THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38914/97 by Patrick ALLFREY against the United Kingdom

The European Court of Human Rights (Third Section) , sitting on 26 September 2000 as a Chamber composed of

Mr J.-P. Costa, President ,

Mr W. Fuhrmann,

Mr L. Loucaides,

Mr P. KÅ«ris,

Sir Nicolas Bratza,

Mr K. Traja,

Mr M. Ugrekhelidze, judges ,

and Mrs S. Dollé, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 27 February 1996 and registered on 9 December 1997,

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 and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a citizen of the United Kingdom, born in 1940 and living in Malvern in Worcestershire.

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

The applicant brought proceedings against the local authority, the Southend on Sea Borough Council (“the Council”), in which he challenged a civil action brought by the Council in connection with his barge. The action was compromised on 18 November 1981. Thereafter, in December 1982, the Council took possession of the barge and its contents, and sold them.

On 29 January 1988, the applicant issued a writ in which he claimed that the Council was not entitled to sell the barge and contents, and had not properly accounted for the proceeds of sale. The writ was served on the Council on 8 February 1988 and a statement of claim was served on 6 April 1988. The Council responded with a Defence and Counterclaim, and a Request for Further and Better Particulars of the Statement of Claim on 28 June 1988. The applicant served a Reply and Defence to Counterclaim and a Request for Further and Better Particulars of the Defence on 22 November 1989. On that date he also supplied responses to the Council’s request for Particulars. Pleadings were deemed (by the Rules of the Supreme Court) to be closed in December 1989. The applicant’s summons for directions was issued on 30 May 1991 and a hearing took place on 2 July 1991.

On the 16 July 1991 the applicant issued a summons for specific discovery. On the same date the Council issued a summons applying to strike out the applicant’s claim for want of prosecution. The summonses were due to be heard together on 5 August 1991, but were adjourned due to lack of time.

In June 1992 the applicant took steps to have his summons restored for hearing. On 28 August 1992 the applicant’s summons was adjourned for 28 days; it was adjourned for a second time at the request of the parties from 21 November 1992 to 6 January 1993.

On 6 January 1993 a District Judge acceded to the Council’s submissions that the applicant had been guilty of inordinate and inexcusable delay, causing prejudice to the Council, and he accordingly dismissed the applicant’s claim.

The applicant appealed to the High Court. The appeal was heard on 14 June 1993 and the judge’s order was sealed on 30 June 1993. The applicant’s appeal was allowed and leave to appeal against the order was refused.

The Council then applied to the Court of Appeal for leave to appeal against the order. The Council’s application was rejected on the papers by Lord Justice Hirst on 29 September 1993, the decision being set out in an order dated 7 October 1993. The Council therefore applied for, and secured, an oral hearing before the Court of Appeal on 7 December 1993, at which hearing leave to appeal was granted.

The parties lodged bundles of documents for the appeal on 7 February 1994. The bundles were approved by the Court of Appeal on 16 February 1994. There was subsequently a clarification of the law on dismissal for want of prosecution in a leading decision by the House of Lords (Roebuck v Mungovin [1994] 2 AC 224). This led to the Council amending its notice of appeal, and the appeal bundles were finalised by 17 March 1994.

On 9 August 1994 the Council’s appeal was listed to be heard on 13-14 February 1995. On the 14 February 1995 the Court of Appeal, relying upon the decision of the House of Lords in Roebuck v Mungovin , allowed the Council’s appeal and dismissed the action for want of prosecution. The Master of the Rolls, Sir Thomas Bingham , who gave the leading judgment, referred to the “regrettable lapse of time” prior to the hearing of the appeal by the Court of Appeal.

By a letter dated 21 February 1995, the applicant sought the leave of the Court of Appeal to appeal to the House of Lords. This was refused on 27 February 1995. The applicant then presented a petition for leave to appeal to the House of Lords on 14 March 1995. The applicant failed to lodge the relevant documents with this appeal. The judicial office of the House of Lords requested the documents of the applicant on 28 June 1995 and again on 7 November 1995. On 31 January 1996 the Appeal Committee rejected the applicant’s petition for leave.

COMPLAINTS

The applicant claims that he was deprived of his livelihood and compelled to devote his entire active time and efforts in attempting to obtain redress. He alleges a violation of Article 6 § 1 of the Convention. He also invokes Article 1 of Protocol No. 1 of the Convention.

THE LAW

1. The applicant alleges a violation of Article 6 § 1 of the Convention, which provides, so far 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 ... .”

The Government put the total period in the present case at eight years and two days. They submit, however, that there were specific time periods, amounting to approximately 3 months in total, which were allowed for the parties to submit notices of appeal and cross appeals, and that these should be excluded from the relevant period for the purposes of Article 6. The Government accept that the applicant’s action against the Council did not raise any factual or legal issues of particular complexity. However, they note that the question of dismissal for want of prosecution, which ultimately determined the proceedings against the applicant, was considered by four different levels of the domestic legal system: the District Judge, the High Court Judge, the Court of Appeal and the Appeal Committee of the House of Lords. Further, the Government submit that the applicant was to blame for the lapse of time between the issue of the writ (29 January 1988) and the date on which the District Judge dismissed the action for want of prosecution (6 January 1993), and they note that the applicant was held by the domestic courts to have been guilty of inordinate and inexcusable delay in the pursuit of his claim.

As regards the initial period up to the striking out of the action, the applicant claims that he did what he could to advance the proceedings.

The Court finds that the period to be considered in the present case for the purposes of Article 6 § 1 of the Convention runs from the date of commencement of proceedings (29 January 1988) until the date of the rejection of the applicant’s petition by the Appeal Committee of the House of Lords (31 January 1996), that being the last act of the proceedings in the domestic legal system. This amounts to a period of eight years and two days.

According to the Court’s case-law, the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case and the conduct of the applicant and the authorities dealing with the case (see, among other authorities, Pélissier and Sassi v. France [GC], no. 25444/94 ECHR 1999-II, 25.3.99, § 67 ).

As to the complexity of the case, the Court considers that the subject matter of the proceedings was not of particular complexity, but notes that a procedural point arose in the case which was of general application and importance, and which led to oral appeals being heard before the High Court Judge and the Court of Appeal.

As to the applicant’s conduct, the Court finds that substantial periods of delay from the issue of the writ on 29 January 1988 up until the District Judge’s decision of 6 January 1993, when he dismissed the action for want of prosecution, can be attributed to the applicant. The Court notes in particular the fact that there was a delay of approximately 17 months before the applicant served a Reply and Defence to the Counterclaim on 22 November 1989, a further delay of 17 months between the close of pleadings and the applicant issuing a summons for directions on 30 May 1991 and that, after the hearing on 5 August 1991 was adjourned, the applicant took no steps to have it restored until June 1992.

As to the conduct of the authorities, the Court notes that there was a period of three years and twenty-five days between the decision of the District Judge on 6 January 1993 and the termination of the appeal procedure on 31 January 1996, when the Appeal Committee of the House of Lords rejected the applicant’s petition for leave to appeal. The Court observes that as regards the period from 14 March 1995, when the applicant petitioned the House of Lords, to the final decision of the Appeal Committee refusing leave on 31 January 1996, (a period of ten and a half months), some of the delay is attributable to the applicant for failing to submit the relevant documents, despite two written requests from the Judicial Office. As to the remainder of the period, the Court also notes that during this period of approximately two years two months, the applicant’s case was considered on appeal by a High Court Judge; there was then both a written and an oral consideration by the Court of Appeal as to the Council’s application for leave to appeal, and in addition there was a full oral hearing before the Court of Appeal.

The Court would endorse the view of Sir Thomas Bingham that there was a regrettable lapse of time prior to the hearing before the Court of Appeal. However, in all the circumstances, and in particular taking into account the delays attributable to the applicant and the levels of jurisdiction which considered the applicant’s case between the period of 6 January 1993 and 31 January 1996, the Court considers that the “reasonable time” requirement of Article 6 § 1 was met in the present case.

It follow that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and that it must be rejected pursuant to Article 35 § 4.

2. The applicant complains that the Council wrongly took possession of his barge and its contents and then sold them in December 1982. He also claims that he was deprived of his livelihood and compelled to devote his entire active time and efforts to attempting to obtain redress. He refers to Article 1 of Protocol No. 1, which guarantees property rights and, again, to Article 6 § 1 of the Convention.

The Court recalls that, by virtue of Article 35 § 1 of the Convention, it may only deal with a matter when domestic remedies have been exhausted. One aim of the rule is to give States the opportunity to put matters right through their own legal system before a case is lodged with the Convention organs ( Akdivar and others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, § 65). One aspect of this rule is that applicants are required to comply with the procedural rules of domestic law in order to ensure that the matters which are subsequently to be raised before the Court are properly put before the domestic courts.

In the present case, the applicant duly put his complaints about the Council’s action to the domestic courts, but was then so dilatory in pursuing them that the action was struck out for want of prosecution. Whilst arbitrary use of striking out powers could give rise to questions of whether access to court was denied in a manner incompatible with Article 6 § 1 of the Convention, the powers applied in the present case pursued the wholly legitimate aim of preventing proceedings from lasting too long, itself a requirement of Article 6 § 1. The Court does not find any lack of proportionality in the use of those powers in the circumstances at issue here.

It follows that the applicant has failed to exhaust domestic remedies as regards his complaint under Article 1 of Protocol No. 1, and that the complaint gives rise to no separate issues under Article 6 § 1 of the Convention.

Accordingly, this part of the application must be dismissed, pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

S. Dollé J.-P. Costa Registrar President