EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 24433/94
E.D.C.
against
the United Kingdom
REPORT OF THE COMMISSION
(adopted on 26 February 1997)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-5). . . . . . . . . . . . . . . . . . . . . . . . . . . .1
II. ESTABLISHMENT OF THE FACTS
(paras. 6-43) . . . . . . . . . . . . . . . . . . . . . . . . . . .2
III. OPINION OF THE COMMISSION
(paras. 44-63). . . . . . . . . . . . . . . . . . . . . . . . . . .8
A. Complaint declared admissible
(para. 44). . . . . . . . . . . . . . . . . . . . . . . . . .8
B. Point at issue
(para. 45). . . . . . . . . . . . . . . . . . . . . . . . . .8
C. As regards Article 6 para. 1 of the Convention
(paras. 46-62). . . . . . . . . . . . . . . . . . . . . . . .8
CONCLUSION
(para. 63). . . . . . . . . . . . . . . . . . . . . . . . . 11
APPENDIX: DECISION OF THE COMMISSION AS TO
THE ADMISSIBILITY OF THE APPLICATION. . . . . . . . . . . . 12
I. INTRODUCTION
1. The present Report concerns Application No. 24433/94 introduced
on 22 March 1994 against the United Kingdom and registered on
20 June 1994. The applicant is a British national born in 1924 and
resident in London. The respondent Government, the United Kingdom,
are represented by Iain Christie, Agent, Foreign and Commonwealth
Office.
2. The application was communicated to the Government on
22 February 1995. Following an exchange of written observations, the
complaint relating to the length of proceedings (Article 6 para. 1 of
the Convention) was declared admissible on 29 November 1995. The
decision on admissibility is appended to this Report. The parties
have submitted observations on the merits of the case. The Government
did so by letters dated 16 February, 4 March and 20 August 1996
together with 10 January 1997. The applicant's observations on the
merits were contained in his letters dated 6 February, 5 March, 2 and
12 April, 14 May, 1 and 19 July, 13 September, 4 and 12 November and
11 and 31 December 1996.
3. Having noted that there is no basis upon which a friendly
settlement within the meaning of Article 28 para. 1 (b) of the
Convention can be secured, the Commission (First Chamber), after
deliberating, adopted this Report on 26 February 1997 in accordance
with Article 31 para. 1 of the Convention, the following members
being present:
Mrs. J. LIDDY, President
MM. E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
B. MARXER
B. CONFORTI
N. BRATZA
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
4. In this Report the Commission states its opinion as to whether
the facts found disclose a violation of the Convention by the United
Kingdom.
5. The text of the Report is now transmitted to the Committee of
Ministers of the Council of Europe, in accordance with Article 31
para. 2 of the Convention.
II. ESTABLISHMENT OF THE FACTS
6. On 14 January 1988 the applicant, who earned his living as a
company director, agreed to become a non-executive director of Homes
Assured Corporation plc ("HAC"). In 1989 he resigned this
directorship, on 29 August 1989 HAC ceased to trade and on
30 August 1989 HAC went into voluntary liquidation.
7. In September 1989 the Department of Trade and Industry ("DTI")
referred the case to the Serious Fraud Office. Criminal
investigations were commenced by that office and the police, which
investigations continued up to the relevant criminal trial itself.
8. On 25 October 1989 HAC and two subsidiary companies were
compulsorily wound up and the Official Receiver (who is an officer of
the court) was appointed liquidator.
9. On 4 January 1990 and 20 July 1990 the applicant was
interviewed, in the presence of his solicitor, by a senior examiner
of the Official Receiver's Office. The Official Receiver's draft
report was worked on by the deputy Official Receiver and three
members of staff full time from October 1990 to January 1991 and by
one person from January 1991 until it was delivered, together with
36 files of supporting documents, to the Treasury Solicitor (who
provides legal assistance and advice to, inter alia, the Official
Receiver) on 27 March 1991.
10. In April 1991, three ex-directors of the HAC group were charged
with criminal offences including fraudulent trading. Counsel were
instructed to advise the Treasury Solicitor on 31 July 1991. On
1 August 1991 the Secretary of State decided to issue summonses
against seven ex-directors of the HAC group, including the applicant,
for orders pursuant to the Company Directors Disqualification Act
1986 ("CDDA") to disqualify them from acting as directors for a
potential period of fifteen years. On 7 August 1991 the Official
Receiver gave statutory notice to each of the seven intended
respondents of the Official Receiver's intention to apply for
disqualification orders.
11. Counsel and the Treasury Solicitor spent August 1991 working the
Official Receiver's draft report into a form of report which could be
filed in court. During August 1991 the applicant was specifically
invited to make, and made, representations as to why it would not be
expedient in the public interest for a disqualification order to be
made against him. During this time he requested, but was refused,
particulars of the complaints against him and a meeting with the
Official Receiver.
12. On 21 August 1991, the applicant resigned as Chairman of
Lonhro plc. The applicant felt that his resignation would be in the
best interests of the shareholders of Lonhro plc in view of the
intended prosecution which put in question his competence as a
director.
13. On 28 August 1991 the Official Receiver signed his report and
then issued three disqualification summonses against the applicant
and six others (three of whom were already defendants in the criminal
proceedings). The summonses were issued just within the two-year
limitation period set down by the CDDA. (The applicant's
co-respondents are hereinafter individually referred to as RI, R3,
R4, R5, R6 and R7).
14. In September 1991 the Official Receiver's report was served on
the applicant and his co-respondents. The report so filed is 147
pages long and the supporting evidence was reduced to nine lever arch
files, which evidence was collated from 780 boxes of documentation.
The events in relation to the HAC group, to which this report
related, allegedly took place between November 1988 and August 1989.
All respondents were requested to file their responses by way of
affidavits in reply.
15. In early November 1991 R1 and R5 applied for a stay of all civil
proceedings pending the outcome of the criminal proceedings (against
R1, R4 and R5).
16. In the course of the civil proceedings there were eight
directions hearings before the Registrar of the High Court, four
before a single judge of that court and a hearing before the Clerk of
the Lists to fix a trial date. The applicant was neither present nor
represented at any of those hearings apart from the first. He was
kept informed by the Treasury Solicitor by letter, of forthcoming
directions hearings and of the various applications which were to be
made. Those occasions where the applicant communicated his views to
the Treasury Solicitor as regards such applications are noted below.
17. On 14 November 1991 (first directions hearing) the Registrar of
the High Court consolidated the three summonses and refused the
application for a stay of all civil proceedings pending the outcome
of the criminal proceedings. However, he ordered that the trial in
the civil proceedings would not take place until after the criminal
trial and that the respondents had until 14 May 1992 to file
affidavits in reply. The applicant's counsel did not actively resist
or support the application of R1 and R5.
18. On 14 May 1992 the applicant's solicitor served notice that the
applicant was no longer represented.
19. The Official Receiver subsequently received requests from the
applicant, R1 and R5 for an extension of time for delivery of
affidavits in reply. The Official Receiver indicated that he would
not oppose an order to the effect that in default of receiving the
relevant affidavits by 24 July 1992 those respondents would be
debarred from adducing further evidence in the proceedings.
20. On 4 June 1992 (second directions hearing) the Registrar
(pursuant to an application by the Official Receiver) ordered
delivery of the respondents' affidavits by 28 September 1992 and
adjourned matters to 19 October 1992. R3 was the only one to file by
the deadline fixed, though the applicant filed shortly thereafter on
15 October 1992. This was the only affidavit filed by the applicant.
21. On 19 October 1992 (third directions hearing) the Official
Receiver applied for an order requiring delivery of the respondents'
affidavits by 10 November 1992 (failing which, the respondent in
question would be barred from adducing further evidence). However,
the Registrar ordered the remaining respondents to serve the
affidavits in reply by 30 November 1992, in default of which they
would be debarred from filing any further evidence.
22. On 26 and 27 November 1992 R4 and R5 issued summonses requesting
a stay in the civil proceedings pending the outcome of the criminal
proceedings. Since most of the respondents (excluding the applicant
and R3) had not filed their replies, the Official Receiver made
another application as regards the timetable for submission of
affidavits. The applicant indicated that the timetable suggested by
the Official Receiver was not realistic.
23. On 7 December 1992 (fourth directions hearing) the Registrar
ordered R1-R7 to serve their affidavits in reply on each other and to
respond to each others' affidavits by 15 February 1993. The summonses
issued by R4 and R5 were adjourned to a judge and the matter stood
adjourned until 22 February 1993.
24. On 11 December 1992 R5 appealed the Registrar's decision of
7 December 1992. Subsequently, R1 also appealed.
25. Since certain respondents had not complied with the order of
7 December 1992, the Official Receiver applied for further directions
extending the time limit for filing affidavits to 1 March 1993.
26. On 22 February 1993 (fifth directions hearing) the Registrar
adjourned the various outstanding applications, including those
summonses issued in November 1992 by R4 and R5, to a judge of the
High Court.
27. On 2 April 1993 a single judge of the High Court allowed R1 an
extension until after the conclusion of his criminal trial to file
his affidavit in reply to that of the Official Receiver. His co-
respondents were also given until after the conclusion of the
criminal trial to file further evidence in response to a specific
matter of evidence. R5 was to file his affidavit in response to his
co-respondents' affidavits by 30 April 1993.
28. On 19 April 1993 the criminal trial of the R1, R4 and R5
commenced. On 27 August 1993 R1 and R5 were convicted. The jury was
unable to reach a verdict in relation to R4 and he was formally
acquitted. (In all there were over 2000 pages of witness statements
and over 9000 pages of exhibits. 303 witness statements were served
and approximately 50 witnesses were called to give oral evidence. The
applicant was not called to give evidence).
29. On 3 September 1993 the applicant requested a copy of the
transcript of the criminal trial from the Treasury Solicitor as he
required a copy in order to conduct his defence to the
disqualification proceedings. On 21 September 1993 R1 and R5 appealed
to the Court of Appeal against their conviction. On 1 October 1993 R1
and R5 were sentenced to terms of imprisonment and were disqualified
from acting as directors for ten years.
30. The relevant co-respondents of the applicant (excluding R1 and
R3) delivered their affidavits in reply to the Official Receiver by
December 1993.
31. On 7 February 1994 (sixth directions hearing) the Registrar
ordered that the Official Receiver file his affidavit, in response to
the respondents' affidavits in reply, by 17 May 1994 and the matter
was adjourned until 13 June 1994.
32. On 3 March 1994 the applicant was offered the opportunity to
examine relevant extracts from the transcripts of the criminal
proceedings in the Treasury Solicitor's office. (The applicant
attended at the relevant office during four days in January 1996.)
33. On 23-27 May 1994 the Court of Appeal heard the appeals of R1
and R5 in the criminal proceedings but ordered another appeal
hearing.
34. On 13 June 1994 (seventh directions hearing) the Registrar
agreed to the Official Receiver's request for an extension of time
until 20 June 1994 for the delivery of the Official Receiver's
affidavit in reply and adjourned the matter until 11 July 1994. The
applicant indicated to the Treasury Solicitor that he had been placed
in such a position of intolerable jeopardy due to delay that a few
more days was of little import. The Official Receiver's affidavit was
served on 23 June 1994.
35. On 11 July 1994 (eighth directions hearing) it was ordered that
R1 should file his evidence by 8 August 1994 (in default of which he
would be debarred from filing further evidence), that the remaining
respondents could file affidavits in response to R1 by
19 September 1994 and that the Official Receiver was to file evidence
in response to all of those affidavits by 31 October 1994. The matter
was adjourned to a judge for trial at a time to be fixed.
36. On 1 August 1994 the appeal in the criminal proceedings
recommenced and on 5 August 1994 the Court of Appeal dismissed R1's
appeal and allowed, in part, R5's appeal. The disqualification orders
remained against R1 and R5.
37. On 8 August 1994 R1 filed his affidavit in response to that of
the Official Receiver.
38. On 12 October 1994 the Clerk of the Lists fixed the trial date
in the civil proceedings for 11 January 1996 on the basis that the
trial was scheduled to last eight to ten weeks. The applicant had
indicated to the Treasury Solicitor that he was anxious that the
trial proceed as quickly as possible so that he could have an
opportunity to clear his name. At the same time, the applicant
expressed his sympathy for those co-respondents who had had to endure
civil and criminal proceedings at the same time.
39. On 1 March 1995 R1 and R5's application in the criminal
proceedings for leave to appeal to the House of Lords was refused.
40. From August 1991 the applicant's legal representatives (and
after May 1992, the applicant) corresponded with the Treasury
Solicitor challenging the issuance of proceedings which it was
claimed had, by their very nature, a detrimental effect on the
applicant's livelihood without the applicant having an opportunity to
refute the allegations. He also requested, inter alia, that the civil
proceedings against him be abandoned on a number of grounds including
delay and the applicant's age and ill-health or, in the alternative,
that the civil proceedings be expedited so that the applicant could
clear his name in the near future in order to limit the effect on him
and his wife of the ongoing uncertainty. Having considered the
matters raised by the applicant on a number of occasions the Official
Receiver and the Treasury Solicitor considered it expedient in the
public interest to continue with the proceedings against the
applicant.
41. The applicant's doctor had advised in reports dated
15 August 1991, 22 August 1991 and 2 February 1994 that the
proceedings against the applicant would be detrimental to his health
and these reports were sent to the Treasury Solicitor. In
November 1994 the Treasury Solicitor himself obtained a medical
report on the applicant which report largely agreed with the
applicant's doctor's conclusions, diagnosed, inter alia, clinical
depression, short-term memory defects and cardiac problems and
concluded that the applicant's health would be seriously affected by
the strain of a prolonged hearing. This report also concluded that
the applicant was unfit to pursue an active business career.
42. On 22 January 1996 the High Court made an order, based on the
consent of the parties, that the proceedings against the applicant be
stayed on the basis of his undertaking not to act as a director of a
company in the future without the leave of the court. The court noted
that it had taken into account the health hazards and difficulties of
a long trial for the applicant and the fact that four and half years
had passed since the proceedings were begun. The court stated that it
was in no way satisfied that the delay had been to any material
extent the fault of the Official Receiver (or his legal team) or of
the Secretary of State.
43. Furthermore, on 12 March 1993 the applicant was adjudicated
bankrupt pursuant to his then solicitor's petition on the basis of
unpaid legal fees. The applicant's bankruptcy was discharged in
December 1996. As a bankrupt the applicant was automatically
disqualified from acting as a director unless he obtained the consent
of the court under section 11 of the CDDA.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
44. The Commission has declared admissible the applicant's complaint
that his case was not heard within a reasonable time.
B. Point at issue
45. The only point at issue is whether the length of the proceedings
complained of exceeded the "reasonable time" requirement referred to
in Article 6 para. 1 (Art. 6-1) of the Convention.
C. As regards Article 6 para. 1 (Art. 6-1) of the Convention
46. The relevant part of Article 6 para. 1 (Art. 6-1) of the
Convention provides as follows :
"In the determination of his civil rights and obligations
..., everyone is entitled to a ... hearing within a
reasonable time by (a) ... tribunal ..."
47. The proceedings in question concerned summonses issued under
section 6 of the Company Directors Disqualification Act 1986 by the
Official Receiver against, inter alia, the applicant. The Commission
notes that the purpose of the proceedings was to obtain an order of
the court to disqualify the applicant from acting as a director for
a potential period of 15 years. The Commission considers that the
proceedings constituted a dispute over "civil rights and obligations"
(see, for example, No. 11282/84, Dec. 12.11.87, D.R. 54, p. 70) and,
accordingly, that the proceedings fall within the scope of Article 6
para. 1 (Art. 6-1) of the Convention.
48. Although the applicant was notified on 7 August 1991 that the
proceedings would issue against him, the Commission considers that
for the purposes of this application the proceedings began on
28 August 1991 when those proceedings in fact issued. (The Commission
has considered certain matters relating to the period prior to the
issuance of proceedings at paragraph 59 below). It also considers
that the proceedings terminated on 22 January 1996 when the High
Court ordered a stay of proceedings, with the consent of the parties,
the aim and effect of the order being to bring to an end the
proceedings against the applicant. Accordingly, the proceedings at
issue lasted 4 years, 4 months and 26 days.
49. The Commission recalls that the reasonableness of the length of
proceedings must be assessed with reference to the established
criteria namely, the complexity of the case, the conduct of the
parties and the conduct of the authorities dealing with the case and
in light of the particular circumstances of the case (Eur. Court HR,
Vernillo v. France judgment of 20 February 1991, Series A no. 198,
p. 12, para. 30).
50. According to the Government, the length of the period in
question is due to the complexity of the case, to delay on the part
of the applicant and to delay on the part of his co-respondents. The
applicant takes issue with these submissions.
51. The Commission accepts that the case was substantively and
procedurally complex.
52. As to the periods of delay attributed to the applicant and his
co-respondents, the Commission notes that the applicant is not
responsible for delays resulting from applications for extensions,
adjournments and consolidation made by others (mutatis mutandis, Eur.
Court HR, Capuano v. Italy judgment of 25 June 1987, Series A
no. 119, p. 13, para. 28) and that, even if a system leaves the
initiative for making applications (in this case for an early and
separate trial) to the parties, this does not exempt the courts from
ensuring that the reasonable time requirement of Article 6 (Art. 6)
of the Convention is complied with (Eur. Court HR, Capuano v. Italy
judgment, loc. cit., pp. 13-14, para. 31). Delays on the part of the
applicant's co-respondents in filing documents can similarly not be
attributed to the applicant.
53. The Commission notes that, although the Official Receiver's
report was served in September 1991, the applicant did not file an
affidavit in response until over a year later, on 15 October 1992.
However, the Commission also notes that the applicant was not
represented after May 1992 and that the report of the Official
Receiver, to which he had to respond, was complex and voluminous.
Further, despite these facts the applicant was one of the first
respondents to serve his affidavit and he did so within approximately
three weeks of the extended time-limit fixed by the Registrar for
that purpose. In any event, by October 1992 most of the applicant's
co-respondents had yet to file their affidavits and the case could
not proceed to the next stage until they had done so or been
disbarred from so filing. It is true that, subsequently, the
applicant did not file a reply to his co-respondents' affidavits (the
latter having all been filed by December 1993). However, there is no
evidence that the Official Receiver took any positive steps either to
obtain this evidence from the applicant or to disbar him from
submitting any such evidence or that this, in any event, delayed the
proceedings in any practical respect.
54. Accordingly, the Commission does not consider that the conduct
of the applicant is, in itself, sufficient to explain the length of
the proceedings.
55. As to the conduct of the competent authorities, the Commission
notes, in particular, that the decision to fix the trial date was not
taken until 12 October 1994 (approximately 14 months after the
conviction on criminal charges of certain of the applicant's co-
respondents).
56. On 12 October 1994 the Clerk of Lists fixed a trial date of
11 January 1996, which trial date was some 28 months after the
criminal trial had concluded, 17 months after the dismissal by the
Court of Appeal of the appeals in the criminal proceedings and
10 months after the refusal of leave to appeal to the House of Lords.
The justification offered by the Government for this delay is the
availability of court dates and of counsel bearing in mind the
probable length and extent of the trial. However, the Court has
consistently emphasised that it is up to States to organise their
legal systems in such a manner as to meet the requirements of
Article 6 para. 1 (Art. 6-1) of the Convention (cf., for example,
Eur. Court HR, Ruotolo v. Italy judgment of 27 February 1992, Series
A no. 230-D, p. 40, para. 17). Accordingly, the Commission considers
that no convincing explanation for this delay has been advanced by
the respondent Government.
57. The Commission also considers that the present case calls for
an overall assessment of the reasonableness of the length of the
proceedings. It is of the opinion that the most significant factors
in the length of the proceedings against the applicant were the
number of respondents in the civil proceedings (all former directors
of the HAC group), the fact that the proceedings related to three
companies in the HAC group and the fact that three of the respondents
were defendants in parallel criminal proceedings which latter fact
led to the decisions to adjourn the trial in the civil proceedings
(14 November 1991) and, subsequently, to extend the period for the
delivery of certain pleadings (2 April 1993) pending the conclusion
of the criminal proceedings.
58. The Commission observes that the disqualification proceedings
against the applicant might have been expedited if the Official
Receiver had proceeded separately against the various respondents or
if separate proceedings had been brought against those four
respondents who were also defendants in the criminal proceedings.
However, the Commission accepts that such an approach was not a
practical option having regard to the duplication of work which this
would have entailed and the risk of prejudice to those who were
defendants in the criminal proceedings in view of the close link
between the issues raised in the criminal and disqualification
proceedings. For the same reason, the Commission accepts that it was
probably neither feasible nor consistent with the proper
administration of justice for the hearing of the disqualification
proceedings to have taken place before the criminal proceedings
concluded. The decisions of the Registrar and the Judge on
14 November 1991 and 2 April 1993, respectively are, accordingly,
justifiable in such circumstances.
59. Nevertheless, the consequences of joining all of the respondents
in the same proceedings and of adjourning the trial until the
criminal proceedings had been finally determined was that the
proceeding against the applicant were pending for over four years and
four months. Moreover, by the time the proceedings were stayed in
January 1996, approximately seven years had elapsed from the date of
the events giving rise to the proceedings against the applicant,
during which period almost the entire of the applicable two year
limitation period had passed before the Official Receiver issued the
relevant summonses.
60. The Commission further observes that, although the existence of
the parallel criminal proceedings contributed significantly to the
delay in the disqualification proceedings, the applicant was at no
stage a party to those proceedings; he was not charged with any
criminal offence in relation to the activities of the HAC group, he
was not at any stage interviewed by the Serious Fraud Office and he
was not called as a witness in the criminal proceedings.
61. Moreover, the Commission has no reason to doubt that the
existence of disqualification proceedings against the applicant,
whose profession was that of company director, would have had a
considerable impact on the applicant's reputation and on his ability
to practise his profession while the proceedings were pending.
Accordingly, the Commission considers that special diligence and
expedition were called for in the circumstances of the present case
(mutatis mutandis, Eur. Court HR, Ruotolo v. Italy judgment, loc.
cit., p. 39, para. 17).
62. In the light of the criteria established by case-law and having
regard to the overall circumstances of the present case, the
Commission considers that the length of the proceedings was excessive
and failed to meet the "reasonable time" requirement contained in
Article 6 para. 1 (Art. 6-1) of the Convention.
CONCLUSION
63. The Commission concludes, by 13 votes to 1, that there has been
a violation of Article 6 para. 1 (Art. 6-1) of the Convention.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy