BLATCHFORD v. THE UNITED KINGDOM

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 14447/06
by John BLATCHFORD and Jane BLATCHFORD
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 22 June 2010 as a Chamber composed of:

Lech Garlicki, President,
Nicolas Bratza,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Päivi Hirvelä,
Ledi Bianku, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 3 April 2006,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Mr John Blatchford and Mrs Jane Blatchford, are British nationals who were born in 1944 and 1948 respectively and live in Margate. They were represented before the Court by Marsden Duncan, a firm of solicitors practising in Ramsgate. The United Kingdom Government (“the Government”) were represented by their Agent, Ms H. Upton, of the Foreign and Commonwealth Office.

A. The circumstances of the case

2 The applicants traded as builders and roofing contractors under the trade name of Anchor and Arrow. The business premises were located at Northdown Road, Margate, Kent. They were subject to a mortgage and loans held by Barclays Bank Plc (“Barclays”).

3. The applicants lived, and still live, at Omer Avenue, Margate, Kent. That property was also subject to a mortgage in favour of Barclays.

4. On 22 October 1992, the applicants appeared at Canterbury County Court pursuant to a creditor's petition lodged under section 264(1)(a) of the Insolvency Act 1986 (“the 1986 Act” – see paragraphs 57-69 below). They sought more time to try and settle their debts as their son had agreed to purchase the property at Omer Avenue from them for a sum which would have allowed them to satisfy their creditors. The applicants did not have legal representation at the hearing because they could not afford to pay for a solicitor. The court refused their request for more time and made a bankruptcy order against them.

5. The effect of the order was that the official receiver took charge, on an interim basis, of the applicants' estate, pursuant to section 287(1) of the 1986 Act (see paragraph 64 below). The applicants subsequently had discussions with the official receiver's office and provided details of their financial situation.

6. In July 1993, United Friendly Insurance Company, the second applicant's life insurance company, paid to the second applicant the sum of GBP 2,893.41, the cash surrender value of a life insurance policy in her name.

7. Around the same time, the applicants' local authority, Thanet Council, obtained a warrant for the arrest of the first applicant for non-payment of business rates and poll tax.

8. K.C. was subsequently appointed trustee in bankruptcy. Under section 306(1) of the 1986 Act, the applicants' estate vested in him and he was entitled to manage and dispose of the property comprised in the estate as he saw fit.

9. On 2 August 1993, the applicants received a letter from K.C. advising them that he had been appointed trustee in bankruptcy. On 3 August 1993, unknown to the applicants, K.C. registered a caution over the property at Omer Avenue under section 313 of the 1986 Act (see paragraph 65 below).

10. On 19 August 1993, K.C. contacted the applicants asking them to surrender to him the sums which they had received from the United Friendly Insurance Company. The applicants replied that they were concerned about the outstanding warrant for arrest in respect of the first applicant. They asked K.C. to resolve the situation with Thanet Council and advised him that once the warrant had been set aside, they would send him the money received from the insurance company.

11. K.C. did not assist with the warrant. The applicants wrote to him advising him that they would use the insurance money to remove the threat of the arrest and imprisonment of the first applicant. They subsequently paid GBP 1,400 of the money obtained from the insurance company to Thanet Council to discharge the outstanding debt. They used the remainder of the money on general living expenses. However, further business rates had accumulated in the meantime and the applicants were concerned that Thanet Council could recommence action for non-payment at any time.

12. On 16 December 1993, the applicants' solicitor advised them that Thanet Council had agreed to a court order to stay the arrest warrant. On an unknown date, the applicants became aware that K.C. had commenced a claim against the second applicant for repayment of GBP 2,893.41 (the sum paid to the second applicant by the United Friendly Insurance Company) plus interest and asking for further information about the payment made to Thanet Council. On 17 December 1993, the second applicant was informed that she had been denied legal aid to contest the proceedings because any sums awarded would become the property of her creditors.

13. On 8 March 1994, Barclays advised the applicants that it would be content to discuss restructuring their debt provided that there was agreement that the property at Northdown Road be sold.

14. On 2 February 1994, the County Court ordered the second applicant to pay to K.C., as trustee in bankruptcy, the sum of GBP 2,893.41 plus costs, a total of GBP 3,216.97.

15. The official receiver subsequently applied for an order postponing the discharge of the second applicant from bankruptcy until such time as she had paid the sum of GBP 1,735 (composed of the sum of GBP 1,600 being the balance of monies received from the insurance policy payment once the business rates had been paid plus the sum of GBP 135, a debt to the applicants' business which had been paid directly to the second applicant) or until two years had elapsed, whichever was earlier.

16. On 16 May 1994, Barclays offered to restructure the applicants' debt owed to it by way of a remortgage. It was agreed that the property at Northdown Road would be sold and the applicants undertook to sign all documentation necessary to effect the sale.

17. On 9 August 1994, K.C. advised the applicants that he was considering applying to the court to extend their bankruptcy because of lack of co-operation. He provided no details of their alleged failure to cooperate.

18. On an unspecified date in 1994, the property at Northdown Road was sold for GBP 13,500. The sale was arranged by Barclays and the applicants signed the documentation as agreed. The applicants considered that the sale proceeds were about GBP 20,000 less than the value of the property. K.C. was aware of Barclays' intention to sell the property for this sum. The second applicant subsequently sought to have K.C. removed as trustee in bankruptcy on the ground that he was incompetent. She was denied legal aid because any sums awarded would become the property of her creditors.

19. On 16 July 1995, Barclays restructured the applicants' debt, setting aside some of the interest owed and allowing the remainder of the debt to be repaid over a period of fourteen years. This was done with the knowledge of K.C.

20. On 22 October 1995, the first applicant was discharged from bankruptcy.

21. On 5 February 1996, K.C. issued a notice to creditors of a meeting of creditors to be held on 12 March 1996. The notice advised that K.C. considered that he had realised as much of the estate as was practically possible and that he was applying to be released as trustee. He commented in the notice that there was no equity in the property owned by the applicants.

22. On 12 March 1996, a creditors' meeting was held, at which K.C. was released from his duties as trustee.

23. On 22 October 1997, the second applicant was discharged from bankruptcy.

24. The applicants subsequently applied for a certificate of their discharge from bankruptcy, which was provided to both applicants in February 1998.

25. In January 2003, the applicants wished to purchase a new house. In the course of negotiations, it was discovered that there was a caution recorded on the Land Register in favour of K.C. in respect of the property at Omer Avenue. The applicants applied to have the caution removed. The Land Registry wrote to the official receiver asking whether there was any objection to the removal of the caution from the Register.

26. On 21 March 2003, the Assistant Land Registrar wrote to the applicants advising that, no reply having been received from the official receiver, the caution in favour of K.C. would be cancelled that day.

27. On 3 April 2003, a caution was registered in the Land Register against the property at Omer Avenue by the official receiver's office.

28. In October 2004, the applicants sought to have the caution removed but the official receiver objected.

29. On 5 January 2005, D.C. was appointed by the official receiver as trustee in bankruptcy for the applicants.

30. On 28 January 2005, D.C. sent a notice of a creditors' meeting. He noted that at the time that K.C. obtained his release as trustee, there was no equity in the matrimonial home. D.C. intended therefore to investigate and realise the beneficial interest in the matrimonial home.

31. On 18 March 2005, a creditors' meeting was held at which the trustee's disbursements and remuneration were agreed and it was agreed to administer the bankruptcy on a joint basis.

32. On 20 December 2005, an application was made to register a caution against the property at Omer Avenue in favour of D.C.

33. On 7 March 2006, D.C.'s solicitors wrote to the applicants enclosing two schedules showing the sums required to discharge all bankruptcy costs and liabilities. One schedule showed the sum owed where only liabilities in respect of creditors who had made a claim against the estate were included and amounted to GBP 157,064.54; the other showed the sum owed where all known creditors, whether or not they had made a claim, were included and amounted to GBP 262,205.70. Both schedules calculated the amount actually claimed by creditors to be GBP 60,137.16. The amount not yet claimed, and included in the second schedule, was GBP 45,608.13. The remainder of the sums in the two schedules was composed of costs and expenses of the official receiver and the trustee in bankruptcy, fees payable to the Department of Trade and Industry (“DTI”) and statutory interest at the rate of 8 per cent from 22 October 1992 to 21 March 2006. In the first schedule, the statutory interest amounted to GBP 64,981.08; in the second schedule, it amounted to GBP 114,262.86. The solicitors advised that if the applicants were unable to procure such sums within three calendar months, they might wish to consider a voluntary sale of the property at Omer Avenue.

34. On 10 March 2006, the applicants replied to the solicitors, asking for clarification of the two different sums. They also provided further information requested.

35. On 14 March 2006, the solicitors replied explaining the two different sums and acknowledging receipt of the further information.

36. On 20 March 2006, D.C. sent a letter to the applicants to fix an appointment to value the property at Omer Avenue.

37. On 21 March 2006 D.C.'s solicitors wrote again enclosing two further schedules, one for the first applicant and one for the second applicant, setting out details of their creditors, as previously disclosed by the applicants.

38. On 22 March 2006, the applicants were advised by their solicitors that they would not get legal aid in order to contest D.C.'s caution registered against the property at Omer Avenue.

39. On 29 March 2006, the applicants wrote to D.C.'s solicitors asking for a final settlement figure. They indicated their intention to raise funds by obtaining a mortgage over the property at Omer Avenue and advised D.C. of the possibility of obtaining further sums from a member of their family. They disputed some of the figures provided in the schedules and asked for an extension of the three-month period (see paragraph 33 above) which they considered too short in light of the longevity of the bankruptcy.

40. On 4 April 2006 the solicitors replied, noting that pursuant to a change in the law the trustee in bankruptcy was required to take steps to deal with the property at Omer Avenue by April 2007. They extended the deadline for response from the applicants to 18 April 2006. As to the sums required to settle the applicants' debts, the solicitors confirmed that the final figures were those appearing in the schedules provided by letter of 7 March 2006.

41. On 12 April 2006, the applicants wrote to D.C.'s solicitors indicating that they had engaged the services of a mortgage broker and would be in touch as soon as they had made arrangements.

42. On 10 May 2006 the solicitors wrote noting that they had heard nothing since the letter of 12 April 2006 and asking for confirmation of the terms proposed by 24 May 2006.

43. On 13 May 2006 the applicants replied to the solicitors indicating that they were still seeking a mortgage and asking for further clarifications.

44. On 17 May 2006, the solicitors wrote again, responding to the applicants' queries and seeking a response by 29 May 2006. They indicated that they reserved their position as to whether to commence possession and sale proceedings in the event that no satisfactory response was received.

45. On 27 May 2006, the applicants wrote to D.C.'s solicitors asking how much money would be required to settle the bankruptcy proceedings.

46. On 15 June 2006, D.C.'s solicitors wrote advising that D.C. would be unable to agree a settlement with the applicants without the approval of the creditors. However, the applicants were invited to provide details of any settlement they wished to propose and any offer made would be put to creditors.

47. On 5 July 2006, D.C.'s solicitors wrote inviting the applicants to make an offer by 19 July 2006. This deadline was extended to 1 August 2006 at the applicants' request. On 20 July 2006, the deadline was extended, unprompted, by D.C.'s solicitors to 23 August 2006. In the event that no offer was made by that date, the solicitors advised that they were instructed to issue proceedings for possession and sale of the property at Omer Avenue without further notice.

48. On 18 August 2006, the applicants replied denying that D.C. had any right or interest in the property at Omer Avenue. However, they offered GBP 15,000 to settle matters.

49. By letter of 22 August 2006, D.C.'s solicitors replied noting the offer made and asking for the applicants' best offer by 29 August 2006.

The applicants replied on 29 August 2006 asking for clarification of what would be an acceptable amount to settle the bankruptcy proceedings.

50. D.C.'s solicitors replied on 31 August 2006 indicating that they were not in a position to suggest an appropriate amount and giving the applicants until 7 September 2006 to make their best offer.

51. On 27 September 2006, D.C.'s solicitors wrote to the applicants noting that the applicants' final offer of GBP 20,000 would be insufficient to meet the costs, fees and expenses of the bankruptcy and that there was little incentive for creditors to accept the offer. The solicitors enclosed a schedule showing, by way of example, the estimated sum required in order to ensure creditors a dividend of GBP 0.20 per GBP 1.00. The sum came to GBP 35,614.62. The applicants were given until 6 October 2006 to consider the level of their offer.

52. On 6 October 2006, the applicants faxed a letter to D.C.'s solicitors offering GBP 35,614.62 in final settlement. They indicated that they would require some time to gather the funds together.

53. On 9 October 2006, D.C.'s solicitors wrote reminding the applicants that the sum of GBP 35,614.62 was specified merely as an example and that it would have to be referred to creditors for consideration. On 11 October 2006, the applicants confirmed that they wished their offer of GBP 35,614.62 to be put to creditors. On 13 October 2006, D.C.'s solicitors noted the applicants' offer and agreed to put it to the creditors.

54. On 31 October 2006, D.C. referred in a letter to the relevance of the length of time which had elapsed since the bankruptcy orders were first made, to the fact that there was little or no equity in the property at the time of the making of the orders and for some time subsequently and to his efforts to approach the matter on a “conciliatory basis”.

55. On 5 December 2006, D.C.'s solicitors wrote to the applicants confirming that their offer of GBP 35,614.62 had been accepted by the creditors. Settlement was to take place by 17 January 2007 at the latest.

56. On 12 January 2007, the applicants' solicitors provided them with forms of assignment transferring the trustee's interest in the property at Omer Avenue from D.C. to the applicants. The applicants also arranged to remortgage the property to obtain funds. On 26 January 2007, the applicants were advised that the transaction had been completed.

B. Relevant domestic law

1. Law in 1992

a. Procedure and powers of the trustee

57. The Insolvency Act 1986 sets out the procedure to be followed in bankruptcy and the powers of the trustee.

58. Section 305(2) of the Act provides that the function of the trustee is to:

“... get in, realise and distribute the bankrupt's estate in accordance with the following provisions of this Chapter; and in the carrying out of that function and in the management of the bankrupt's estate the trustee is entitled, subject to those provisions, to use his own discretion.”

59. Section 283 provides that the bankrupt's estate comprises all property belonging to or vested in the bankrupt at the commencement of the bankruptcy, excluding items necessary to the bankrupt for use personally by him in his employment, business or vocation or for satisfying the basic domestic needs of the bankrupt and his family.

60. The duration of the bankruptcy is defined in section 278 as beginning on the day the bankruptcy order is made and continuing until the individual is discharged.

61. Discharge is dealt with in section 279, which, at the relevant time, provided that:

“(1) Subject as follows, a bankrupt is discharged from bankruptcy—

...

(b) ... by the expiration of the relevant period under this section.

(2) That period is as follows—

...

(b) ... the period of 3 years beginning with the commencement of the bankruptcy.”

62. However, under section 279(3), where the court is satisfied on the application of the official receiver that an undischarged bankrupt has failed or is failing to comply with any of his obligations, the court may order that the relevant period under section 279(2)(b) shall cease to run for such period, or until the fulfilment of such conditions, as may be specified in the order.

63. Section 281 sets out the effect of a discharge and provides as follows:

“(l) Subject as follows, where a bankrupt is discharged, the discharge releases him from all the bankruptcy debts, but has no effect—

(a) on the functions (so far as they remain to be carried out) of the trustee of his estate, or

(b) on the operation, for the purposes of the carrying out of those functions, of the provisions of this Part;

and, in particular, discharge does not affect the right of any creditor of the bankrupt to prove in the bankruptcy for any debt from which the bankrupt is released.

(2) Discharge does not affect the right of any secured creditor of the bankrupt to enforce his security for the payment of a debt from which the bankrupt is released.”

64. Under sections 287 and 300, at any time when there is no trustee in bankruptcy appointed, the official receiver is the receiver and manager of the bankrupt's estate.

65. Section 313 makes special provision for the bankrupt's home. It provided, at the relevant time, as follows:

“(l) Where any property consisting of an interest in a bankrupt's dwelling house which is occupied by the bankrupt or by his spouse or former spouse is comprised in the bankrupt's estate and the trustee is, for any reason, unable for the time being to realise that property, the trustee may apply to the court for an order imposing a charge on the property for the benefit of the bankrupt's estate.

(2) If on an application under this section the court imposes a charge on any property, the benefit of that charge shall be comprised in the bankrupt's estate and is enforceable, up to the value from time to time of the property secured, for the payment of any amount which is payable otherwise than to the bankrupt out of the estate and of interest on that amount at the prescribed rate.

(3) An order under this section made in respect of property vested in the trustee shall provide, in accordance with the rules, for the property to cease to be comprised in the bankrupt's estate and, subject to the charge (and any prior charge), to vest in the bankrupt.”

66. Section 338 of the 1986 Act provides that:

“Where any premises comprised in a bankrupt's estate are occupied by him ... on condition that he makes payments towards satisfying any liability arising under a mortgage of the premises or otherwise towards the outgoings of the premises, the bankrupt does not, by virtue of those payments, acquire any interest in the premises.”

b. Remedies and protections

67. Section 285 provides that:

“(1) At any time when proceedings on a bankruptcy petition are pending or an individual has been adjudged bankrupt the court may stay any action, execution or other legal process against the property or person of the debtor or, as the case may be, of the bankrupt.

(2) Any court in which proceedings are pending against any individual may, on proof that a bankruptcy petition has been presented in respect of that individual or that he is an undischarged bankrupt, either stay the proceedings or allow them to continue on such terms as it thinks fit.

(3) After the making of a bankruptcy order no person who is a creditor of the bankrupt in respect of a debt provable in the bankruptcy shall—

(a) have any remedy against the property or person of the bankrupt in respect of that debt, or

(b) before the discharge of the bankrupt, commence any action or other legal proceedings against the bankrupt except with the leave of the court and on such terms as the court may impose.”

68. Under section 375(1), the County Court has the power, exercisable at any time, to review the order for bankruptcy, to vary it or to revoke it.

69. Section 303 provides that if a bankrupt or any of his creditors or any other person is dissatisfied by any act, omission or decision of a trustee of the bankrupt's estate, he may apply to the court; and on such an application the court may confirm, reverse or modify any act or decision of the trustee, may give him directions or may make such other order as it thinks fit.

2. Changes in the law subsequent to the bankruptcy

70. The Enterprise Act 2002 introduced changes to the 1986 Act. It entered into force on 1 April 2004.

71. Section 279 of the 1986 Act was amended to reduce the period of bankruptcy prior to discharge from three years to one year.

72. Section 313 was also amended to limit the value of a charge on a bankrupt's property to “the charged value”, which was defined as “the amount specified in the charging order as the value of the bankrupt's interest in the property at the date of the order plus interest on that amount from the date of the charging order at the prescribed rate”.

73. Finally, a new section 283A was introduced into the 1986 Act and provides as follows:

“(1) This section applies where property comprised in the bankrupt's estate consists of an interest in a dwelling-house which at the date of the bankruptcy was the sole or principal residence of—

(a) the bankrupt,

(b) the bankrupt's spouse ...

(2) At the end of the period of three years beginning with the date of the bankruptcy the interest mentioned in subsection (1) shall—

(a) cease to be comprised in the bankrupt's estate, and

(b) vest in the bankrupt (without conveyance, assignment or transfer).

(3) Subsection (2) shall not apply if during the period mentioned in that subsection—

(a) the trustee realises the interest mentioned in subsection (1),

(b) the trustee applies for an order for sale in respect of the dwelling-house,

(c) the trustee applies for an order for possession of the dwelling-house,

(d) the trustee applies for an order under section 313 in Chapter IV in respect of that interest, or

(e) the trustee and the bankrupt agree that the bankrupt shall incur a specified liability to his estate (with or without the addition of interest from the date of the agreement) in consideration of which the interest mentioned in subsection (1) shall cease to form part of the estate.

(4) Where an application of a kind described in subsection (3)(b) to (d) is made during the period mentioned in subsection (2) and is dismissed, unless the court orders otherwise the interest to which the application relates shall on the dismissal of the application—

(a) cease to be comprised in the bankrupt's estate, and

(b) vest in the bankrupt (without conveyance, assignment or transfer).

...

(6) The court may substitute for the period of three years mentioned in subsection (2) a longer period—

(a) in prescribed circumstances, and

(b) in such other circumstances as the court thinks appropriate.”

74. Under transitional provisions, the three year period in respect of
pre-commencement bankruptcies commenced on 1 April 2004 and therefore terminated on 31 March 2007.

COMPLAINTS

75. The applicants complained under Article 8 and Article 1 of Protocol No. 1 to the Convention about the bad management of their affairs and the excessive delays in dealing with their estate following the making of the bankruptcy order.

76. They also complained under Article 6 § 1 of the Convention about their inability to obtain legal aid to defend their interests.

77. They complained under Article 2 of Protocol No. 4 to the Convention that their right to liberty of movement and freedom to choose their own residence was unlawfully infringed by the restrictions on their ability to dispose of their property at Omer Avenue.

78. They further complained under Article 4 of Protocol No. 7 that, given their discharge from bankruptcy in 1998, the increase in the sums required to settle their affairs between 1996 and 2006 amounted to being punished twice.

79. Finally, the first applicant complained under Article 1 of Protocol No. 4 about the arrest warrant issued for his non-payment of business rates and poll tax.

THE LAW

A. Alleged violation of Article 6 § 1 of the Convention

80. The applicants complained that they were unable to obtain legal aid to defend their interests in the context of the proceedings brought by K.C. in 1993 to recover the insurance monies from the second applicant; in respect of the second applicant's attempt to have K.C. removed as trustee on grounds of incompetence; and in order to challenge the actions of D.C. in 2006. They relied on Article 6 § 1 of the Convention, which provides as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

81. The Government contended that the applicants' complaint regarding refusal of legal aid to the second applicant in 1993 was inadmissible for three reasons. They argued, first, that it had been brought outside the
six-month time limit permitted by Article 35 § 1. Second, they considered that the applicants had failed to exhaust domestic remedies available to them, in that they could have appealed the decision to refuse legal aid to the Legal Aid Board followed by judicial review of the refusal if they remained unsatisfied. Third, the complaint was, in their view, manifestly ill-founded. Referring to Steel and Morris v. the United Kingdom, no. 68416/01, ECHR 2005‑II, the Government noted, first, that the applicants were legally represented in the proceedings for recovery of the insurance monies; second, that those proceedings were not complex; and third, that the claim involved a relatively small sum of money.

82. The Government did not make any submissions as to the applicants' complaints regarding lack of access to legal aid on two other occasions.

83. The applicants reiterated that they were refused legal aid as they would obtain no benefit even if their claim was successful. Accordingly, they argued, they were unable to commence any court proceedings. Further, the legal aid documentation was in the Government's control as they were responsible for administering legal aid.

84. Article 35 § 1 of the Convention stipulates:

“1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

85. The Court notes that the applicants made three specific complaints regarding the refusal of, or lack of access to, legal aid. The first two complaints date back to 1993 and to an unspecified date which appears to have been in 1994; in any event, it is clear that the second refusal took place before the release of K.C. as trustee in bankruptcy in 1996.

86. The third complaint concerns the actions of D.C. in 2006. In respect of this complaint, the applicants have failed to produce any documents confirming that legal aid was refused or showing legal advice that any application would be refused. Nor have they pointed to any provision of law or any policy documents demonstrating that legal aid would be refused to individuals in their position. Finally, the applicants do not suggest that they sought to appeal any decision to refuse them legal aid. In this context, the Court recalls that by 2006, the applicants' bankruptcies had been discharged and that the reason for refusal of legal aid in 1993 was therefore no longer valid.

87. In the circumstances the Court concludes that the first two complaints fall outside the six-month period allowed for the lodging of applications with this Court and that, in respect of the third complaint, the applicants have failed to exhaust the domestic remedies available to them. The complaint under Article 6 § 1 is therefore inadmissible and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

B. Alleged violation of Article 8 of the Convention and Article 1 of Protocol No. 1

88. The applicants complained of mismanagement of their affairs and excessive delays in dealing with their estate, and in particular their home, following the making of the bankruptcy order. They relied on Article 8 and Article 1 of Protocol No. 1 to the Convention, which read as follows:

Article 8

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

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 and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

89. The Government contested the applicants' claim.

1. The parties' submissions

a. The Government

90. The Government argued that the complaints under Article 8 and Article 1 of Protocol No. 1 should be declared inadmissible for failure to exhaust domestic remedies, emphasising the subsidiary nature of the Court's role and the importance of encouraging applicants to seek redress through options available to them at national level (citing Burden and Burden v. the United Kingdom, no. 13378/05, § 35, 12 December 2006, subsequently referred to the Grand Chamber).

91. The Government noted that throughout the period covering the applicants' dealings with D.C., the applicants were represented by a solicitor. The Government proposed four possible remedies which they argued were available to the applicants to prevent the interference with their home and possessions.

92. First, the Government contended that, pursuant to section 303(1) of the 1986 Act and 7(1)(a) of the Human Rights Act 1998, the applicants could have commenced court proceedings after 2 October 2000 (the date on which the Human Rights Act entered into force) to prevent the trustee from seeking to recover any of the value of their home, on the ground that to do so would infringe their Convention rights (see paragraph 69 above). The court had the power to make an order or directions preventing the trustee from proceeding.

93. Second, the Government argued that it was open to the applicants to refuse to cooperate with D.C. in respect of the proposed settlement. This would have required D.C. to apply to the court for an order to enforce sale or possession, or for a charge over the property at Omer Avenue. The applicants would then have been in a position to raise their Convention complaints in opposing the order sought.

94. Third, at any time after 2 October 2000, the applicants could have applied to the court pursuant to section 375(1) of the 1986 Act to have the bankruptcy order reviewed (see paragraph 68 above). In the context of such proceedings, they could have argued that given the lapse of time since the start of the bankruptcy, the Convention required that the value of their home should not be used to make further payment of the bankruptcy debts.

95. Finally, the applicants could have applied pursuant to the overriding power of the court under section 303 to control the actions of the trustee, on the basis that action to recover from them any of the value of their home would breach their Convention rights having regard to the time which had elapsed since the bankruptcy order in their case (see paragraph 69 above). It would have been open to the court to prevent further action against them to recover any of the value of their home. Indeed, under section 6(1) of the Human Rights Act, the courts would have been under a duty to do so if the applicants' arguments were well-founded.

96. The Government pointed out that the applicants' bankruptcies had been discharged after three and five years and that at that point they became free of any restrictions upon their actions and their dealings with their property, save for the property which formed part of their estate and remained liable to be used to pay off the bankruptcy debts. Accordingly, they considered that there was an important distinction between the applicants' case and the case of Luordo v. Italy, no. 32190/96, ECHR 2003‑IX where the applicant was discharged from bankruptcy almost fifteen years after being declared bankrupt and was subject to many restrictions during that period. Although the Government accepted that there had been an interference with the applicants' possessions to the extent that the bankruptcy order entailed a control of use of the possessions in order to ensure the maximum benefit for the applicants' creditors, they considered that the interference with their home occurred when the applicants were declared bankrupt, at which point the property vested in the trustee and became part of the assets which the trustee was to realise for the benefit of the creditors. Unlike Luordo, cited above, there was no further or continuing interference with the applicants' possessions after the initial bankruptcy order.

97. The Government emphasised that it was open to the applicants at any time following K.C.'s release as trustee to cooperate with the official receiver in order to achieve a settlement with their creditors. They failed to do so. The Government pointed out that a settlement was eventually reached which did not require the applicants to sell their home, arguing that D.C., when seeking to negotiate a settlement with the applicants, was heavily influenced by the length of time which had elapsed since they were originally declared bankrupt. They referred in this regard to his letter of 31 October 2006 (see paragraph 54 above) which commented on the passage of time and his endeavours to approach the matter on a conciliatory basis. They pointed out that the final settlement sum was only GBP 35,614.62 at a time when the equity in the property was GBP 189,995 and emphasised that it would have been within the trustee's rights to pursue the full value of the property. Accordingly, the applicants had benefited to a considerable extent from the trustee's appreciation of the time which had passed since the applicants were declared bankrupt.

98. As to the amendments to the regime introduced by the Enterprise Act 2002, which took effect from 1 April 2004, the Government explained that the intention of the reform was to provide greater certainty to the bankrupt, the trustee and the creditors as to the time scale within which the bankrupt's home would be dealt with; to provide a balance between the bankrupt and his creditors by providing for ample time for the disposal of the trustee's interest in the residence in the most appropriate manner; and to help lift the stigma of bankruptcy.

b. The applicants

99. The applicants argued that, although their formal bankruptcies had lasted three and five years, the interference with their possessions had effectively lasted some fourteen years. The appointment of a second trustee in bankruptcy after such a lengthy period of time had lapsed since the bankruptcy order in itself raised questions of delay.

100. They further argued that, fourteen years after having been declared bankrupt, they were concerned about additional legal fees which would arise if further court action had been pursued and the risk that they would be unable to pay such fees, resulting in a second bankruptcy. They maintained their argument that legal aid had been, and would have continued to be, refused because they would not have benefited from the success of their legal action. Accordingly, they argued, the remedies proposed were not available and accessible to them.

101. Further, the applicants emphasised that the remedies proposed by the Government only became theoretically possible in October 2000 with the entry into force of the Human Rights Act 1998. By that time, the interference of which they complained had already lasted for eight years.

102. The applicants argued that they were not able to start afresh following the bankruptcy as their home, in respect of which they continued to meet the mortgage payments following the bankruptcy order, remained subject to the control of the trustee and their bankruptcy estate continued to benefit from any increase in equity. They contended in particular that, in light of the fact that at the time of the bankruptcy order there was no equity in the property at Omer Avenue, the trustee should have disclaimed any interest in the property or should have made it clear to them that any mortgage payments would accrue to the benefit of the bankruptcy estate, and not to their benefit. The applicants explained that they had negotiated an agreement with the relevant lenders which required them to pay GBP 520 per month to Barclays and GBP 400 per month to the Nationwide Building Society in order to allow them to keep their home. Meeting these payments was difficult and, the applicants indicated, would have been impossible without the financial assistance of their children. They claimed that they were led to believe that when the mortgage was paid off, the property at Omer Avenue would be theirs, alleging that K.C. had failed to tell them what the real outcome would be. The news, some ten years later, that a new trustee had been appointed to realise the current equity in their home had come as a shock. The applicants criticised the fact that no steps had been taken by the trustee in the preceding ten years to conclude the matter. The applicants had been concerned when the correspondence from D.C. arrived suggesting that they would lose their home and face new legal bills while seeking to resolve their bankruptcy, which would render them susceptible to fresh bankruptcy proceedings. In light of the imbalance in the position of the two parties given the trustee's resources and legal team, they were afraid to incur disproportionately high levels of costs in fighting the trustee.

103. The applicants noted the changes brought about by the Enterprise Act (see paragraphs 71-73 above) but emphasised that these changes were too late for them. In the event, they were required to pay over GBP 35,000 in 2006 in order to settle, from the equity which had subsequently accumulated in their home, the debts arising in a bankruptcy which commenced in 1992 (see paragraphs 55-56 above).

2. The Court's assessment

104. The Court reiterates that it is primordial that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It cannot, and must not, usurp the role of Contracting States whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is therefore an indispensable part of the functioning of this system of protection. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996‑IV; and Demopoulos and Others v. Turkey (dec.) [G.C.], nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04, 21819/04, § 69, 1 March 2010 ).

105. As stipulated in its Akidivar judgment (cited above, §§ 66-67), normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. Further, the complaints intended to be made before this Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law, and any procedural means that might prevent a breach of the Convention should have been used. However, there is no obligation to have recourse to remedies which are inadequate or ineffective.

106. As the Court also held in Akidivar (cited above, § 68), in the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement.

107. Finally, the Court has emphasised that the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up and that it must therefore be applied with some degree of flexibility and without excessive formalism (see Akdivar, cited above, § 69).

108. The Court notes that the applicants' bankruptcies lasted three and five years in total (see paragraphs 4, 20 and 23 above). Upon the making of the bankruptcy order, all the applicants' assets, including their home, came under the control of the trustee (see paragraphs 58-59 above). During the bankruptcy, any assets acquired by the applicants became part of the bankruptcy estate. The applicants were also subject to an obligation to disclose the fact of their bankruptcy in certain circumstances and were subject to restrictions on holding specified offices. Upon discharge, the assets which had vested in the trustee remained part of the bankruptcy estate, although new assets acquired following discharge did not vest in the trustee (see paragraph 63 above). In the applicants' case, the beneficial interest in the property at Omer Avenue remained with K.C. and, upon his release, with the official receiver followed by D.C. The interest was protected by the registration of a caution (see paragraph 9 above), which alerted any person wishing to enter a transaction in respect of the land to the claim on the property. The value of the interest was the amount of the bankruptcy debts; it was not limited to the amount of equity in the property at the time the caution was registered or at the point at which the applicants were discharged from bankruptcy (see paragraphs 65 and 102 above). The Court notes that the law was changed with effect from 2004 inter alia to limit the value of the caution to the amount of the equity in the property (see paragraph 72 above).

109. The Government have proposed a number of remedies to address the applicants' complaint that they were required to pay over GBP 35,000 to settle their bankruptcy debts due to the steps taken by D.C. to realise equity in their home which had accumulated over the previous fourteen years
– namely, court proceedings pursuant to section 303(1) of the 1986 Act and 7(1)(a) of the Human Rights Act 1998 to prevent the trustee from seeking to recover any of the value of their home (see paragraphs 69 and 92 above); refusing to cooperate with D.C. in respect of the proposed settlement which would have required D.C. to apply to the court for an order to enforce sale or possession, or for a charge over the property at Omer Avenue, in the context of which proceedings the applicants could have raised their Convention complaints (see paragraph 93 above); an application to the court pursuant to section 375(1) of the 1986 Act to have the bankruptcy order reviewed on the basis that given the lapse of time since the start of the bankruptcy, the Convention required that the equity in their home should not be used to make further payment of the bankruptcy debts (see paragraphs 68 and 94 above); and finally, an application pursuant to the overriding power of the court under section 303 of the 1986 Act to control the actions of the trustee, arguing that any steps to recover from them any of the equity in their home would breach their Convention rights having regard to the time which had elapsed since the bankruptcy order in their case (see paragraphs 69 and 95 above). In light of the apparently extensive wording of the provisions upon which the Government have relied which grant broad powers to the court to act as it thinks fit following a complaint about the actions of the trustee, the Court considers that the Government have established the existence of potential effective remedies in respect of the applicants' complaints regarding the actions of D.C. and the final settlement reached with their creditors. It is therefore for the applicants to demonstrate why these remedies were not pursued.

110. In response, the applicants complained about the additional fees which they were liable to incur in taking further proceedings to challenge the actions of the trustee (see paragraph 100 above). While the Court has some sympathy with this argument in the circumstances of the present case, it considers that these concerns were insufficient to relieve the applicants of the obligation to pursue at least one of the four remedies proposed by the Government. Although the applicants engaged in direct correspondence with the trustee's solicitors, they did have legal representation and therefore enjoyed access to legal advice. With reference to its conclusions under Article 6 § 1 above (see paragraph 86 above), the Court further considers that the applicants have not demonstrated that they applied for legal aid to contest the trustee's actions and were refused or that they appealed any such refusal (see paragraph 86 above). In particular, the Court observes that the applicants were no longer undischarged bankrupts and that the previous reason for refusing legal aid was therefore no longer relevant (see paragraph 12 above). Finally, the Court observes that in applying to this Court, the applicants relied on the judgment in Luordo, cited above, in asserting their Convention claims. They have failed to demonstrate that they would have been unable to represent themselves in any domestic proceedings or that the proceedings were of a complexity such as to require legal representation. The Court therefore considers that the applicants have failed to exhaust domestic remedies in respect of their complaints regarding the steps taken by D.C. to realise the equity in the property at Omer Avenue which had accumulated over a period of approximately fourteen years, and for the most part after their discharge from bankruptcy, and the final settlement reached with their creditors, as required by Article 35 § 1 of the Convention.

111. Insofar as the duration of the proceedings itself gives rise to potential concerns under Article 8 or Article 1 of Protocol No. 1, the Court recalls that it emphasised in Luordo, cited above, § 70, that while limitations on the right to peaceful enjoyment of possessions which resulted from a bankruptcy order were not open to criticism, there was a risk that an applicant's ability to deal with his possessions could be unreasonably restricted, particularly if the proceedings were protracted. The Court notes that Luordo concerned a bankruptcy which lasted almost fifteen years and entailed the complete control of the trustee over the applicant's assets throughout that period. However, in the present case the applicants' bankruptcies were formally discharged three and five years after the commencement of the bankruptcies. At that point, they were released from the bankruptcy debts and restrictions on their business activities were lifted. Moreover, any new assets which they acquired no longer formed part of the bankruptcy estate from which their debts were to be paid (see paragraph 63 above). The Court further observes that while there was a caution registered against the property, the applicants do not suggest that the caution reduced the value of the property itself (cf. Sporrong and Lönnroth, cited above, § 58). As to whether the registration of the caution hindered the applicants' ordinary enjoyment of their rights, the Court notes in particular that although the applicants referred to a wish to sell the property in 2003 (see paragraph 25 above), they did not allege that the existence of the caution prevented them from doing so or that it otherwise prevented them from dealing with their property as they wished (cf. Matos e Silva, Lda., and Others v. Portugal, 16 September 1996, § 92, Reports 1996‑IV). In this regard, it is also relevant that from October 2000, the applicants could have taken steps to seek to resolve their situation and were not therefore deprived of any possibility of having their complaints taken into account by the relevant authorities throughout the fourteen year period (cf. Sporrong and Lönnroth, cited above, § 70; and Immobiliare Saffi v. Italy [GC], no. 22774/93, § 56, ECHR 1999‑V).

112. In the circumstances of the present case, the Court therefore concludes that the fact that the trustee retained a beneficial interest in the property which subsisted for some fourteen years, and that throughout that time a caution was registered over the property, did not of itself impose a disproportionate burden on the applicants such as to give rise to the appearance of a violation under Article 8 or Article 1 of Protocol No. 1.

113. The applicants' complaints under Article 8 and Article 1 of Protocol No. 1 as regards the delay must therefore be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

C. Other alleged violations of the Convention

114. Lastly, the applicants complained under Article 1 of Protocol No. 4 to the Convention about the arrest warrant issued in respect of the first applicant for his non-payment of business rates and poll tax; under Article 2 of Protocol No. 4 to the Convention that the applicants' right to liberty of movement and freedom to choose their own residence was unlawfully infringed by the restrictions on their ability to dispose of their property at Omer Avenue; and under Article 4 of Protocol No. 7 that, given their discharge from bankruptcy in 1995 and 1997, the increase in the sums required to settle their affairs between 1996 and 2006 amounted to being punished twice.

115. The Court observes that the respondent State has not ratified the above-mentioned Protocols. Accordingly, the complaints are incompatible ratione personae and must be rejected pursuant to Article 35 §§ 3 and 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Lawrence EarlyLech Garlicki
RegistrarPresident

 

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