THIRD SECTION

PARTIAL 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 18 May 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 27 February 1997 by Patrick ALLFREY against the United Kingdom and registered on 9 December 1997 under file no. 38914/97;

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

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a citizen of the United Kingdom, born in 1940 and living in Naunton Beauchamp , in Worcestershire. The facts of the case, as submitted by the applicant, 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 action by the council in connection with the applicant’s 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. A statement of claim was served in April 1988, and after an exchange of  documents, pleadings were deemed (by the Rules of the Supreme Court) to be closed in December 1989. The council wrote to the applicant in February 1990, asking for his list of documents and summons for directions. After correspondence on the question of discovery, the council issued a summons for dismissal for want of prosecution. That summons was to be heard, with a summons by the applicant for discovery, on 5 August 1991, but both were adjourned for lack of time.

In June 1992, the applicant’s solicitors informed the council that they wished to re-instate their summons for discovery, referring obliquely to the summons to dismiss for want of prosecution. In October 1992, the council indicated that it had been advised that its summons should be restored.

On 6 January 1993, both summonses came before the District Judge. He dismissed the applicant’s action for want of prosecution. On 14 June 1993, a Deputy Judge of the Queen’s Bench Division allowed the applicant’s appeal. He considered that if the summons to dismiss had been heard at the time it was issued, the action would have been dismissed. However, as the council had undertaken certain steps in the course of 1991 and 1992 which led the applicant to believe that the summons to dismiss was not being proceeded with, the Deputy Judge considered that he had no discretion to strike the action out for want of prosecution. The Deputy Judge concluded by remarking that he derived “no satisfaction in permitting this stale and poorly prosecuted action to continue, particularly as the [council has] acted with a proper regard to the duty [it] had to the rate payers ...”.

The council appealed to the Court of Appeal, which heard the appeal on 14 February 1995. In his judgment, the Master of the Rolls first noted that leave to appeal to the Court of Appeal had initially been refused by the Deputy Judge on 30 June 1993 and by a judge of the Court of Appeal on 6 October 1993, before being granted by the court on 7 December 1993. He referred to the lapse of time as “regrettable”. The Master of the Rolls considered that whilst the Deputy Judge had correctly interpreted the law as it stood at the time of his judgment, in the meantime, the House of Lords had held that a judge retained a discretion to dismiss for want of prosecution even where the plaintiff had reasonably relied on statements of the defendant that the summons to dismiss was not being proceeded with. He further took the Deputy Judge’s comments as a clear indication that if he had known that he had a discretion to dismiss, he would have exercised it. The order of the District Judge was reinstated. The other two Lords Justices agreed.

In March 1995, the applicant applied for leave to appeal to the House of Lords. Leave was refused on 31 January 1996.

COMPLAINTS

The applicant complains that his property was taken with no intention to obtain authorisation or to pay compensation. He 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 violation of Article 6 of the Convention and of Article 1 of Protocol No. 1.

THE LAW

1. The applicant alleges a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 which, so far as relevant, provide as follows.

Article 6 § 1 of the Convention

“1. 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 ... .”

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law ... .”

The Court notes that the complaints made by the applicant relate to two sets of proceedings: the proceedings which ended with the  compromise of the action concerning the barge, on 18 November 1981, and the second set of proceedings which began with the issue of the applicant’s writ on 29 January 1988.

As regards the first set of proceedings, the Court recalls that, pursuant to Article 35 § 1 of the Convention, it may only deal with an application within a period of six months from the date on which the final decision was taken. In this connection, the final decision was the decision of 18 November 1981 by which the action was compromised. However, the application was introduced only on 27 February 1996, that is, more than six months after the final decision.

It follows that this part of the application has been introduced out of time and must be rejected, pursuant to Article 35 § 4 of the Convention.

2. The applicant also complains about the second set of proceedings, that is, the proceedings which began with the issue of the applicant’s writ on 29 January 1988 and ended with the refusal of the House of Lords to grant leave to appeal against the Court of Appeal’s decision of 14 February 1995, some eight years later. He refers, again, to Article 6 of the Convention and to Article 1 of Protocol No. 1.

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

For these reasons, the Court

DECIDES TO ADJOURN the examination of the proceedings which began with the              applicant’s writ of 29 January 1988;

Unanimously,

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé                                                                                           J-P. Costa

Registrar          President