AS TO THE ADMISSIBILITY OF
Application No. 15414/89
by Andrew DICKSON
against the United Kingdom
The European Commission of Human Rights (Second Chamber)
sitting in private on 14 October 1991, the following members being
present:
MM. S. TRECHSEL, President of the Second Chamber
G. SPERDUTI
G. JÖRUNDSSON
A. WEITZEL
H.G. SCHERMERS
Mrs. G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ RUIZ
Mrs. J. LIDDY
Mr. M.P. PELLONPÄÄ
Mr. K. ROGGE, Secretary to the Second 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 5 July 1989
by Andrew DICKSON against the United Kingdom and registered on
29 August 1989 under file No. 15414/89;
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 British citizen born in 1938. He supplies
and installs double glazing.
The facts, as presented by the parties, may be summarised as
follows.
In July and August 1980 the applicant signed written
assurances under Section 34 (1) of the Fair Trading Act 1973 ("FTA")
that he would refrain, in future, from committing breaches of contract
with customers of his double glazing business and then failing to
give proper redress. The applicant states that he was misled into
making the assurances by a member of the staff of the Director General
of Fair Trading ("DGFT") who had failed to reveal his true identity at
the time. The DGFT issued a press release in 1980 concerning the
assurances.
Following further complaints from the applicant's customers,
on 24 February 1984 the DGFT, referring to the assurance of August
1980, made an Originating Application to the Wakefield County Court
under Section 35 of the FTA that the applicant be ordered (1) to cease
committing breaches of contract, and (2) when in breach, to give
adequate redress.
On 13 April 1984 the Registrar made an order that the
applicant serve particulars of his Answer within 28 days, failing
which he was to be debarred from defending. Thereafter, lists of
documents were to be exchanged with 28-day time limits. The
applicant's Answer was filed on 30 April 1984.
The applicant filed his list of documents on 12 July 1984.
Amongst other papers, the list included six files of documents
relating to correspondence with customers.
On 16 July 1984, the DGFT requested copies of the applicant's
documents. Leave to amend the Originating Application was granted to
the DGFT on 31 July 1984, with liberty to the applicant to file an
amended Answer, if he wished, within 6 weeks thereafter.
The applicant's solicitors applied to be removed from the
court record in October 1984; the application was granted on
23 November 1984.
The DGFT applied to the Court for judgment in default on
grounds that the applicant had failed to produce the documents. On
29 March 1985 an order was made (amended on 10 April 1985) that the
applicant should produce his documents within 28 days, in accordance
with the order of 13 April 1984. Although the applicant had changed
solicitors, his former solicitors still held, in particular, the six
files referred to above. The former solicitors would not hand over
the files or provide copies or allow inspection. They contended that
they were entitled to refuse by virtue of the lien they had in the
documents, their costs not having been paid. On 29 April 1985, the
applicant not having produced the documents, the applicant's Answer
was struck out and an order made that:
"The Respondent, ANDREW DICKSON, do refrain, whether
by himself, his servants or agents or otherwise, from:-
(1) Continuing in the course of his business the
course of conduct set out below.
(2) Carrying on in the course of his business any
similar course of conduct to that set out below.
The course of conduct referred to above is as follows:-
(a) Committing breaches of contract with consumers by
(i) failing to carry out contracts for work and
materials in a proper and workmanlike manner;
(ii) supplying, pursuant to the said contracts,
materials which are not of merchantable quality
and/or not fit for their purpose
(b) When in breach of contract as described in sub-
paragraph (a) above, failing to give to
consumers within a reasonable time any or any
adequate redress."
On 14 May 1985 the applicant, acting in person (his latest
solicitors had also come off the record), applied for leave to appeal
out of time, and on 17 June 1985 Judge Taylor ordered that the
applicant be given leave to appeal within 3 months provided he
produced his documents for inspection. On 13 September 1985 that time
limit was extended, again by Judge Taylor to 29 October 1985,
because the applicant still could not obtain the documents from his
former solicitors. On 28 October 1985, the court adjourned the matter
at the DGFT's request for another 28 days to allow him to
instruct counsel.
On 11 December 1985 the applicant sought a further extension
of time which was opposed by the DGFT. A final extension was granted
to 4:00 p.m. on 14 February 1986, and in default the right of appeal
was to be refused and the Order of 29 April 1985 was to stand. The
applicant applied for the Order of 11 December 1985 to be stayed pending
his negligence action against his former solicitors (due to be heard
on 30 January 1986). That extension was refused on 28 January 1986.
Following correspondence between the Treasury Solicitor and the former
solicitors, the contents of the applicant's papers were eventually
sent to the Treasury Solicitor on 19 February 1986, i.e. 15 days after
the final extension.
An application by the applicant for further and better
particulars and a cross-application by the DGFT were considered on 19
May 1986 by the Registrar and dismissed on the ground that the Order
of 11 December 1985 was a final order.
On 20 May 1986 the applicant, who alleged that he only heard
about the late disclosure of the documents on 19 May 1986, applied for
an order that the Order of 29 March 1985 had been complied with as
the late disclosure was not his fault. A hearing was listed for 14
July 1986, but the applicant on 27 June 1986 applied for an
adjournment pending an opinion from counsel. On 22 September 1986
Judge Baker said that the matter should go before Judge Taylor. An
amended application was made on 30 September 1986 for a re-hearing of
the application on the extension of time.
On 12 December 1986 Judge Taylor adjourned the matter because
he was troubled as to whether he was able, in law, to consider the
application, the Order of 11 December 1985 having been a final order.
The case was re-listed for 18 February 1987, and Judge Taylor refused
the application for an extension of time, finding that, although he
had power to amend his own order, on balance he had been extremely
lenient with the applicant but should now refuse the application.
The applicant applied for leave to appeal to the Court of
Appeal. On 24 November 1987, his application was adjourned for a date
to be fixed for both parties to attend. The application was again
adjourned on 21 January 1988 since the DGFT's counsel was unavailable.
The application was finally heard on 3 March 1988 and leave to appeal
granted.
The appeal was heard by the Court of Appeal on 7 March
1989. It granted the applicant's application with the result that the
Order of 11 December 1985 was considered to have been complied with.
Sir Roger Ormrod noted:
"It is quite true that the overall delay is formidable and
it must be doubtful whether the application by the Director
of Fair Trading can in fact be dealt with at all after a
delay of at least ten years. It is a pity that it should be
pursued."
The following exchange took place at the end of the hearing:
"LORD JUSTICE MAY: What we said about the delay and the
need for an immediate, urgent hearing were not just pious
expectations. I do hope that both firms of solicitors
instructing each [counsel] will, if necessary, take the
train to Wakefield and go and see the Registrar in his
office.
[COUNSEL FOR THE TREASURY SOLICITOR]: My Lord, that has been
done regularly by the Treasury Solicitor.
LORD JUSTICE MAY: That may well be. Nevertheless show him a
copy of our views as to the delay and the urgency of this
matter. Get this on for hearing. We have got ten days
before Easter."
The case was not in fact heard before Easter 1989. Shortly
after the hearing the DGT withdrew from the proceedings on counsel's
advice decided not to continue the proceedings since the applicant had
ceased to carry on business since early 1985 and the reason for
pursuing the proceedings had disappeared.
Relevant domestic law and practice
The Director General of Fair Trading
The Director General of Fair Trading (the DGFT) was appointed by
the Secretary of State in 1973 under the powers given to him under S. 1
of the Fair Trading Act 1973 (the FTA) for the purpose of performing
the functions assigned or transferred to the DGFT by or under the
FTA. Many of his functions are "for the protection of consumers".
Since the appointment of the DGFT other functions have been
conferred on him under the Consumer Credit Act 1974, the Restrictive
Trade Practices Act 1976, the Estate Agents Act 1979 and the
Competition Act 1980.
The case of the applicant arose from the functions which are
performed by the DGFT under Part III of the FTA which is headed
"Additional Functions of Director for Protection of Consumers".
The DGFT functions under this part of the Act come into
play where it appears to him that a person carrying on a business has
in the course of that business persisted in an unfair course of
conduct which is detrimental to the interests of consumers in the
United Kingdom, whether those interests are economic interests or
interests in respect of health, safety or other matters. In these
circumstances the DGFT is under a duty to use his best endeavours,
by communication with the person concerned or otherwise, to obtain
from him a satisfactory written assurance that he will refrain from
continuing that unfair course of conduct and from carrying on any
similar course of conduct in the course of his business (s. 34 (I)).
Before obtaining an assurance the task of the DGFT under
subsection (1) of s.34 is first to assess whether a person has in the
course of his business
(a) persisted,
(b) in an unfair course of conduct,
(c) which is detrimental to the interests of consumers
in the United Kingdom.
For the purposes of determining whether it appears to the
DGFT that a person has persisted in an unfair course of conduct,
the DGFT has regard to complaints received by him, whether from
consumers or from other persons, and any other information collected
by or furnished to him (s. 34(4)).
The "unfair course of conduct" is defined by s34(1) and (2)
of the Act. A course of conduct is regarded as unfair to consumers
if it consists of contraventions of one or more enactments which
impose duties, prohibitions or restrictions enforceable by criminal
proceedings, regardless of whether the person carrying on the business
has or has not been convicted of any offence in respect of any such
contraventions (s. 34(2) of the Act), for example, offences committed
by a person in the course of his business such as offences under the
Trade Descriptions Act 1968, the Hallmarking Act 1973, the Weights and
Measures Act 1985, the Consumer Protection Act 1987.
A course of conduct on the part of a person carrying on a
business is also regarded as unfair to consumers if it consists of
things done, or omitted to be done, in the course of that business in
breach of contract or in breach of a duty (other than a contractual
duty) owed to any person by virtue of any enactment or rule of law and
enforceable by civil proceedings, whether (in any such case) civil
proceedings in respect of the breach of contract or breach of duty
have been brought or not (s. 34(3) of the Act). For example, this
would cover breaches of implied obligations such as those imposed
under the Sale of Goods Act 1979 or the Supply of Goods and Services
Act 1982.
The detriment to the interests of consumers is assessed by the
DGFT in the light of the facts of each case. Examples of economic
detriment are where a person in the course of his business repeatedly
sells goods which are not merchantable or are not suitable for their
purpose, or where a contract for work and materials is not carried out
with reasonable care and skill. Detriment to health is, for example,
where food brought at retail shops or consumed in restaurants does not
come up to the standards of hygiene specified by various enactments.
Interests relating to safety are those where goods and services, for
example toys and installation of gas cookers, are unsafe and do not
conform to certain standards prescribed by law.
Having considered the evidence given to or obtained by the
DGFT if it appears to him that a person in the course of the
business has persisted in an unfair course of conduct, the DGFT is
obliged to "use his best endavours, by communicating or otherwise" to
obtain a satisfactory written assurance from a trader. In this
connection the DGFT policy is first to write to the person
carrying on a business who has persisted in an unfair course of
conduct and ask him to give a satisfactory written assurance. The
DGFT's communication is accompanied by an explanation of Part III
of the FTA and the consequences which flow from not giving the
assurance, the assurance itself and the particulars of the unfair
course of conduct.
Where the person in question fails to give the assurance and
before taking proceedings against him under S. 35 of the FTA the
DGFT uses his best endeavours through his own employees or through
the employees of the local Trading Standards Department to
explain to the person who has carried on the unfair course of conduct,
the functions of the DGFT the details of the unfair course of
conduct and the requirement to give the satisfactory written
assurance.
If the DGFT is unable to obtain from the person in
question a written assurance or the person has given such an
assurance and it appears to the DGFT that he has failed to observe
the assurance, the DGFT may bring proceedings against him before
the Court (s. 35 (a) and (b) of the Act).
Section 35 proceedings
Under s.35 of the Act the DGFT has a discretion to bring
proceedings against a person who has persisted in an unfair course of
conduct and who has failed to give the assurance or, having given it,
failed to observe it.
The proceedings are brought against a person either before
the Restrictive Practices Court or the County Court and both courts
have like jurisdiction. The choice of court is determined by the size
of the business carried on by a person and whether there is likely to
be the determination of a question (whether of law or of fact) of such
general concern as to justify it being reserved for determination by
the Restrictive Practices Court (s.41 of the FTA).
The proceedings brought under s.35 of the Act are civil
proceedings. S. 363(1) states: "For the purposes of section 11 of the
Civil Evidence Act 1968 ... proceedings under section 35 of this Act
shall ... be taken to be civil proceedings within the meaning of the
Act in question".
Where the DGFT brings proceedings against a person under
s.35 of the Act, in order to succeed the DGFT has to prove to the
Court that:
(a) the person against whom the proceedings are brought
has, in the course of a business carried on by him, persisted
in an unfair course of conduct, and
(b) he is likely to continue that course of conduct or to
carry on a similar course of conduct (s.37 (1) of the Act).
Where the DGFT proves his case to the court, the court may
make an order against the person and where the court decides to make
such an order, the order indicates the nature of the course of conduct
and directs the person against whom the order is made:
(a) to refrain from continuing the course of conduct, and
(b) to refrain from carrying on any similar course of
conduct in the course of his business (s. 37 (2).
In the alternative, where the court makes a finding that a
person against whom the proceedings are brought by the DGFT under
s.35 of the FTA has persisted in an unfair course of conduct and is
likely to continue that course of conduct, and that person offers to
give to the court an undertaking either:
(a) that he will refrain from the courses of
conduct given in subparagraphs (a) and (b)
of the preceding paragaph, or
(b) that he will take particular steps which, in the
opinion of the Court, would suffice to prevent the
continuance of the course of conduct to which the
complaints relate and to prevent the carrying on
of any similar course of conduct in the course of his
business
the Court may, if it thinks fit, accept the undertaking instead of
making an order againt the person concerned (s.37 (3)).
Where a court makes an order or accepts undertakings from a
person and the order or the undertakings are not observed by that
person such a breach is contempt of court. The DGFT has a
discretion to bring contempt proceedings against that person.
Contempt proceedings
"Contempt of Court" is a term used to describe conduct which
interferes with the due administration of justice, whether generally or
in relation to a particular case. The courts have for centuries
assumed the power to coerce those whose acts or omissions tend to
undermine the system of justice. Contempts may be divided into two
types, usually referred to as civil contempt and criminal contempt.
Civil contempt usually consists of deliberate disobedience to an order
of the court and is the ultimate sanction which the court has against
a person who refuses to comply with its orders. Although its
existence serves to uphold the administration of justice in general, a
civil contempt is essentially a wrong to the person who is entitled to
the benefit of the court order. Committal for criminal contempt is
penal in nature and seldom takes civil contempt's usual form of an
action by one party to the detriment of the other party. Examples of
criminal contempt are disrupting proceedings in Court, publishing
material likely to undermine public confidence in the court or judge
or which may prejudice a fair trial, and obstructing officers of the
court, the parties or witnesses.
The penalties for contempt of court are laid down in section
14 of the Contempt of Court Act 1981. A superior court (including the
High Court) may impose an unlimited fine or a term of imprisonment of
up to two years.
COMPLAINTS
The applicant complains of the length of the proceedings
brought against him. He invokes Article 6 para. 1 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 5 July 1989 and registered
on 2 September 1989.
On 5 February 1990 the Commission decided to communicate the
application to the Government and to ask for written observations on
the admissibility and merits of the application.
The Government's observations were submitted on 15 May 1990
after one extension in the time-limit and the applicant's observations
in reply were submitted on 28 August 1990 after one extension in the
time-limit.
On 7 June 1990 the Commission decided to grant legal aid to
the applicant.
On 8 January 1991 the Commission decided that the application
be referred to the Second Chamber.
THE LAW
The applicant complains of the length of the proceedings
brought against him. He invokes Article 6 para. 1 (Art. 6-1) of the
Convention, which in its first sentence provides:
"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 recalls that Article 6 para. 1 (Art. 6-1) only
applies to proceedings which involve the determination of either a
civil right or obligation or of a criminal charge.
The Commission has therefore considered the character of the
proceedings in question. It notes that neither the Government nor the
applicant have submitted that they concerned a criminal charge. The
Commission is satisfied, having had regard to the criteria laid down
by the Court i.e. the classification of the offence, the nature of the
offence and the severity of the penalty that the proceedings fell
outside the criminal sphere (see e.g. Eur. Court H. R., Engel and Others
judgment of 8 June 1976, Series A no. 22, pp.33-34 para. 80).
The applicant has submitted that the proceedings involved a
determination of his civil rights and obligations since it was
concerned with his business and livelihood and led, he alleges, to
his business closing down. The Government have contended that the
proceedings did not concern a determination of the applicant's civil
rights and obligations and further submit that the civil nature of
the proceedings did not of itself point to the existence of a "civil"
right. For the reasons set out below, however, the Commission finds
it unnecessary to decide whether rights or obligations in issue were
"civil" within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention.
The Commission recalls that Article 6 para. 1 (Art. 6-1) is only
applicable to proceedings the result of which is directly decisive for
the civil rights and obligations of the person concerned. A tenuous
connection or remote consequences are not sufficient (see e.g. Eur.
Court H.R., Le Compte, Van Leuven and De Meyere judgment of 23 June
1981, Series A no. 43 p. 21, para. 47). The Commission notes that
these proceedings concerned the applicant's business practices. The
Order of the Court given in default on 29 March 1985 ordered the
applicant to refrain from committing breaches of contract with
customers by, for example, failing to carry out contracts for work and
materials in a proper and workmanlike manner or by failing to give
consumers adequate redress when in breach of contract. The Commission
considers that the order merely sets out in a formal manner the
contractual obligations which the applicant has towards his clients;
it does not purport to define or alter the content of those
obligations. Moreover, the question as to the imposition of the
sanction of contempt for breach of the order was not in issue. In
these circumstances, the Commission finds that the proceedings could
not be said to be directly decisive for any of the applicant's civil
rights or obligations and consequently do not involve a determination
of those rights or obligations within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention.
It follows that the application is incompatible with the
provisions of the Convention within the meaning of Article 27
para. 2 (Art. 27-2).
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy