THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39552/98

by F.G.

against the United Kingdom

The European Court of Human Rights ( Third Section) sitting on 20 April 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, J udges ,

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 21 October 1997 by F.G.  against the United Kingdom and registered on 28 January 1998 under file no. 39552/98;

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 British national, born in 1942 in Sitapur, India, and living in Brussels. He is represented before the Court by Mr Gregory Paul Turner, a lawyer practising in London.

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

A. Particular circumstances of the case

On 25 August 1989 the applicant issued a writ against a number of business competitors (“the defendants”) claiming, inter alia , that they had libelled him by publishing defamatory remarks of a racist nature about him. Although the applicant initially sued seven defendants, the claims against the fourth to seventh defendants were later dismissed by consent. At a subsequent stage, the third defendant went into liquidation and dropped out of the proceedings.

On 25 June 1990 the defendants applied to have the writ and statement of claim struck out as an abuse of process. On 11 July 1990 Mr Justice Wright in the High Court refused the defendants’ request. With the consent of the parties the Judge ordered that there should be a trial of the preliminary issue as to whether the words complained of were capable of being defamatory.

The applicant’s lawyers made no further contact with the defendants or with the court’s registry regarding a date for the hearing. The only communication from the applicant concerned a notification on 20 September 1990 that he had changed solicitors. For their part the defendants’ lawyers wrote to the applicant’s lawyers on 21 March and 23 September 1991 inviting them either to proceed with the case or to abandon it. No reply was received to these letters.

On 12 October 1992 the defendants’ lawyers applied for the case to be dismissed for want of prosecution. A hearing on the defendants’ application was held on 30 October 1992 before Mr J. Crowley QC sitting as a Deputy Judge of the High Court.

In his judgment delivered the same day, the Deputy High Court Judge found that the applicant’s delay in proceeding with the case was inexcusable. Notwithstanding the applicant’s submission that he had been investing his energies in dealing with other legal proceedings which the defendants had brought against him, the Deputy High Court Judge considered that the applicant had shown no interest whatsoever since July 1990 in bringing his libel action before the court. He found that the defendants could not be faulted for not taking the initiative to have the case set down for trial. In this latter respect, he observed that the defendants had on two occasions invited the applicant to state his position, but to no avail. The Deputy High Court Judge was prepared to accept that the defendants’ had suffered an element of prejudice to their business interests as a result of the continuing threat of legal action hanging over them. He added that for those of the defendants still locked in other litigation with the applicant to have this action hanging over them was both a further source of anxiety and irritation and intolerable. In the Deputy High Court Judge’s opinion the case was an exceptional one and the prejudice factor coupled with the applicant’s lack of interest in pursuing the libel action provided justification for striking out the libel action. He ordered that the applicant’s writ and statement of claim be struck out for want of prosecution and that costs be awarded to the defendants. He gave the applicant leave to appeal against the Order.

In his Notice of Appeal the applicant contended, inter alia , that the Deputy High Court Judge misdirected himself in law in taking into account the prejudice which the non-pursuit of the libel action had on the defendants and that there was no evidence to show that he lacked interest in pursuing the libel action. The defendants invited the Court of Appeal to affirm the finding of the Deputy High Court Judge on the additional ground that that the applicant had been using the delay as an instrument of commercial pressure to prejudice them.

The appeal was heard by Lord Justices Evans and Glidewell in the Court of Appeal on 19 and 20 October 1993. In its judgment of 28 October 1993 the Court of Appeal found that that the case was an exceptional one which would allow it to strike out the action on the ground of prejudice constituted by the anxiety alone which the applicant’s delay in proceeding with the libel action had caused the defendants. Lord Justice Evans found that the applicant had intended to maintain the anxiety of the defendants. Lord Justice Glidewell considered that the applicant’s motive for the delay was not a proper one and thus constituted an abuse of process which, taken together with the anxiety which had been caused to the defendants, amounted to a significant prejudice which justified the court in striking out the libel action for want of prosecution. The applicant contends that both Lord Justices of Appeal rejected the defendant’s argument that the libel action should be struck out on the ground of abuse of process by motive.

The applicant was granted leave to appeal by the House of Lords.

On 5 March 1997 following the presentation of the applicant’s submissions at a hearing on the applicant’s appeal before the House of Lords, counsel for the applicant received last-minute instructions to withdraw the appeal. The applicant’s request was refused. The applicant repeated his request for leave to withdraw the appeal in a formal petition dated 22 April 1997. He stated in the petition that he did not wish to be held in abuse of process of the court when that had never been properly litigated. On 23 April 1997 the applicant was informed by the Principal Clerk of the Judicial Office that the petition could not be presented to the House of Lords since it contained no substantial new grounds for withdrawal other than those advanced at the hearing on 5 March 1997.

On 24 April 1997 the House of Lords unanimously dismissed the applicant’s appeal with costs. In the leading speech, Lord Woolf stated that both the Deputy Judge and the Court of Appeal were entitled to come to the conclusions they reached and that the applicant’s conduct amounted to an abuse of process. He added that once the conclusion was reached that the reason for the delay was one which involved abusing the process of the court in maintaining proceedings where there was no intention of bringing the case to trial, the court was entitled to dismiss the proceedings.

B. Relevant domestic law and practice

The approach which is adopted by courts in the United Kingdom on an application to dismiss an action for want of prosecution was set out by Lord Diplock in the case of Birkett v. James ([1978 ] Appeal Cases p. 219). In that case Lord Diplock stated:

“The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious e.g. disobedience to a peremptory order of the court or conduct amounting to an abuse of process of the court; or (2)(a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party.” (p. 318)

COMPLAINTS

The applicant complains that he was denied a fair hearing in breach of Article 6 § 1 of the Convention. He maintains that in attempting to bring a civil action against a third party the domestic courts treated him as an accused person with the result that at every level of the judicial system he found himself having to answer to a criminal charge of abuse of process by motive. He maintained that his action had been unfairly struck out and the domestic courts at first instance and on appeal had insinuated on the basis of inference alone that he had an ulterior motive in bringing the action in the first place. He was not informed of the charge against him and he had neither the opportunity nor the time and facilities to defend himself. Furthermore, although he had attempted to withdraw his appeal, the House of Lords compelled him to continue the litigation. No reasons were given for that decision and he ended up having to pay the legal costs of the parties he has sued which, in his submission, amounted to a criminal penalty and conviction.

THE LAW

The applicant averred that he had been denied a fair hearing in the determination of a criminal charge against him which had arisen out of his civil action. He relied on Article 6 of the Convention, which provides as relevant:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ...

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed ... of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing ...;

(d) to examine or have examined witnesses and to obtain the attendance and examination of witnesses on his behalf on the same conditions as witnesses against him; ... .”

The applicant submitted that the defendants had at no stage pleaded that he had been guilty of an intentional abuse of process. The domestic courts reached this conclusion themselves although there was no evidence to support it. He was not afforded the opportunity to rebut the accusation since the charge against him only emerged with increasing gravity in the course of each hearing before the different courts. For that reason, he was not afforded the necessary time and facilities to defend himself and was denied the opportunity to call his own witnesses to rebut the charge against him. He pointed to the fact that the defendants had appeared for the first time in the hearing before the House of Lords. However the House of Lords prevented them from presenting their case against him. Moreover, he was obliged against his will to litigate on account of the decision of the House of Lords to refuse to grant him leave to withdraw his appeal, a decision which, he maintained, had not been supported by reasons. He contended that his own decision to abandon the appeal was prompted by the serious violation of his procedural rights which had occurred by that stage.

The Court observes at the outset that the impugned proceedings never involved the determination of a “criminal charge” against the applicant, even having regard to the fact that that concept is to be interpreted as having an autonomous meaning in the context of the Convention and not on the basis of domestic law (see the Adolf v. Austria judgment of 26 March 1982, Series A, no. 49, p. 14, § 30). The Court is not persuaded by the applicant’s argument that he was penalised at the end of the proceedings by having to indemnify the defendants for the costs they incurred. It would observe that this was a natural outcome of his failure to convince the domestic courts at first instance and on appeal that his civil action against the defendants should not be struck out. The fact that costs were awarded against him cannot be construed in any way as a sanction of a criminal nature; less so the House of Lords’ decision to refuse the applicant leave to withdraw his appeal. Furthermore, even if there may be an element of public opprobrium attached to a finding that the applicant has committed an abuse of process, such a finding cannot be said in the circumstances of the instant case to amount to a determination of a criminal charge against him.

For the Court, the proceedings throughout involved the determination of the applicant’s civil right to take defamation proceedings against the defendants. His challenge to the defendant’s application to the court to have his defamation action struck out for want of prosecution was based on his own resolve to continue that action and to justify to the domestic courts his alleged inertia in not pursuing it. The fact that he found himself having to defend allegations in interlocutory proceedings in connection with the non-pursuit of his libel action does not detract from the fact that he remained the plaintiff to the principal libel action and that action formed the background against which the striking out proceedings took place.

On that understanding it remains to be determined whether the facts alleged by the applicant suggest a violation of his right to a fair procedure guaranteed by Article 6 § 1 of the Convention.

The Court notes in this respect that the applicant was at all stages represented by a lawyer and that his case was considered on appeal on two occasions. He was able to contest before the Court of Appeal the findings of fact and inferences drawn by the Deputy High Court Judge and to plead subsequently before the House of Lords that the Appeal Court Judges had wrongly impugned his motives for not proceeding with the trial of the preliminary issue in the libel action. While the applicant has contended that the defendants did not assert before the domestic courts that he was guilty of an abuse of process of court by motive, it was nevertheless open to those courts at each stage of the litigation to make their own findings of fact on the basis of the arguments adduced by both parties and to draw their own conclusions on the characterisation of that conduct from the standpoint of domestic law. It is to be observed in this respect that the task of the courts was to assess whether the applicant’s conduct fell within either or both of the categories described by Lord Diplock in Birkett v. James , as elaborated on in later cases. In making that assessment it must be open to the domestic courts to depart from the strict framework of the parties’ submissions and to reach their own conclusions at the close of the arguments. In any event, it cannot be maintained that abuse of process was never considered a live issue at the appeal stage given that the defendants had put the applicant on notice that they wished to assert that the applicant had deliberately sought to delay the pursuit of the libel action to exert commercial pressure on them. Furthermore, before the House of Lords the applicant’s lawyer was anxious to dispel any inference that his client’s conduct could be construed as an abuse of process and made submissions to that effect.

The Court has also considered the applicant’s complaints from the standpoint of whether the outcome of the striking out proceedings denied him access to a court to sue the defendants in libel. In this connection it recalls that Article 6 § 1 embodies the “right to a court”, of which the right of access, that is, the right to institute proceedings before a court in civil matters, constitutes one aspect. However, this right is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention’s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, among other authorities, the Stubbings and Others v. the United Kingdom judgment of 22 October 1996, Reports of Judgments and Decisions 1996-IV, p. 1502, § 50).

To the extent that proceedings to strike out an action for want of prosecution can be considered a procedural bar to the right of access to a court, the Court would observe that such proceedings serve to protect defendants from the prolonged uncertainty surrounding the threat of legal action with the resulting prejudice which this may entail for them. They also serve to curb the corrosive effect of delay on proceedings by providing a defendant with the means to advance the conduct of the litigation. Of equal importance is the possibility which they allow the courts on the initiative of a defendant to require a plaintiff to justify a failure to pursue an action and to put an end to proceedings where it is found that the judicial process is being exploited by the plaintiff for an improper motive.

In view of the above considerations, the Court concludes that the decision of the domestic courts to strike out the applicant’s libel action for abuse of process was a legitimate and proportionate restriction on his right of access to a court. There were no substantive or procedural obstacles in the way of the applicant’s pursuit of that action. He was guilty of excessive delay in pursuing the action and was properly called on to account for his motives in not carrying the action to court. Further, he had the opportunity to state his case both at first instance and on appeal in the striking out proceedings.

Having regard to these conclusions the Court concludes that the applicant’s allegations do not disclose an appearance of a violation of Article 6 of the Convention and for that reason his complaint is inadmissible as being manifestly ill-founded under Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé J.-P. Costa

Registrar President