclaim therein (section 15(2) of the Legal Aid Act 1988 (the “legal merits” test);

(3) that it was reasonable in the particular circumstances of the case that he receive legal aid. This test is stated as aiming to strike a balance between the private  interest of the litigant and the public interest that public money should not be used to finance suits or appeals which, compared with the likely cost, will be of no benefit to the individual litigant. Section 15(3)(a) of the Legal Aid Act 1988 therefore aims to ensure that the limited funds available for legal aid are not squandered on weak or trivial cases. The underlying rationale is that public funds are not expended on litigation where a reasonable litigant faced with paying for legal representation out of private funds would choose not to do so. It is also considered that this test protects unassisted parties from having to contest cases which would not be brought, or defended, by litigants acting reasonably who did not benefit from legal aid.

COMPLAINTS

The applicant complains about the possession proceedings, invoking Article 6 § 1 of the Convention. He complains about the late discharge of his legal aid certificate which required him to represent himself during the trial and the refusal by the Court of Appeal to adjourn the hearing of his application for leave to appeal until after the appeal against the refusal of legal aid. He also complains about the disclosure of privileged documents before the trial; the court order directing that two witnesses, whose attendance was ordered pursuant to subpoenas served by the Bank, should draw up witness statements long after witness statements had been exchanged by all parties; perjury by witnesses at the trial; the trial judge refusing to allow him to continue questioning a witness; allegations made about him by counsel for the Bank at trial and findings made by the trial judge in the judgment of 22 July 1997; and the refusal of an application by the applicant to suspend the execution of the warrant for possession of the farm.

He further invokes Articles 8, 10 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention in respect to these proceedings.

THE LAW

1. The applicant invokes Article 6 of the Convention, raising various allegations about the possession proceedings. Article 6 § 1 provides insofar as relevant:

“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.”

(a) Refusal of legal aid before the trial

The Government submit that in this case the applicant did not require legal aid for his trial for the proceedings to comply with Article 6 § 1 of the Convention. The Court’s case-law indicates that there is no right to legal aid in civil cases and that it is compatible for domestic authorities to limit its grant of legal aid in civil cases to those passing a merits or reasonableness test. They submit that the applicant was able satisfactorily to present his case himself and point out that counsel for his wife was representing her interests which were in many respects identical to his own, the procedures were not complicated, the case was not complex and the shortness of time between refusal of legal aid and the hearing largely resulted from the lateness of the applicant’s legal representatives in applying for an extension of the legal aid certificate to cover the trial. The refusal of legal aid did not therefore deny effective or fair access to court.

The applicant submits that his legal aid had been improperly withdrawn at very short notice and that he had no option but to try to represent himself in a case which he considered to be very complex. He submits that he was unable to understand most of the proceedings and did not have experience to deal with court room tactics, particularly after the trial judge made orders allowing the lodging of late witness statements and the solicitor Mr S. to flout the established rule on client’s professional privilege. He further denied that his wife’s case was identical to his. He and his wife were separated and her counsel had been very hostile to him throughout the trial.

The Court recalls that Article 6 § 1 of the Convention embodies the right of access to a court for the determination of civil rights and obligations (see the Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18, p. 18, § 36). There is no automatic right under the Convention to legal aid to pursue a civil action (see the Airey v. Ireland judgment of 9 October 1979, Series A no. 32, p. 15, § 26). The Court’s case-law indicates, however, that if an applicant was refused legal aid in a case where there exist reasonable prospects of success and therefore had no legal representation this could, in certain circumstances, indeed deny an applicant effective access to court (see, for example, McTear v. the United Kingdom (dec.), no. 40291/98, (Sect. 3) 7 September 1999). In that context, it may be noted that the right of access to court is not absolute and may be subject to legitimate restrictions. Where an individual’s access is limited by either operation of law or in fact, the restriction will not be incompatible with Article 6 where the limitation did not impair the very essence of the right and where it pursued a legitimate aim and there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (Ashingdane v. the United Kingdom judgment of 28 May 1985, Series A no. 93, pp. 24-25, § 57).

In this case, the Court observes that the applicant was initially granted legal aid for representation in defending the claims made by the Bank. However, following counsel’s opinion that as the applicant had no defence to the Bank’s claim for return of the monies borrowed there was no prospect of any useful outcome to the proceedings for the applicant, his legal aid certificate was discharged. While it cannot have been an easy matter for the applicant to take up the burden of conducting his own defence, the Court is not persuaded that it was rendered impossible, given the subject matter and nature of this case, for him to put forward the matters in his favour and his answers to any allegations made against him by the Bank. Insofar as any difficulty might have arisen from the short lapse of time between discharge of the legal aid and the commencement of the trial proper, the Court notes that the applicant did not make any application for an adjournment to enable him either to seek legal assistance from another quarter or to enable him to further prepare himself. It also considers that there is some force in the Government’s argument that the shortness of time derived, largely, from the failure of the applicant’s legal representatives to act more expeditiously in applying for extension of the legal aid certificate. It appears that the applicant was aware that the trial was listed for 14 July 1997 from the beginning of 1997 at the latest. However, he did not obtain counsel’s opinion on the merits of his defence and counterclaim until 10 May 1997 nor put in his application for extension until 23 May 1997. Though the discharge was not made until 2 July 1997, the applicant had been put on notice by the Legal Aid Board on 11 June 1997 that in light of counsel’s opinion it was likely that his legal aid would be discharged.

In the circumstances, the Court considers that discharge of the legal aid certificate did not deny the applicant effective access to court or deprive the trial proceedings of their fairness.

(b) Refusal of the Court of Appeal to adjourn pending his legal aid application

The Government submit that the applicant himself had requested the Court of Appeal to proceed to decide his application for leave to appeal as soon as possible and that he had not made any objection when the Legal Aid Board fixed the hearing of his appeal against the refusal of legal aid for the Court of Appeal proceedings for a date after that fixed for the Court of Appeal hearing. Indeed, they submit the applicant had not made the Board aware of the Court of Appeal hearing date.

The applicant submits that he had been deprived of the opportunity to obtain professional legal assistance for his appeal. Due to the shortness of time and lack of legal assistance, he had difficulties in preparing and presenting his grounds of appeal. He also denies that he acquiesced in the proposed hearing date of 24 September 1997 for his legal aid appeal and submits that the Legal Aid Board must have been well aware of the timetable of events.

The Court recalls that the applicant lodged his appeal, with the assistance of his solicitors, on 21 August 1997. It concerned procedural matters and not the substance of the judge’s rulings. He was aware from 2 or 3 September 1997 that the Legal Aid Board considered that it was unreasonable for him to obtain legal aid for representation at an appeal as any cost of the proceedings would be out of proportion to the benefit likely to be obtained. It was also at his insistence, due to the date set for his eviction, that the Court of Appeal listed his case for hearing with some urgency. In those circumstances, the Court is not persuaded that the procedure whereby the applicant received short notice of the hearing of the application was in any way unfair. The applicant claims that he put the Legal Aid Board on notice by telephone of the date of the hearing and referred to two letters in support thereof. Since however it is not apparent from any letter or document provided by the applicant that he informed the Legal Aid Board of the date of the appeal or made any application for an expedited hearing, the Court is not satisfied that the Legal Aid Board was put on proper notice by the applicant that he wished a decision to be taken prior to 24 September 1997. The applicant therefore cannot complain of any unfairness in that regard either.

The Court notes that the applicant did bring it to the attention of the Court of Appeal that his appeal against the refusal of legal aid for the appeal was still pending. That court, not unreasonably, proceeded to hear the applicant’s arguments on the substance of his claims, which involved a request for a stay of the imminent eviction, on the basis that they would adjourn if they reached the conclusion that legal representation was necessary. Having heard his submissions, the Court of Appeal found that his grounds of appeal were ill-founded and, impliedly , that no issue arose on which legal representation would assist him.

The Court concludes that the procedure adopted for the applicant’s application for leave to appeal did not deny him access to court or deprive him of a fair opportunity for putting forward his grounds of appeal.

(c) The applicant’s remaining complaints

The applicant has also complained under Article 6 §1 of the Convention about various orders given by the trial judge with reference to witnesses and documents, the trial judge’s intervention to stop the questioning of a witness, the failure of the Court of Appeal to order a stay of execution and the alleged perjury of witnesses etc

It is not for this Court to act as a court of appeal, or as sometimes is said, as a court of fourth instance from the decisions taken by domestic courts. It is the role of the domestic courts to interpret and apply relevant rules of procedural or substantive law. Furthermore, it is the domestic courts which are best placed for assessing the credibility of witnesses and the relevance of evidence to the issues in the case (see, amongst many authorities, the Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, § 32; the Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 247-B, § 34).

The Court finds no indication that the procedures or decisions adopted by domestic courts in this case infringed the fairness requirement at the heart of Article 6 § 1 of the Convention.

(d) Conclusion

The Court finds that the applicant’s complaints under Article 6 § 1 are manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

2.  The applicant has further complained that the proceedings violated the rights guaranteed under Article 8 (respect for private and family life and home), Article 10 (freedom of expression) and Article 13 (right to an effective remedy) and under Article 1 of Protocol No. 1 to the Convention (right to peaceful enjoyment of possessions).

The Court recalls that the applicant’s home was repossessed pursuant to orders of the court which had held that the applicant had failed to fulfil his contractual obligations to the Bank which had loaned him money. It has found above no failure to comply with the requirements of Article 6 in the conduct of those judicial proceedings. In the circumstances, it does not find that any issue arises under the provisions invoked by the applicant in respect of these proceedings and the effects of the decisions which issued.

It follows that this part of the application must also be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Georg Ress Registrar President

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[Note2] To be checked.