AS TO THE ADMISSIBILITY OF
Application No. 36744/97
by Ian COOK
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 4 March 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 6 May 1997 by
Ian COOK against the United Kingdom and registered on 27 June 1997
under file No. 36744/97;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a 47 year old British citizen, living in Exeter.
The facts of the case, as submitted by the applicant, may be summarised
as follows.
In October 1991 the applicant was served a notice by a company
dealing with water distribution ("the company") of its intention to lay
a water distribution pipeline through his land. The applicant, through
a valuer, assessed his damage at £150,000.00. The company offered
£5,806.00 and the applicant referred the matter to the Lands Tribunal
claiming £70,000.00, in light of the potential value of the land and
the development projects he had for the future.
On 3 February 1994, the company made a "sealed bid offer" of
£15,000.00, warning the applicant of the likely consequences as to
costs of the proceedings if he refused to accept it. The offer was not
accepted.
In October 1993 a pre-trial review was held before the Registrar
of the Lands Tribunal where the applicant for financial reasons
objected to the three witnesses asked for by the company and was
overruled.
In September 1994, the case was heard by the Lands Tribunal
(Mr M St J Hopper). The hearing lasted five days, three expert
witnesses were called for each side. On the last day an additional
witness was called who gave evidence as to the materials used, the
condition of the pipe and its performance. On 16 February 1995 the
Lands Tribunal found that the land had no development value and awarded
compensation of £4,800.00. As the applicant had refused to accept the
proposed settlement offer of 3 February 1994, he was also ordered on
28 June 1995 to pay the costs of the proceedings.
The applicant appealed the order of the Lands Tribunal and
applied to the Court of Appeal for leave to adduce further evidence.
On 11 November 1996 the Court of Appeal refused leave to adduce further
evidence and dismissed the appeal. The Court found that no prior leave
was required to be given before a witness of fact gives evidence, that
the compensation awarded was adequate and, indeed in accordance with
the applicant`s witness statement if the land had no development value
(as found by the Lands Tribunal). It also found that costs had been
properly awarded against the applicant, in accordance with the Lands
Tribunal Rules 1975 and Land Compensation Act 1961.
On 12 December 1996 the Court of Appeal refused leave to appeal
to the House of Lords.
As to costs, the amount was determined on 19 February 1997 by the
Registrar of the Lands Tribunal. On the applicant's application the
taxation review was made by the Registrar on 26 March 1997 and the
taxed costs in the amount of £44,359.00 were confirmed. The applicant
appealed and was heard by the President of the Lands Tribunal. The
appeal was dismissed by the President on 16 May 1997 and the costs were
confirmed as taxed.
The applicant did not pay, and in October 1997 a statutory demand
for the outstanding costs was made. The money was again not paid, and
a bankruptcy petition was presented.
COMPLAINTS
The applicant complains under Article 6 of the Convention about
the court's decisions and alleges a breach of his right to a fair
hearing by an impartial tribunal. The applicant claims that he was not
on equal terms with the company as they had experienced lawyers and
were able to engage an expert London barrister, that the case was
decided by only one member of the Lands Tribunal who is not even a
judge, that he was not informed on the possibility of legal aid and
that an extra witness was called without prior written notice. The
applicant complains also about the costs awarded against him. He
alleges partiality in that the same person, the Registrar of the
tribunal, decided in the pre-trial review and allowed three witnesses
for each party, and later determined the costs of those witnesses.
The applicant also alleges a breach of Article 1 of Protocol
No. 1 claiming that the Lands Tribunal failed to explore fully the
effects of the pipeline on his land and that the company should at
least enter into some written agreement with him which would clearly
outline the deprivations of his right. The applicant complains that the
UK Government regulatory body (OFWAT) does not impose an obligation on
the company to agree a written easement with him.
THE LAW
1. The applicant complains under Article 6 (Art. 6) of the
Convention about the unfairness of proceedings and partiality of the
tribunal because he is not legally qualified and was not informed on
the possibility of legal aid, because a witness was called without
prior notice and because his case was decided by only one member of a
tribunal, who is not even a judge. The applicant also complains that
costs were awarded against him and that the Registrar was biased as he
determined costs after he had previously determined the number of
expert witnesses.
Article 6 (Art. 6) of the Convention, insofar as relevant,
provides as follows:
"1. In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to a
fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law."
The Commission first recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties in the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention. The Commission refers, on this point, to its constant case-
law (see eg. No. 5258/71, X v. Sweden, Dec. 8.2.73, Collection 43, pp.
71, 77; No. 7987/77, X v. Austria, Dec. 13.12.79, D.R. 18, pp. 31, 45;
No. 19890/92, Ziegler v. Switzerland, Dec. 3.5.93, D.R. 74, p. 234).
In the present case, the applicant complains to a large extent
about the outcome of the case in which his attempt to obtain more
compensation failed. The applicant also complains about not being on
equal grounds with the other party as he had no counsel and was not
informed on legal aid and about the partiality of the tribunal.
However, even if these allegations could raise an issue under the
Convention, the Commission notes that they were not raised on appeal
before the Court of Appeal. It follows that they must be rejected for
non-exhaustion of domestic remedies under Articles 26, 27 para. 3
(Art. 26, 27-3) of the Convention.
The allegations concerning the extra witness who was called
without prior notice were rejected by the Court of Appeal on the ground
that prior notice was not necessary. In assessing the fairness of
proceedings the Commission must consider them as a whole and must
ascertain that, in their entirety, they were fair (see, inter alia the
Stanford v. the United Kingdom judgment of 23 February 1994, Series A
no. 282-A, p. 10, para. 24). In particular, every party to such
proceedings must have a reasonable opportunity of presenting his or her
case to the court under conditions which do not place him or her at
substantial disadvantage vis-a-vis the other party (see inter alia
No. 10938/84, Dec. 9.12.86, D.R. 50, p. 115). In the present case, the
applicant had a lengthy hearing at the Lands Tribunal which resulted
in a 39 page decision, provided expert witnesses and was able to
present his allegations on appeal. It is true that an extra witness was
called by the tribunal but there is no indication that this witness was
at all decisive in the case. The Court of Appeal noted that the
applicant could also have asked for an adjournment and, in any event,
the case was adjourned for six weeks after the hearing of that extra
witness and the applicant asked for no other witnesses. The Commission
finds that the applicant`s allegations as to the extra witness called
do not affect the fairness of the proceedings as a whole and must be
rejected as manifestly ill-founded.
The applicant also complains that the Registrar was not impartial
as he decided on the number of expert witnesses in the pre-trial review
and also determined costs later on. However, even if these allegations
could raise an issue under Article 6 (Art. 6) of the Convention, the
Commission notes that the costs were revised on the applicant's appeal
by the President of the Lands Tribunal on 16 May 1997. Any possible
deficiencies were therefore remedied and, in any event, it appears that
the present allegations were not raised in the proceedings for the
taxation review by the Registrar nor on appeal before the President of
the Lands Tribunal. This complaint must therefore be rejected as
manifestly ill-founded too.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant complains under Article 1 of Protocol No. 1
(P1-1) that he is deprived of peaceful enjoyment of his possession as
the pipeline was laid over his land in the exercise of compulsory
statutory powers rather than pursuant to a written easement agreement
which could have defined the limits of the area which could have been
affected by the pipeline and that the Lands Tribunal failed to fully
explore the effects of the pipeline on his land.
Article 1 of Protocol No. 1 (P1-1) reads as follows:
"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."
The Commission first notes that the allegations about the Lands
Tribunal fall rather under Article 6 (Art. 6) of the Convention and
have been dealt with above already.
The Commission further notes that the laying of a pipeline was
an interference with the applicant's peaceful enjoyment of his
possessions and that it must therefore be justified by reference to the
requirements of Article 1 of Protocol No. 1 (P1-1).
The Commission considers that there is a clear general interest
in permitting statutory undertakings such as to lay pipelines. Further,
in the present case, law provides for the payment of compensation for
depreciation of the land's value. Whilst the Lands Tribunal did not
agree with the applicant as to whether his land had development value,
there is no dispute as to the depreciation which had occurred in the
absence of development value, for which the applicant received the
compensation.
Even if it is true, as the applicant contends, that it would have
been preferable if an easement agreement had been reached between the
parties, the company`s failure to seek or enter into such an agreement
cannot affect the position in the present case.
Finally, the Commission would note that the company has now
brought enforcement proceedings against the applicant. These
proceedings are a consequence of the applicant`s failure to accept the
"sealed bid offer" too, and do not affect the position as to
compensation in the present case, either.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy