PARTLY DISSENTING OPINION OF JUDGE JAMBREK

1.  According to the Court's case-law, the manner of application of Article 6 para . 1 (art. 6-1) of the Convention to proceedings before appellate courts depends on the special features of the proceedings involved; account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein.

I agree with the majority that the order by the Court of Appeal requiring the applicant to pay £124,900 as security for Lord Aldington's costs in the appeal as a condition for the applicant's appeal to be heard by that court, pursued a legitimate aim for the purposes of Article 6 para . 1 (art. 6-1) of the Convention, namely to protect Lord Aldington from being faced with an irrecoverable bill for legal costs if the applicant were unsuccessful in the appeal (see paragraph 61 of the judgment).

However, I am not convinced that the legitimacy of the above aim in itself justified the restrictions imposed on the applicant's access to the Court of Appeal.  In my view the security for costs order impaired the very essence of the applicant's right of access to court as guaranteed by Article 6 para . 1 (art. 6-1) and was disproportionate to the aim pursued (see paragraphs 61 to 67 of the judgment). Therefore, unlike the majority, I find that there has been a violation of this provision (art. 6-1).

2.  As to the aims pursued, I agree with the applicant that, where a security for costs order results in a party being denied access to an appellate court because of poverty, it should only be made where the appeal can be shown to be frivolous, vexatious or otherwise unreasonable, or to be an abuse of the process of the court.  The applicant's appeal could not be said to fall within that category.

3.  In the first place it is to be noted that, whilst the Court of Appeal found that the appeal had no merit, the Registrar of that court had previously concluded that five of the seven grounds of the appeal had "just enough strength ... that security for costs should not be awarded" (see paragraphs 16 and 17 of the judgment).  This difference of opinion clearly provides reason for doubting that the security for costs order, the effect of which was to bar the applicant's access to the Court of Appeal, was proportionate.

4.  Moreover, I find it difficult to follow the Court of Appeal's reasoning that, in view of the applicant's rejection of Lord Aldington's offer to settle for £300,000, his appeal on quantum was "academic" (see paragraphs 15 and 17 of the judgment).  The subject-matter of the applicant's appeal on damages was evidently the award of £1.5 million and not the sum of £300,000.  Indeed, as also noted by the Court of Appeal, the offer "was not a concession by the plaintiff's solicitors that the award was too high ..."  So, the fact that the applicant declined to accept the offer cannot be taken to mean that he was disinterested in the issue of damages.  On the contrary, it suggests that he was aware of the fact that under English libel law the questions of liability and damages are interlinked.  As stated by Lord Hailsham in Broome v. Cassell & Co. Ltd, the purpose of damages in the law of libel is that someone "must be able to point to a sum ... sufficient to convince a bystander of the baselessness of the charge" (see paragraph 23 of the judgment).

5.  Furthermore, in examining this issue, regard must be had to the grounds on which we found a violation of Article 10 (art. 10), namely the size of the award taken in conjunction with the lack of adequate and effective safeguards at the relevant time against a disproportionately large award (see paragraphs 49 to 51 of the judgment).  In this connection, I attach importance not only to the limited scope of judicial control of jury awards but also to the absence of reasoning for such awards and the resultant difficulty in challenging their reasonableness.  These factors, in my view, militate strongly in favour of the conclusion that the restrictions placed on the applicant's access to the Court of Appeal were disproportionate for the purposes of Article 6 (art. 6).

6.  In addition, the Court of Appeal failed to take into account that in appealing from the High Court's judgment the applicant was seeking to defend his fundamental right to freedom of expression, a right which is protected by Article 10 (art. 10) of the Convention and which constitutes one of the essential foundations of a democratic society (see, for instance, the Sunday Times v. the United Kingdom judgment (no. 2) of 26 November 1991, Series A no. 217, pp. 28-29, para . 50). It is essential that Article 6 para . 1 (art. 6-1) be construed in such a way as to guarantee a real and effective access to court for a person who wishes to challenge an interference with the exercise of his or her right to freedom of expression.

7. In any event, I do not consider that the Court of Appeal's refusal to grant the applicant an extension of the fourteen days' time-limit for providing the amount of security was justified (see paragraph 18 of the judgment).  The applicant's interests in pursuing his appeal clearly outweighed those referred to by the Court of Appeal in support of the refusal, namely to avoid considerable time-constraints in relation to the timescale for the hearing of the appeal.  Also, I respectfully disagree with the majority that "there is nothing to suggest ... that the applicant would have been able to raise the money had he been given more time" (see paragraph 64 of the judgment).  It was implicit in his request for an extension that he was willing to furnish the security or at least make efforts to do so, but the Court of Appeal gave the applicant no realistic opportunity to show that he would be able to raise the required sum if given more time.

8.  For these reasons, I reach a different conclusion from that of the majority.  Notwithstanding the fact that the case had been extensively heard in the High Court, the conditions set for the applicant to pursue his appeal to the Court of Appeal exceeded the respondent's State's margin of appreciation; they impaired the very essence of the applicant's right of access to court and were disproportionate for the purposes of Article 6 para . 1 (art. 6-1). Consequently, I find that there has been a violation of Article 6 para . 1 (art. 6-1).  

[1] The case is numbered 8/1994/455/536. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission

[2] Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) and thereafter only to cases concerning States not bound by that Protocol (P9).  They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 316-B of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.