THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 49167/99

by Tony SMITH and Owen SMITH

against the United Kingdom

The European Court of Human Rights ( Third Section ) sitting on 28 September 1999 as a Chamber composed of

Mr J.-P. Costa, President , Sir Nicolas Bratza, Mr L. Loucaides, Mr P. KÅ«ris, Mr W. Fuhrmann, Mrs H.S. Greve, Mr K. Traja, Judges ,

with Mrs S. Dollé , Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 6 December 1998 by Tony Smith and Owen Smith against the United Kingdom and registered on 28 June 1999 under file no. 49167/99;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant, Mr Tony Smith, is a British national, living in London , England . The second applicant, Mr Owen McKenzie Smith, also a British national living in London , is the first applicant’s brother.

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

In 1985 the first applicant became a tenant in a house owned by R. His brother, the second applicant, and sister subsequently moved in.

The property was later acquired by the London Borough of Hackney (“the Council”) under a compulsory purchase order following protracted negotiations with R. The Council notified the applicants that as of 8 August 1988 they would henceforth be tenants of the Council. The applicants were also informed that, because the house was in bad condition, arrangements would be made for them to be re-housed. The applicants refused this offer and made unsuccessful attempts as of May 1990 to purchase the property from the Council.

On 25 May 1990 the applicants brought separate actions in Shoreditch County Court against the Council for failure to repair the property. The Council did not file a defence and the applicants recovered damages in default on 24 May 1991. Another action against the Council to recover further costs on the ground that the Council was in continuing breach of its covenant to repair and in contempt of court was dismissed on 24 April 1992.

The second applicant brought an action in negligence against the Council in 1991 after he was injured when the roof of the property fell in. On 5 April 1993 the second applicant applied in the same proceedings for an injunction requiring the Council to put the property into a good and proper condition. The latter application, which was joined by the first applicant, came before Judge Graham QC on 22 April 1993. The applicants asserted for the first time in their amended particulars of claim dated 5 May 1993 that they were secure tenants of the entire property and not separate tenants of individual rooms and could lawfully compel the Council to repair the property as a whole. The Council maintained in its amended defence dated 4 June 1993 that it had no repair obligation and that there was no relationship of landlord and tenant between it and the applicants.

Judge Graham QC proposed that the issue of whether or not the applicants enjoyed a landlord-tenant relationship with the Council be tried as a preliminary issue on 26 August 1993. However, on 25 August 1993 the parties, by consent, agreed to dismiss the preliminary issue, to adjourn generally the applicants’ application for an injunction to repair and to set down for trial the applicants’ claim for damages. It would appear that, while the Council henceforth accepted that it was in a landlord-tenant relationship with the applicants, it denied that the applicants were secure tenants within the meaning of section 79 of the Housing Act 1985.

On 19 October 1993 the second applicant’s claim for damages was heard and Judge Graham QC made an award in his favour. Judge Graham QC adjourned the applicants’ application for an injunction to compel the Council to repair the property pending an inspection of the property.

On 5 May 1994 the applicants issued a writ against the Council to recover the costs of certain repairs which they had carried out on the property at their own expense. On 6 June 1994 the applicants unsuccessfully applied for judgment in default and the Council was allowed to file a late defence. On 1 August 1994 Judge Graham QC notified the parties that automatic directions for the trial of the action applied. On 4 October 1994 Judge Graham QC dismissed the applicants’ applications to have his automatic directions dismissed and the case transferred to the Court of Appeal. The applicants applied to the Court of Appeal for leave to appeal against this decision.

On 17 June 1994, and in parallel to their action to recover the costs which they had incurred in carrying out repairs to the property, the applicants sought to restore the injunction proceedings in view of the Council’s continuing failure to carry out repair work on the whole of the property. For want of time the action was only heard before Judge Graham QC on 15 August 1994. At the hearing on that date, the Council maintained, inter alia , that the applicants were not secure tenants within the meaning of section 79 of the Housing Act 1985 by reason of the fact that that they did not have separate dwellings in the property as required by that section. On that understanding the Council averred that it could not be compelled to repair the whole of the property. Judge Graham QC ordered that the proceedings be adjourned and gave further directions for the trial of the action, including the issue as to whether the applicants had been granted a tenancy of the entire property, or only two rooms plus shared facilities.

The applicants applied to the Court of Appeal for leave to appeal against the decision to adjourn the injunction proceedings. The Court of Appeal considered their application at the same time as their application for leave to appeal against Judge Graham QC’s automatic directions in their action to recover the costs incurred in repairing the property and to have that action transferred to it. In its judgment of 1 February 1995 the Court of Appeal dismissed the applicants’ request for leave to appeal against the adjournment of the injunction proceedings. Lord Justice Ward found that Judge Graham QC was undoubtedly right to allow an adjournment and to give consequential directions for the resolution of the applicants’ status in law with respect to the Council.

The Court of Appeal also dismissed the applicants’ other two applications. In so doing, Lord Justice Ward expressed his surprise at the fact that Judge Graham QC had not given the applicants judgment in default, in view of the fact that the Council was late in filing its defence. Lord Justice Ward added:

“For reasons which are not at all clear, the local County Court does not appear to have acted expeditiously on that application. As far as I can see from the papers placed before us, no defence was filed in this matter until 20 July. Notwithstanding that lapse of time, the County Court did not enter judgment in default of defence and the defence having been duly received, the court issued the automatic directions to ensure that the matter could go for trial.”

Lord Justice Ward also expressed sympathy with the applicants’ feeling of frustration with the conduct of the proceedings and, without in any way impugning his fairness, suggested that Judge Graham QC might wish to reconsider his further participation in the case.

Meanwhile, on 26 August 1994, the Council had served notices to quit on the applicants. On 6 February 1995 the Council sought a repossession order against each of the applicants. The applicants filed a defence on 23 June 1995 contending that they were secure tenants of the property and counter-claimed for damages for breach of the Council’s covenant to repair and a court order that the Council effect repairs on the property.

The claim and counterclaim were heard by Judge Diamond QC in Central London County Court. Judge Diamond QC gave directions for the trial of the actions. The directions made it clear that the first and critical issues to be determined were (a) whether the applicants were granted a tenancy of the entire property or were only tenants of one room each with a right to share other parts of the property and (b) whether they were secure tenants within the meaning of section 79 of the Housing Act 1985. In identifying these issues, Judge Diamond QC observed that the first applicant had informed him that he was no longer seeking a court order that the Council comply with its repairing obligation.

At the start of the proceedings before Judge Diamond QC, the Council applied for an adjournment on the grounds inter alia that it had not been notified of the date of the hearing and that the applicants had not complied with an earlier order for directions. The applicants opposed the application.

Judge Diamond QC accepted to delay the beginning of the trial for no more than two days, considering that any longer period would be undesirable. The judge noted that the matter should have been decided long ago. He observed that the Council had wasted time since the beginning of the litigation and that it should have raised at an earlier stage in the litigation their defence that the applicants were not secure tenants, rather than insisting that the Council was not the applicants’ landlord only to abandon this stance later on. Judge Diamond QC also observed that, although they were represented at earlier stages of the litigation, it was unfortunate that the applicants were not legally represented at the instant trial.

At the trial the applicants objected to the Council’s reliance on an memorandum dated 13 July 1988 which the Council maintained had been drawn up by a council official, M.P., who was not available to be cross-examined in court on its contents. In that statement M.P. recorded that she had visited the property before it was acquired by the Council and noted that the applicant and his brother occupied separate rooms in the property. Judge Diamond QC was satisfied that the memorandum indicated that the applicants let individual rooms in the property from their former landlord, R., under separate tenancy agreements. The judge did not accept the applicants’ submission that R. had let the property to them as a family unit and found that R.’s testimony in support of this assertion was not reliable. The judge attached weight to a letter dated 13 May 1993 which R.’s surveyor, S., sent to the Council, the contents of which confirmed for the judge that there was a letting of individual rooms to the applicants. Judge Diamond QC found additional support in the evidence before him that this state of affairs continued after the Council had acquired the property, including the fact that the applicants themselves only began to assert after 5 May 1993 that they were secure tenants of the whole of the property.

With reference to the facts as found and to the provisions of section 79 of the Housing Act 1985 and to case law thereon, Judge Diamond QC concluded in his judgment dated 19 March 1996:

“... that [the first and second applicant] are each tenants of one room of [the property,] with a right to share the use of the kitchen and bathroom, and ... that neither tenancy is a secure tenancy within section 79 of the Housing Act 1985.”

On 20 June 1997 the Court of Appeal granted the applicants leave to appeal against Judge Diamond’s finding even though the application was out of time. Lord Justice Phillips acknowledged that the facts of the case raised potentially difficult questions of law as to the determination of the applicants’ status vis à vis the Council and urged them to obtain legal representation for the purposes of the appeal.

On 17 June 1998 the first applicant was informed that a legal aid certificate had been refused on the ground that “it appeared unreasonable that he should receive legal aid in the particular circumstances of the case.”

Before the Court of Appeal the first applicant, who appeared in person, contended that the trial judge had erred in admitting the statement of the Council official as set out in her memorandum of 13 July 1988. He contended that the memorandum did not bear the signature of M.P. but of another person. The Court of Appeal rejected that contention on the ground that it saw no reason to conclude that the signature on the memorandum was not that of M.P.

The applicant further maintained that the trial judge did not allow him to submit an affidavit of R., his former landlord, unless he called R. as a witness. The Court of Appeal dismissed this point, finding that the trial judge could properly exclude the affidavit since R., unlike M.P., was available to give evidence and was in fact willing to testify in court.

As to the applicant’s argument that the trial judge should not have admitted in evidence S.’s letter, the Court of Appeal noted that the trial judge had properly admitted the letter not as evidence of its contents but to allow the Council to rely on it to discredit R.’s credibility as a witness.

The Court of Appeal also found that the trial judge could not be faulted for the way he had handled applications for discovery of documents, observing that he had been correct in trying to get the case to trial rather than slowing down the proceedings through the grant of interlocutory orders. The court further found that Judge Diamond QC could not be criticised for refusing the Council’s request for an adjournment at the beginning of the trial. It noted that that decision was taken in the interests of making progress in an action after one year of inactivity in the proceedings and the fact that an adjournment was refused did not prejudice the applicants since they had known since 1993 or 1994 what the Council’s case against them was and had come prepared to the trial to answer that case. On that account, the applicants could not claim that they had been taken by surprise when the case started.

The applicants further maintained before the Court of Appeal that leave should be granted to allow them to adduce evidence which the trial judge had refused to admit. The Court of Appeal noted that the evidence relied on was new evidence which could not be introduced at that stage of the proceedings. The Court of Appeal found that there was nothing to suggest that the trial judge had refused the applicants leave to produce any evidence which could be properly produced at the time. Sir Christopher Staughton, giving judgment, observed:

“It is quite true that the judge told [the first applicant] to sit down, and I dare say he did so in a fairly peremptory manner. The task of controlling a trial is often difficult and if the judge was at times peremptory I think we ought to forgive him for that. But there is no trace whatsoever in the transcript of the hearing of the judge refusing to allow the [the applicant and his brother] to give evidence of that nature.”

The Court of Appeal also refused to admit documents which the Council submitted to it later on in the appeal proceedings.

The Court of Appeal ruled that, even though there was a conflict of evidence, there was material upon which the judge was entitled to find that neither the applicant nor his brother could be deemed secure tenants, and that his direction on the law applicable to the dispute was correct. In the opinion of Sir Christopher Staughton, there were, contrary to the view of Lord Justice Phillips in the leave to appeal proceedings, no difficult questions of law involved in the case, and the trial judge had therefore been correct in proceeding with the trial rather than tolerating further delay in a very long-standing dispute, setting down the case for trial.

Sir Christopher Staughton concluded:

“... having read the transcript (not every word of it but by far the greater part of it) it seems to me that in this difficult case the judge conducted the trial very fairly. I see no ground for interfering with the conclusion he reached and I would dismiss this appeal.”

As to Lord Justice Phillips’ observations in the leave to appeal proceedings that the facts raised potentially quite difficult questions of law as to the status of the applicants, Sir Christopher Staughton opined:

“We are not told what the quite difficult questions of law were. We can see none. The judge’s direction on the law seems to be correct.”

The Court of Appeal dismissed the applicants’ appeal in its judgment of 27 March 1998.

On 3 December 1998 the Appeals Committee of the House of Lords refused the applicant’s petition for appeal.

COMPLAINTS

The applicants complain that the proceedings against the Council were not conducted with due diligence and that the domestic courts did not take the appropriate steps to ensure that the litigation progressed speedily. They assert that there have been excessive delays as a result of the leniency shown by the courts towards the Council’s delaying tactics. The applicants invoke Article 6 § 1 of the Convention.

Again with reference to Article 6 § 1 the applicants contend that they were placed at a disadvantage through having to represent themselves in the proceedings. They also observe that Judge Graham QC had to stand down since the Court of Appeal had implied that he lacked impartiality. In addition, they state that the approach taken to the Council’s evidence by the domestic courts confirmed the procedural inequality which resulted from having to appear as litigants in person. They further complain that they were denied a right of access to a court on account of the Court of Appeal’s decision not to adjourn the appeal hearing to enable them to secure legal representation.

THE LAW

The applicants submit that the proceedings in their case against the Council were unfair and in breach of Article 6 of the Convention, which provides in relevant part:

“1. In the determination of his civil rights and obligations..., everyone is entitled to a fair ... hearing within a reasonable time...”

1. The applicants maintain in the first place that the domestic courts failed to ensure that the proceedings were concluded within a reasonable time. They allege in this connection that the Council had been allowed to use delaying tactics to frustrate progress in the case and was never sanctioned for its failure to comply with court orders. The applicants also draw attention to the fact that the Court of Appeal in the first leave to appeal proceedings was critical of the inactivity of the county court and the “inexplicable delay “ in dealing with the case.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

2. The applicants contend that the domestic courts failed to treat their arguments with proper understanding. They observe that the county court judge in the initial phase of the proceedings had to stand down from further participation in the action following implied criticism by the Court of Appeal of his handling of the case. The applicants state that this criticism implied that the judge lacked impartiality.

The Court observes that the Court of Appeal’s recommendation that Judge Graham QC discontinue his involvement in the case was not in any way motivated by concerns about his capacity to deal with the applicants’ case in an impartial manner. Lord Justice Ward specifically stated that there was nothing to suggest that that judge would not deal with the case with his customary fairness. The Court of Appeal’s proposal was designed to allay any possible doubts which the applicants might have had that the case was progressing in favour of the Council. This did not amount to a finding that there were objective grounds for impugning the impartiality of Judge Graham QC, still less did it amount to a finding of subjective bias on his part. In any event, the case was subsequently handled by Judge Diamond QC. The applicants have not disputed his impartiality from the standpoint of Article 6 § 1.

The Court considers for the above reasons that the applicants’ complaint is inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

3. The applicants maintain that the domestic courts allowed the Council to adduce and rely on evidence of questionable accuracy and validity. They criticise in particular Judge Diamond QC ’s decision to allow the memorandum allegedly signed by M.P. to be produced in court. They are also critical of the decision to allow the Council to rely on a statement from its tax office purporting to show that tenants other than themselves lived in the property. In their contention, this assertion was contradicted by a letter from the Council’s electoral office. The applicants also draw attention to Judge Diamond QC ’s decision not to allow cross-examination on certain aspects of the Council’s evidence. Furthermore, at the hearing before the Court of Appeal new evidence was faxed to the court by the Council in support of its case. The Court of Appeal allowed a three hour adjournment for consideration of those new submissions, which were never communicated to them. They assert that their inability to challenge the new evidence undermined their right to an adversarial procedure and the principle of equality of arms.

The Court recalls that it is not within its province to substitute its own assessment of the facts for that of the national courts. The Court’s task is to ascertain whether the proceedings in their entirety, including the way in which evidence was admitted, were “fair” within the meaning of Article 6 § 1. Furthermore, the requirements inherent in the concept of “fair hearing” are not necessarily the same in cases concerning the determination of civil rights and obligations as they are in cases concerning the determination of a criminal charge. This is borne out by the absence of detailed provisions such as paragraphs 2 and 3 of Article 6 applying to cases of the former category. Thus, although these provisions have a certain relevance outside the strict confines of criminal law, the Contracting States have greater latitude when dealing with civil cases concerning civil rights and obligations than they have when dealing with criminal cases (see the Dombo Beheer B.V. v. the Netherlands judgment of 27 October 1993, Series A no. 274, p. 19, § 32).

Nevertheless, certain principles concerning the notion of a “fair hearing” in cases concerning civil rights and obligations emerge from the Court’s case-law. Most significantly for the present case, it is clear that the requirement of “equality of arms”, in the sense of a “fair balance” between the parties, applies in principle to such cases as well as to criminal cases ( ibidem , § 33).

In the instant case it must be determined whether the applicants were afforded a reasonable opportunity to present their case, including their evidence, under conditions that did not place them at a substantial disadvantage with regard to their opponent, the Council. The Court notes in this respect that the applicants were not represented before Judge Diamond QC or in the proceedings on appeal. While the lack of a lawyer may have inhibited the effective presentation of their arguments, it is to be noted that the trial judge and the judges on appeal ensured that the applicants were not prejudiced on this account. It would appear that due allowance was made for the fact that they were litigants in person. The applicants had ample opportunity to adduce evidence in support of their case and to comment on the submissions of the Council. It cannot be denied on the facts that the approach taken by the domestic courts sought to guarantee the applicants the optimum conditions for an adversarial procedure. The Court does not accept the applicants’ assertion that the Council was able to adduce evidence before the Court of Appeal without giving them an opportunity to comment on it. It notes that the Court of Appeal excluded from the proceedings the late submissions of the Council and placed no reliance on them.

At a more general level the Court also recalls that Article 6 of the Convention does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter of regulation under national law (see the Schenk v. Switzerland judgment of 12 July 1988, Series no. 140, p. 29, § 46). It considers that the way in which the trial court dealt with evidential issues cannot be impugned from the angle of the fairness requirements of that provision.

The Court concludes, with reference to the above considerations, that the applicants’ complaints do not disclose an appearance of a violation of Article 6 § 1. The complaints are therefore inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

4. With reference to the Court’s judgment in the Airey v. Ireland case (Series A no. 32), the applicants further aver that the Court of Appeal’s refusal to grant an adjournment of the hearing amounted to an infringement of their right of access to a court since, without the benefit of legal representation, they were faced with the task of dealing unassisted with a case which Lord Justice Phillips had described in the leave to appeal proceedings as involving “not only difficult questions of analysis of evidence but potentially difficult questions of law.”

The Court observes that, unlike the applicant, Mrs Airey, the applicants did in fact have access to a court to argue their case, both at first instance and on appeal. Moreover that access can in the circumstances be considered to have been effective. At the appeal stage the applicants were able to have a re-hearing on the merits of the submissions which they made before Judge Diamond QC. It would appear also that they were treated sympathetically throughout the appeal hearing and did in fact have access to legal advice in the preparation of their arguments. It may also be noted that, had an adjournment been granted by the Court of Appeal, it would have delayed the outcome of the case, something which the applicants were anxious to avoid.

In so far as the applicants’ complaint concerns the denial of legal aid, the Court recalls that the Convention contains no provision for legal aid in cases involving the determination of civil rights, Article 6 § 3(c) dealing only with criminal proceedings. However, despite the absence of a similar clause for civil litigation, Article 6 § 1 may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable for effective access to a court either because legal representation is rendered compulsory, as is done by the domestic law of certain Contracting States for various types of litigation, or by reason of the complexity of the procedure in the case (see the Airey v. Ireland judgment of 9 October 1979, Series A no. 32, pp. 15-16, § 26 in fine ).

The Court has already found that the applicants were not denied effective access to the Court of Appeal, either by reason of the complexity of the case or the procedure. It also observes that Sir Christopher Staughton in the Court of Appeal specifically found that the case did not raise any difficult questions of law given that Judge Diamond QC had given a correct statement on the legal definition of a secure tenant.

For the above reasons the applicants’ complaint under this head is inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant s’ complaint that the proceedings were not concluded within a reasonable time;

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé J.-P. Costa

Registrar President