THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42116/98 by Shehnaz SOMJEE against the United Kingdom

The European Court of Human Rights, sitting on 29 May 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr P. Kūris , Mrs F. Tulkens , Mr K. Jungwiert , Sir Nicolas Bratza , Mr K. Traja , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 21 December 1997 and registered on 8 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 partial decision of 7 March 2000,

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 is a British national, born in Karachi, Pakistan, in 1953 and living in Melling , Merseyside. She is represented before the Court by Mr. E. Abrahamson of A.S.Law Solicitors, Liverpool. The respondent Government are represented by their Agent, Mr H. Llewellyn of the Foreign and Commonwealth Office.

Particular circumstances of the case

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

The applicant qualified as a doctor in Pakistan in 1978 and came to the United Kingdom in 1980. In 1986 she was appointed to the post of Ear, Nose and Throat registrar at Walton Hospital in Merseyside.

In July 1988, the Mersey Regional Health Authority (“the Health Authority”) held reviews of the nine non-rotational registrars, including the applicant. The applicant alleges that she was treated less favourably than others, on racial grounds, in relation to the review and in relation to other aspects of her training and employment.

On 25 October 1988, the applicant commenced proceedings in the Liverpool Industrial Tribunal (“the Tribunal”) against the Health Authority and others alleging discrimination contrary to the Race Relations Act 1976 (“the first claim”). The first claim was dismissed after a hearing which lasted five days in February and April 1989. The applicant applied for a review of the decision.

In March 1989, the Health Authority informed the applicant that her contract of employment would not be renewed. In April 1989, the applicant qualified as a Fellow of the Royal College of Surgeons. On 1 June 1989, the applicant’s contract of employment expired and she was dismissed.

She subsequently brought further proceedings in the Tribunal on 2 August 1989 in which she made allegations of victimisation against the Health Authority and five other respondents (subsequently reduced to one other respondent) (“the second claim”). On 23 August 1989 she lodged another claim in which she alleged against the Health Authority that she had been unfairly dismissed (“the third claim”). The “fourth claim” was commenced on 11 April 1990 in which she made allegations of victimisation against an individual colleague.

In August 1989, the Tribunal indicated that the second claim would be “held in abeyance”, pending the completion of the review hearing in respect of the first claim.

The review hearing in respect of the first claim took place between August and November 1989, and the Tribunal confirmed its original decision. The applicant appealed to the Employment Appeal Tribunal (“EAT”) in respect of both the original decision and the review by the Tribunal. These appeals were lodged in June and December 1989 respectively and were conducted together.

In January 1990 the Tribunal gave notice of its proposed listing of the second claim for hearing between 5 and 9 March 1990. The respondents rejected this proposal due to, inter alia , non-availability of their counsel and their view that a preliminary hearing was required first to deal with interlocutory matters. The Tribunal accordingly held a preliminary hearing on 16 March 1990, where it refused the respondents’ application for a costs warning. A few days later the Tribunal refused an application by the respondents for a further preliminary hearing to consider whether the applicant’s allegations were time-barred. The Tribunal then suggested that a full merits hearing be held between 30 April and 4 May 1990 and rejected a further request for postponement prompted by non-availability of the respondents’ counsel.

In April 1990 the applicant’s solicitors requested that the fourth claim be consolidated with the second claim. The Tribunal stayed proceedings on the second claim and held a preliminary hearing on the fourth claim in June 1990, at which it dismissed that claim as having been brought outside the relevant limitation period.

On 21 August 1990 the applicant’s solicitors wrote to the Tribunal requesting that it list the second claim for a full hearing. The Tribunal accordingly proposed a number of different hearing dates between October 1990 and February 1991, but these were rejected on grounds of non-availability of the applicant’s counsel and of the respondents’ witnesses. On 7 December 1990 the Tribunal offered a hearing date in April 1991.

On 13 December 1990, the Tribunal, following a request by the respondents, stayed the substantive hearing of the second claim, pending the hearing of the applicant’s appeals in respect of the first claim. A preliminary hearing had been arranged for January 1991 to consider the prospects of success of those appeals, but this was postponed due to non-availability of the applicant’s counsel and rescheduled for July 1991. The Tribunal wrote to the applicant’s solicitors on 1 May 1991 indicating that, notwithstanding the ongoing delays in relation to the appeals on the first claim, the decision to stay the hearing of the second claim pending those appeals remained in place. The EAT wrote to the respondents’ solicitors on 9 May 1991 acknowledging the considerable delay in the hearing of appeals before it generally at that time, and explained this as being caused by the limited number of available judges. On 22 May 1991, the solicitors acting for the applicant complained to the Tribunal about the delay in listing the hearing of the second claim, and asked the Tribunal to hear that claim without waiting for the appeals in respect of the first claim to be heard.

In July 1991, the EAT granted the applicant leave to appeal in respect of the first claim, and indicated that the second claim should be heard by the Tribunal before the EAT heard the appeals in respect of the first claim.

In October 1991, the EAT stayed the appeals in respect of the first claim and the applicant’s solicitors wrote to the Tribunal requesting that the second claim be listed for a hearing.

A preliminary hearing was held on the second claim on 17 January 1992. At that hearing, the applicant’s solicitor undertook to produce within one month a schedule of specific complaints and the Tribunal proposed a full hearing date in May 1992. The applicant’s solicitor failed to produce the schedule, prompting three reminder letters from the respondents’ solicitors sent in February, March and April 1992. In May 1992 the respondents’ solicitors wrote to the Tribunal asking for consideration to be given to the making of an order requiring production of the schedule. The applicant’s solicitor wrote the same day to the Tribunal indicating that they were awaiting instructions from the applicant. The respondents’ solicitors wrote to the Tribunal on nine further occasions between July 1992 and January 1993 in connection with the continued failure to produce the schedule and the worsening delay. In September 1992 the applicant informed the Tribunal that she had taken over conduct of the second claim from her solicitors. The Tribunal did not respond to that letter.

The Tribunal held a preliminary hearing on the issue of delay in the second hearing in February 1993. Both parties applied at that hearing to strike out the other’s case on grounds of want of prosecution. On 8 June 1993, the Tribunal gave its decision in respect of that hearing, refusing to strike out the second and third claims, ordering the respondent to file an amended Notice of Appearance within 42 days and indicating that the substantive hearing in the second claim should proceed as quickly as possible. The Tribunal said that, in reaching its decision (at paragraph 2):

“...The Chairman is all too conscious of the time which has already elapsed since the date of the hearing, but the general pressures of incoming work upon the Tribunals continue quite relentlessly, and his absence through illness, earlier in the year, although not protracted, was sufficient in itself to create some further accumulation of matters, many of them weighty and not capable of easy disposal...”

and (at paragraph 9):

“...the Tribunal has been most conscious of the considerable delays which have already occurred but also that that cannot solely be attributed to one or other of the parties. Moreover, the Tribunal itself, even allowing for the extremely difficult general pressures, most [sic] acknowledge a share of responsibility. No-one, unfortunately, emerges without blemish.”

The respondents did not file the amended Notice of Appearance until 27 August 1993, more than five weeks late, prompting the applicant to apply on 15 August 1993 to have the respondents’ defence struck out. That application was heard and refused by the Tribunal on 2 December 1993. In January 1994, the applicant appealed to the EAT. On 22 September 1994, the applicant’s appeal was dismissed, judgment being delivered by the EAT in November 1994 and a direction being made that a date be fixed for the hearing of the second claim. In December 1994, the applicant wrote to the EAT questioning aspects of its decision and querying whether a review might be appropriate. A review hearing was held in May 1995 and a decision refusing the review delivered in June 1995. In that decision, the EAT lifted the stay which it had imposed in October 1991 on the appeals in respect of the first claim and ordered that the appeals be listed for hearing on 6 November 1995, preferably before the same Tribunal. It also ordered that if the second claim were dealt with on the merits before November 1995, any appeal by the losing party should be listed to be heard by the same Tribunal on 7 November 1995.

The hearing of the second claim was fixed for 5 June 1995. On 31 May 1995, the applicant applied for an adjournment, on the grounds that she was seeking to appeal against the refusal of her application for the case to be transferred away from the Liverpool Industrial Tribunal. The adjournment was refused and the full hearing of the second claim consequently began on 5 June 1995. The applicant indicated that she was participating in the hearing under protest. The hearing took place over a period of seventeen days spread between 5 June and 7 September 1995 and involved the giving of evidence by the applicant and seven witnesses on behalf of the respondents together with consideration of over one thousand documents. On 1 November 1995, the Tribunal dismissed the second claim.

The applicant’s appeal in respect of the dismissal of the first claim was heard by the EAT on 6 and 7 November 1995. The Tribunal reserved its judgment pending an anticipated appeal against the refusal of the second claim.

On 14 December 1995, the applicant appealed against the dismissal of the second claim.

In January 1996, the applicant applied for the third claim to be transferred from the Liverpool Industrial Tribunal. The application was refused, and the applicant appealed to the EAT.

On 3 April 1996, the Chairman of the Tribunal which had heard the second claim provided his comments in writing on the notice of appeal lodged by the applicant in respect of the second claim. The appeal was heard on 6 and 7 June 1996, together with the appeal from the refusal to transfer the third claim. The EAT reserved its judgment on both appeals.

The applicant’s two appeals in the first claim (reserved from 6 and 7 November 1995) and her appeals in the second and third claims (reserved from 6 and 7 June 1996) were dismissed by the EAT in a single judgment dated 25 October 1996 and handed down on 18 November 1996. The applicant applied to the EAT on 26 October 1996 for leave to appeal to the Court of Appeal. The application for leave was refused on 4 November 1996.

On 22 April 1997, the EAT ordered the applicant to contribute the sum of 2,500 GBP to the respondent’s costs of the appeals heard on 6 and 7 June 1996, and refused an application by the Health Authority for the costs of the four appeals dismissed on 26 October 1996. The Tribunal refused the application by the applicant for leave to appeal to the Court of Appeal in respect of the order for costs.

The applicant applied to the Court of Appeal for leave to appeal against the dismissal by the EAT on 25 October 1996 of each of her four appeals. On 7 July 1997, the Court of Appeal refused leave to appeal in all four appeals.

In July 1997, the applicant asked the Tribunal to adjourn the third claim to await the outcome of her application to the European Commission of Human Rights and of an application which she indicated that she was making to the European Court of Justice. The Tribunal refused the applicant’s request for an adjournment, and listed the hearing of the third claim for 1 May 1998.

On 1 May 1998, the Tribunal dismissed the third claim at a hearing at which the applicant declined to appear.

COMPLAINT

The applicant complains that the proceedings brought by her against the respondent health authorities were not concluded within a reasonable time as required by Article 6 § 1 of the Convention.

THE LAW

The applicant complains that the domestic proceedings were not concluded within a reasonable time.

Article 6 § 1 of the Convention provides, so far as material:

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

The Government submit that, in the light of the complexity of the proceedings and the conduct of the applicant and of third parties for whom the Government are not responsible, the time taken to determine the applicant’s various claims was not unreasonable.

In respect of the first claim, the Government point out that the Tribunal conducted three hearings between October 1988 and November 1989, including a full merits hearing lasting five days and a review hearing lasting three days. They state that the postponement of the preliminary appeal hearing in January 1991 until July 1991 was for the applicant’s convenience and from October 1991 until June 1995 the appeals were stayed at the request of the applicant pending hearings on the second and third claims. The Government submit that the applicant thus waived her right to determination of the first claim within a reasonable time. They highlight that neither party made any application to lift the stay. They argue that the claim was dealt with expeditiously once the stay had been lifted, and that the decision to reserve judgment pending a hearing of the applicant’s anticipated appeal in the second claim was reasonable in that it allowed the EAT to have a complete picture of the applicant’s complaints before delivering judgment.

In respect of the second claim, the Government point out that it was factually complex, which gave rise to difficulties in listing as a substantial period of free time had to be found in the Tribunal’s calendar. A number of attempts to list the hearing were frustrated by non-availability of counsel or witnesses. The claim was also procedurally complex, requiring numerous preliminary hearings, and was further complicated by its inter-relationship with the applicant’s other claims. For example, the second claim was suspended pending the hearing of the review, and subsequent appeal, in the first claim. The Government point to the applicant’s conduct as being the primary reason for the delays in determination of the second claim highlighting, inter alia, her presentation of the ill-founded fourth claim, her failure to co-operate fully with the Tribunal’s listing efforts, her failure to clarify the issues, her prolonged and vexatious attempts to strike out the respondent’s defence and her attempts to transfer the claim to another regional tribunal. They indicate that further delays were caused by non-availability of the respondents’ counsel and witnesses which cannot be attributed to the competent authorities. Although the Government accept that those authorities must take some of the blame for the delays in connection with the second claim, they argue that when the proceedings are looked at as a whole their role in the delay was a comparatively minor one.

In relation to the third claim, the Government again submit that the applicant was primarily responsible for the delay and thus waived her right under Article 6 § 1 to complain about the length of the proceedings. She resisted attempts at consolidation with the second claim and made protracted attempts to transfer the proceedings to a different regional tribunal. Once the appeals had been determined in the first and second claims, the applicant continued to resist any hearing of the third claim and did not attend the hearing in May 1998.

The applicant contends that the vast majority of the delay suffered by her in connection with the first, second and third claims was caused by the Tribunal’s decision to stay the second and third claims pending the outcome of the first claim, and then the EAT’s direct reversal of this approach so as to stay the appeal in the first claim pending determination of the second and third claims. The situation was made worse by the subsequent delay in getting the second and third claims listed.

In relation to the first claim, the applicant submits that the delay in the preliminary hearing on the appeals, particularly the six month period following cancellation of the January 1991 hearing, was manifestly unreasonable. She denies the Government’s assertion that she requested that the appeals be stayed pending determination of the second and third claims. She also disputes the Government’s assertion that the decision to reserve judgment in the appeals pending her anticipated appeals in the second claim was a reasonable one, particularly bearing in mind the fact that six years had already elapsed since the appeal was lodged.

In relation to the second claim, the applicant highlights the role played in the listing delays by non-availability of the respondents’ counsel and witnesses. She contends that, since the respondents were public authorities, the Government must take responsibility for the delays which they caused. She states that she continually resisted any stay pending the review of, and subsequent appeal in, the first claim and that she was initially unaware of her solicitor’s failure to produce a schedule of specific complaints following the preliminary hearing in January 1992. Once she became so aware, she says that she sacked the solicitor in question and was only prevented from providing the schedule herself thereafter because of the Tribunal’s refusal to communicate with her directly. She points out that her attempts to strike out the respondents’ defence were in the light of their failure to comply with the Tribunal’s directions and argues that she was entitled to pursue the appeals available to her.

In relation to the third claim, the applicant argues that non-consolidation was irrelevant to the question of delay, and points out that it was the Tribunal which refused to consolidate and the respondent who continually tried to overturn that decision. She claims that she was entitled to seek to transfer the case to a different regional tribunal as she felt she was prejudiced by the Tribunal’s knowledge of her other cases.

The Court considers that the application raises complex issues of law and fact under Article 6 § 1 of the Convention, the determination of which should depend on an examination of the merits. It concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares the remainder of the application admissible, without prejudging the merits of the case.

S. Dollé J.-P. Costa Registrar President