AS TO THE ADMISSIBILITY OF
Application No. 14053/88
by Neal DUGGAN
against Ireland
The European Commission of Human Rights sitting in private on
14 December 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 30 April 1988
by Neal DUGGAN against the United Kingdom and registered on 26 July
1988 under file No. 14053/88;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Irish citizen born in 1939 and resident in
Dublin. The applicant previously introduced before the Commission
Application No. 12234/86, which was declared inadmissible on
2 December 1986. The facts as submitted by the applicant may be
summarised as follows.
It appears that Mr. M. delivered a Stock Transfer Form to
Allied Irish Banks PLC (AIB) purporting to transfer one fully paid 25
p ordinary share in that company to the applicant.
On 10 April 1987, AIB entered the applicant's name on its
register of members as owner of the share and issued a share
certificate in his name, allegedly without his knowledge or consent.
On discovering this, the applicant objected and requested AIB to
rectify their register by removing his name. AIB accordingly made an
application to the High Court by summons dated 13 May 1987 for an
order for rectification of their register and recovery of the share
certificate. The summons was sent to the applicant and Mr. M. The
applicant filed affidavits on 19 and 21 May 1987 and on 19 May 1987
also served notice of intention to cross-examine the Secretary and
Assistant Manager of AIB on the affidavits filed by them on behalf of
AIB. Mr. M. entered no appearance and filed no affidavit in the
action.
The application was heard in the High Court by Mr. Justice
Costello on 25 May 1987. The judge refused to allow the applicant to
cross-examine the officials of AIB. The applicant submitted that the
application had been unnecessary since AIB had statutory authority to
rectify its own register. The judge accepted that a court order was
not necessary if all the parties consented but that it was not clear
in this case that Mr. M. did consent. The judge granted AIB's
application and ordered the rectification of the register. He refused
to order AIB to pay the applicant's costs on the ground that if the
applicant had agreed to the order of rectification he would have borne
no costs.
The applicant appealed to the Supreme Court on the grounds,
inter alia, that the judge had no jurisdiction to grant the
rectification. He also applied for a new trial and to introduce
evidence to the effect that prior to the High Court hearing Mr. M. had
tried to settle matters with AIB.
On 9 October 1987, the applicant's motions came before the
Supreme Court, consisting of Messrs. Justices Finlay (the Chief
Justice), Hederman and Henchey. The applicant was refused permission
to cross-examine the officials of AIB or to file a further affidavit.
The matter came back before the same court on 23 October 1987. The
applicant asked the judges if any of the judges held shares in AIB.
After retiring to consider the question, the Chief Justice stated:
"Neither I nor any other member of this Court has any interest
in the plaintiff company (AIB). I have ascertained on enquiry
that as trustee of the Honourable Society of King's Inns my
name is registered on the company's register since the society
holds shares in the bank (AIB) in respect of prize funds and
scholarships which the society administers. The Court does
not consider that this fact constitutes a bona fide complaint
against its membership or invalidates its capacity to hear the
case."
The applicant then continued with his application.
The Court refused to set aside its decisions of 9 October 1987
and awarded costs against the applicant. On 6 November 1987, the
Court, consisting of Messrs. Justices Finlay, Hederman and Henchey,
dismissed the applicant's appeal.
Following his appeal, the applicant carried out investigations
and discovered that:
a. The Chief Justice, Mr. Justice Finlay, had been a
shareholder and member of AIB since 1973 in respect of
his trusteeship of the Honorable Society of King's Inn;
b. Mr. Justice Hederman's sister was a director and a
shareholder in AIB;
c. Mr. Justice McCarthy's wife held shares in AIB;
d. Mr. Justice Henchey's mother-in-law apparently living
at the same private address as the judge was a
shareholder in AIB;
e. Members of the family of the Court clerk, including
his wife and children were shareholders in AIB.
He also discovered inter alia that AIB's solicitor was a
personal friend of the Chief Justice and Court clerk.
By letters dated 16 December 1987 and 12 January 1988, the
applicant protested to the Registrar of the Supreme Court at these
links between AIB and the court which dealt with his appeal and
requested a rehearing of his appeal and an amendment of the order of
6 November 1987. By letter dated 14 January 1988, the Registrar
informed the applicant that the order required no amendment, and that
the Chief Justice had directed that a re-hearing would not be granted.
The costs of the appeal were taxed by a taxing master on
25 May 1988 at £ 2,447.30. The applicant states that the taxing
master also has an account with AIB.
COMPLAINTS
The applicant complains that he did not on his appeal to the
Supreme Court receive a fair hearing before an independent and
impartial tribunal on 9 October 1987, 23 October 1987 and 6 November
1987, since the judges involved and the Court clerk had a personal
interest in or connection with AIB. He complains that he was given no
opportunity to object to the participation of Messrs. Justices Hederman
and Henchey on 6 November 1987 and that the 3 judges and the clerk of
the Court on that day were automatically disqualified and should not
have been involved. He complains also in relation to Mr. Justice
Hederman that since he is liable to pay costs to Mr. Justice Hederman
arising out of his attempt to sue the judge for his involvement in a
decision of the Supreme Court on 24 November 1982 that judge should
never participate in any cases involving the applicant. He further
complains of the lack of impartiality of the taxing master.
The applicant also complains that he received an unfair
hearing, inter alia, as a result of the hostile attitude of the judges
and of frequent interruptions. He complains that the entry of his
name on AIB's registry without his knowledge and consent deprived him
of the peaceful enjoyment of his possessions. He further complains
that he has no effective remedy in respect of his complaints.
The applicant invokes Articles 6 para. 1 and 13 of the
Convention and Article 1 of Protocol No. 1 to the Convention.
THE LAW
1. The applicant complains that he was deprived of a fair hearing
before an independent and impartial tribunal in the proceedings before
the Supreme Court as a result of the connections which he found
between members of the Court and AIB, a party to the proceedings. He
also complains of not receiving a fair hearing. He invokes Article 6
para. 1 (Art. 6-1) of the Convention, which 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 must first consider whether the applicant's
complaints concern the determination of his civil rights or
obligations within the meaning of that provision. The Commission
recalls that in this case the applicant had objected to the transfer
into his name of one share in AIB and demanded rectification of AIB's
register. AIB had accordingly applied to the court for an order of
rectification which was granted. The applicant, as a formal party to
the proceedings, had chosen to appear at the hearing and to argue that
AIB did not require a court order in order to rectify its register.
The court did not accept his argument and refused to award him his
costs. It appears that the applicant appealed, maintaining that AIB
was not required to seek a court order and that the judge had had no
jurisdiction to grant the order. The ownership of the share was not
in issue in the appeal. The Commission accordingly finds that the
subject matter of these proceedings concerned in essence the powers of
AIB to rectify its own register and that it did not concern any of the
civil rights or obligations of the applicant within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that these complaints are incompatible ratione
materiae with the provisions of the Convention within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant has also complained that the entry of his name
on AIB's register without his consent deprived him of the peaceful
enjoyment of his possessions contrary to Article 1 of Protocol No. 1
(P1-1). However, under Article 25 para. 1 (Art. 25-1) of the
Convention, the Commission may only receive an application from a
person, non-governmental organisation or group of individuals where
the applicant alleges a violation by one of the Contracting Parties of
the rights and freedoms set out in the Convention and where that Party
has recognised this competence of the Commission. The Commission may
not, therefore, receive applications directed against private
individuals or bodies. In this respect the Commission refers to its
established case-law (see e.g. No. 172/56, Dec. 20.12.57, Yearbook 1
pp. 211, 215; No. 852/60, Dec. 19.9.61, Yearbook 4 pp. 346, 352; No.
3925/69, Collection 32 pp. 56, 58; No. 4072/69, Dec. 3.2.70, Yearbook
13 pp. 708, 716; No. 9022/80, Dec. 13.7.83, D.R. 33 pp. 21, 36).
Since the registration of the share in his name was the apparent
result of the actions of Mr. M. and AIB, it follows that this part of
the application is incompatible ratione personae with the provisions
of the Convention within the meaning of Article 27 para. 2 (Art. 27-2)
of the Convention.
3. The applicant also complains that he has no effective remedy
in respect of his complaints contrary to Article 13 (Art. 13) of the
Convention which guarantees that everyone whose rights and freedoms as
set forth in this Convention are violated shall have an effective
remedy before a national authority.
Insofar as the applicant invokes Article 13 (Art. 13) in
relation to his complaints under Article 6 (Art. 6), the Commission
recalls that it has found these complaints incompatible ratione
materiae with the provisions of the Convention. It therefore follows
that the complaint under Article 13 (Art. 13) in this regard must also
be dismissed as incompatible ratione materiae with the provisions of
the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
The Commission has examined the applicant's complaints under
Article 1 of Protocol No. 1 (P1-1) and found that the complaints are
incompatible ratione personae with the provisions of the Convention.
It follows that this complaint is also incompatible ratione materiae
with the provisions of the Convention within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)