THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46311/99 by John McVICAR against the United Kingdom

The European Court of Human Rights (Third Section) , sitting on 10 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 on 18 December 1998 and registered on 23 February 1999,

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 1940 and living in London. He is represented before the Court by Mr D. Price, a lawyer practising in London. The respondent Government are represented by their Agent, Mr H. Llewellyn of the Foreign and Commonwealth Office.

A. The circumstances of the case

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

The applicant is a journalist. In September 1995 an article was published in “Spiked” magazine in which the applicant suggested that the athlete Linford Christie used banned performance-enhancing drugs. In December 1995 Mr Christie commenced an action for defamation against the applicant, together with the magazine’s distributors and printers.

During the greater part of the proceedings the applicant represented himself because he could not afford to pay legal fees and because under Schedule 2, Part II of the Legal Aid Act 1988, legal aid was not available for defamation actions. His defence was that the allegations made in the article were true.

On 28 June 1996 there was an order for directions which specified inter alia that the plaintiff and the defendants should exchange statements of witnesses of fact by 2 October 1996, and could each call four expert witnesses (a physiologist, a pharmacologist , a psychologist and an athletics coach), but only if the substance of each expert’s evidence was disclosed in a report to be exchanged by 30 October 1996. These time-limits were subsequently extended by consent to some time in December 1996 and April 1997 respectively.

The applicant wished to rely on the evidence of an athlete, Geoffrey Walusimbi , who had allegedly told the applicant that Mr Christie had introduced him to performance-enhancing drugs. In respect of Mr Walusimbi the applicant served the following document dated 19 December 1996:

“The second defendant has issued a subpoena on Mr Geoffrey Walusimbi ... . He intends to adduce evidence from him concerning:

(a) his masked appearance on the Panorama [television] programme “Drug Olympics” ... in which he admitted taking performance-enhancing drugs;

(b) his training relationship with Linford Christie;

(c) his trips abroad with Linford Christie to various Sports Clinics, in particular one in Florida, “First Medical”;

(d) his knowledge of Linford Christie’s own use of performance enhancing drugs.”

One of the expert witnesses whom the applicant wished to call was an osteopath called Terry Moule . Mr Moule had been involved in sports medicine for over twenty years and had treated Mr Christie. He allegedly told the applicant that as a result of his experience he was able to tell by the look and feel of an athlete’s body whether that athlete had taken performance-enhancing drugs, and that he was certain that Mr Christie had been a regular user. However, because of his previous association with Mr Christie, Mr Moule did not wish to give a statement. The applicant did not, therefore, serve any form of report in respect of Mr Moule’s expert evidence as required by the order for directions. Instead in April 1997 he served the following document, which he mistakenly believed to be acceptable under the Rules of the Supreme Court, Order 38, Rule 2A(5) (see below) in place of an expert’s report:

“Terry Moule is a professional physiotherapist and went to the 1992 Barcelona Olympic Games as team physiotherapist for the athletics squad. He is conversant with the effects of steroids on the body and talks about “steroid feel” and the particular look of a body that has been built up using anabolic- androgenic steroids. He is an expert on how the body responds to these drugs when supplemented by power lifting. He understands the effects of ageing on the performance of ‘fast-twitch’ muscle. He has massaged the Plaintiff in the early part of his career.

A subpoena has been taken out for Terry Moule .”

The trial was listed to start on 15 June 1998. On 30 April 1998 the applicant instructed Mr David Price, the solicitor who had been acting for the co-defendant publishers and editor, to represent him. About a week before the trial Mr Christie’s lawyers indicated that they intended to make an application to the trial judge seeking to prevent the applicant from calling a number of witnesses, including Mr Moule and Mr Walusimbi . Mr Moule then agreed to make a signed statement, in which he described inter alia the effects of steroids and the high level of usage amongst athletes, and stated that “it would be almost impossible to succeed at the highest levels in the 100m without the use of banned performance-enhancing drugs”. This statement was served on Mr Christie’s solicitors one working hour before the trial was due to commence.

On 15 June 1998 Mr Justice Popplewell ruled as follows:

“The rules [on disclosure of evidence] are designed to avoid an ambush. ... The obligation is on the party to make sure that it complies with Orders. It has not been suggested that the Defendant was unable to obtain written statements. The fact that he has statements suggests quite the contrary. The Defendant was a litigant in person but Mr Price acted for a period of time and Mr McVicar is not inexperienced. He has very much in mind what is involved. It may be said that Mr Price did not have full conduct but he has had since 30 April 1998. A review would have revealed that the statements did not comply with the Orders made. ... That I have discretion is clear. The exercise of that discretion is to ensure a fair disposal. ...”

The judge continued that he had to balance the prejudice that would be suffered by the applicant if the evidence were excluded against that which would be suffered by Mr Christie if Mr Moule’s testimony were admitted. It would be unfair to allow Mr Moule to give evidence at trial without giving Mr Christie time to call counter-evidence, but to order an adjournment for this purpose would be prejudicial to Mr Christie because the applicant did not have sufficient means to pay the costs of an adjournment. The judge concluded: “If there is more prejudice to the Defendant than the Plaintiff he is the person who is responsible. The fault lies with him. I will not allow Mr Moule’s evidence.” On 16 June 1998 the judge refused to grant the applicant’s request for leave to admit Mr Walusimbi’s evidence, on the grounds that it would be unfair to Mr Christie to be faced with wide allegations about his drug-taking, the details of which he would not know until Mr Walusimbi took the stand.

The applicant appealed against these rulings. On 18 June 1998 the Court of Appeal upheld the trial judge’s rulings in relation to Mr Moule and Mr Walusimbi .

The trial commenced on 18 June 1998. The applicant represented himself. On 3 July 1998 the jury found, by a majority of ten to two, that he had not proved the truth of the defamatory statement. Although Mr Christie did not seek damages, the applicant was ordered to pay the costs of the action and was prohibited from repeating the allegation against Mr Christie.

Following the verdict the distributors and printers reached a settlement with Mr Christie which required the payment of damages to him.

B. Relevant domestic law and practice

1. Defamation

Under English law the object of a libel action is to vindicate the plaintiff’s reputation and to make reparation for the injury done by the wrongful publication of defamatory statements concerning him or her. It is a defence that the defamatory statement was substantially true. The burden is on the defendant to prove the truth of the statement on the balance of probabilities.

2. Legal Aid

Under Schedule 2, Part II of the Legal Aid Act 1988, “[p] roceedings wholly or partly in respect of defamation” are excepted from the scope of the civil legal aid scheme.

3. Exchange of Witness Statements

According to the Rules of the Supreme Court (“RSC”), Order 38, Rule 2A:

“(1)The powers of the Court under this rule shall be exercised for the purpose of disposing fairly and expeditiously of the cause or matter before it, and saving costs ...

(2) At the summons for directions in an action commenced by writ the Court shall direct every party to serve on the other parties, within 14 weeks (or such other period as the Court may specify) of the hearing of the summons and on such terms as the Court may specify, written statements of the oral evidence which the party intends to adduce on any issues of fact to be decided at the trial. ...

(4) Statements served under this rule shall -

(a) be dated and, except for good reason (which should be specified by letter accompanying the statement), be signed by the intended witness and shall include a statement by him that the contents are true to the best of his knowledge and belief; ...

(5) Where a party is unable to obtain a written statement from an intended witness in accordance with paragraph (4)(a), the Court may direct the party wishing to adduce that witness’s evidence to provide the other party with the name of the witness and (unless the Court otherwise orders) a statement of the nature of the evidence intended to be adduced. ...

(7) Subject to paragraph (9), where the party serving the statement does call such a witness at the trial - ...

(b) the party may not without the consent of the other parties or the leave of the Court adduce evidence from that witness the substance of which is not included in the statement served ...

(10) Where a party fails to comply with a direction for the exchange of witness statements he shall not be entitled to adduce evidence to which the direction related without the leave of the Court. ...”

4. Expert Reports

According to the RSC, Order 38, Rule 37:

“(1)... in respect of expert oral evidence, then, unless the Court considers that there are special reasons for not doing so, it shall direct that the substance of the evidence be disclosed in the form of a written report or reports to such other parties and within such period as the court may specify.”

As in Rule 2A(10) in respect of witness statements (above), the court may grant leave to allow expert evidence to be adduced late when the order for directions has not been complied with by either party.

COMPLAINTS

The applicant contends that the lack of legal aid amounted to a violation of his right to effective access to court under Article 6 § 1 and draws attention in this context to the decision to exclude the evidence of Mr Moule and Mr Walusimbi and the fact that the burden was on him to prove the truth of the allegations in the article in mounting his defence.

He also argues that, in the circumstances, his exclusion from legal aid and the subsequent order for costs and injunction prohibiting repetition of the allegations against Mr Christie amounted to a violation of his right to freedom of expression under Article 10. He draws attention again in this context to the exclusion of witness and expert evidence and to the burden of proof which he faced, together with the liability in defamation which English law places on distributors and publishers.

THE LAW

1. Alleged violation of Article 10 of the Convention

Liability of printers and distributors

The applicant complains under Article 10 of the Convention that the distributors and printers of the magazine were liable in defamation unless they could show that they knew nothing about the article and that their ignorance was not due to any lack of care. He claims that he is at risk of an action seeking an indemnity from him as a result of that liability.

The Court notes that there is no evidence that such an indemnity will be sought, and in the circumstances it does not consider that the applicant can claim to be a victim of any violation based on the liability of the distributors or printers. It follows that this aspect of the complaint is incompatible ratione personae with the provisions of the Convention, within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

2. Alleged violation of Articles 6 § 1 and 10

Legal aid, burden of proof and exclusion of evidence

The applicant also complains that the denial of legal aid for the purposes of defending the libel proceedings meant that he was prevented from having effective access to court in breach of Article 6 § 1 of the Convention, which states (as relevant):

“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. ...”

In addition, he complains that the denial of legal aid, the burden placed upon him to prove the truth of the allegations which he made in the article and the court’s exclusion of key witness evidence amounted to a breach of his rights under Article 10, which provides (as relevant):

“1. Everyone has the right to freedom of expression...

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of...the protection of  the reputation or rights of others...”

The Government contend that there has been no denial of effective access to the court in this case. They draw attention to four cases in which the Commission found that the non-availability of legal aid for defamation proceedings did not involve any violation of Article 6 § 1: Application no. 10871/84 Winer v. the United Kingdom 48 DR 154 (1986); Application no. 10594/83 Munro v. the United Kingdom 52 DR 158 (1987); Application no. 21325/93 Steel and Morris v. the United Kingdom (1993); Application no. 27436/95 Stewart-Brady v. the United Kingdom (1997). They explain these decisions by reference to three factors. First, the absence of an express provision, relating to civil proceedings, equivalent to the Article 6 § 3(c) right to legal assistance in criminal proceedings. Secondly, the fact that the Convention leaves States a free choice as to the means to be used in ensuring a right of effective access to court. Thirdly, the legitimacy, given limited resources, of operating systems of civil legal aid which restrict eligibility so long as such restrictions are not arbitrary.

The Government submit that the applicant was, in all the circumstances, well capable of defending the proceedings himself and so his position cannot be compared with that of Mrs Airey in the case of Airey v. Ireland (judgment of 9 October 1979, Series A no. 32).

The Government point out that the applicant was able to publish his views without prior restraint, and argue that the subsequent libel proceedings were in accordance with Article 10 § 2 in that they were “prescribed by law”  and proportionate in pursuit of the legitimate aim of protecting the reputation or rights of others (namely Mr Christie). As the absence of legal aid was compatible with Article 6 § 1, they say that there cannot in principle have been any breach of Article 10 by reason of that absence. They reject the contention that the imposition of a burden of proof on a defendant in libel proceedings infringes Article 10.

The applicant states that he has been denied effective access to the court by reason of the denial of legal aid and draws attention to a number of similarities between his case and that of the applicant in the Airey case. First, the law and procedure applicable to his case were complex and the proceedings were conducted before a High Court and jury. Second, the applicant was faced with a significant burden of proof which would require witness evidence if it was to be met. Third, the proceedings were conducted in a “highly charged emotional environment.” He distinguishes his own case from the Winer , Munro , Steel and Morris and Stewart-Brady cases . He refers also to the exclusion of the evidence of two of his best witnesses as a consequence of his misunderstanding of the requirements laid down for valid service of witness and expert evidence under the RSC and order for directions and says that no such misunderstanding would have occurred had he been legally represented.

The applicant considers that the absence of legal aid, the conduct of the defamation proceedings and the resultant injunction disproportionately restricted his right to freedom of expression under Article 10. He again highlights the burden of proof which he faced in mounting his defence and the exclusion of the evidence of the two witnesses. He states that such obstacles to defending defamation actions may deter writers from publishing material in future, thus further interfering disproportionately with their rights under Article 10. He also argues that the English law of defamation is contrary to Article 10 in that publishers and distributors of defamatory material are held liable unless they can show that they knew nothing about the material concerned and that their ignorance was not due to any lack of care.

The Court considers that these aspects of the application raise complex issues of law and fact under Articles 6 and 10 of the Convention, the determination of which should depend on an examination of the merits. It concludes, therefore, that these aspects of the application are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring them inadmissible have been established.

For these reasons, the Court unanimously,

Declares admissible, without prejudging the merits of the case, the applicant’s complaints that denial of legal aid to him violated Article 6 § 1 of the Convention and that denial of legal aid, the burden of proof placed upon him and exclusion of witness evidence violated Article 10 of the Convention;

Declares inadmissible the remainder of the application.

S. Dollé J.-P. Costa Registrar President