AS TO THE ADMISSIBILITY OF
Application No. 16309/90
by Alan Albert GARNHAM
against the United Kingdom
The European Commission of Human Rights sitting in private
on 17 October 1991, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
B. MARXER
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
15 September 1989 by Alan Albert Garnham against the United Kingdom
and registered on 6 March 1990 under file No. 16309/90;
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 1925 and resident
in Hassocks. The facts as submitted by the applicant may be
summarised as follows.
On 17 January 1979, a Receiving Order was made against
the applicant and on 12 February 1979 he was adjudged bankrupt.
On 25 January 1979, the Official Receiver's examiner took possession
of 40 files containing the applicant's books and papers, including
some personal papers.
On 8 March 1979, a trustee in bankruptcy was appointed who
took possession of the files, which had become his property under the
provisions of the Bankruptcy Act 1914.
On 27 April 1979, the Court ordered that the applicant be
discharged from bankruptcy automatically on 12 February 1984, the
fifth anniversary of his being adjudicated bankrupt in accordance with
section 7 of the Insolvency Act 1976.
During the course of his administration, the trustee realised
sufficient funds to pay all the applicant's debts and liabilities in
full. On 21 October 1982, the trustee informed the applicant of his
intention to apply to the Department of Trade to be released. The
applicant objected to the trustee's release by letter dated 3 January
1983 in which he also complained that his voluminous files were being
"literally kicked around in the Trustee's Office" and requested that
they be given proper storage protection.
By letter dated 12 January 1983, the Department of Trade
informed the applicant that it saw no grounds justifying withdrawal of
the trustee's release and that if the applicant obtained rescission
and annulment he could become entitled to the return of his books and
papers. On 7 April 1983, the Department of Trade proceeded to grant
the trustee's release.
On 13 April 1983, the trustee returned the applicant's files
to the Official Receiver.
On 10 June 1983, the Official Receiver wrote to the applicant
pointing out that the applicant could now apply to the Court for an
order rescinding the Receiving Order. On 28 September 1983, the
applicant replied that he did not intend to do so in protest against
long-term unemployment.
Following his automatic discharge on 12 February 1984, the
applicant applied to the Official Receiver for return of his files
which included documents from a previous employer and material which
he intended to use to write a book about his experiences of being
unemployed. By letter dated 4 February 1985, the Official Receiver
informed the applicant that his papers had been destroyed in
accordance with Rule 387 of the Bankruptcy Rules 1952.
On 7 December 1987, the applicant's complaints concerning the
destruction of his files were referred to the Parliamentary
Commissioner for Administration.
In his report dated 18 August 1989, the Parliamentary
Commissioner found that the Official Receiver, while acting under
statutory authority, could be criticised for failing to keep better
records and for failing to give guidance to bankrupts concerning the
practice with regard to the destruction of documents. Pursuant to
Rule 387, the bankrupt's documents could be destroyed if the trustee
had been released once more than two years had elapsed since the
Receiving Order and there was no prospect at that time of rescission
of the Receiving Order. The applicant had not been made aware that it
was only by applying for rescission that he could have his documents
returned. The Commissioner also found that there was no evidence that
the applicant had asked for the return of the papers or indicated that
they were of personal nature until after they had been destroyed. The
Commissioner conveyed the Official Receiver's apologies to the
applicant and stated that the Official Receiver had undertaken to
remedy the shortcomings in the procedure.
By letter dated 6 February 1990, the applicant was advised by
his solicitor that no further legal action could be taken in view of,
inter alia, the difficulty of establishing liability and of
quantifying any financial loss suffered by the applicant.
Relevant Domestic Law and Practice
At the relevant time, bankruptcy procedure was governed
principally by the Bankruptcy Act 1914 ("the 1914 Act") and the
Bankruptcy Rules ("the Rules").
Immediately on a debtor being adjudged bankrupt by the court,
his property, including books and papers, vested in the trustee in
bankruptcy (section 53 of the 1914 Act).
The main duties of the trustee in bankruptcy were to take
or reduce into possession the bankrupt's property, including his
deeds, books and documents (section 48 of the 1914 Act) and to declare
and distribute dividends amongst the creditors who had proved their
claims (section 62 of the 1914 Act).
Under section 93 of the 1914 Act, the trustee could apply to
the Department of Trade for his release when he had realised the property
of the bankrupt or such of it as could be realised without needlessly
protracting the trusteeship, and had distributed a final dividend or
had ceased to act by reason of a composition having been approved or
had resigned or had been removed from office. The Department then
had to cause a report on the trustee's accounts to be prepared, and on
the trustee complying with all requirements of the Department, had to
take into consideration the report and any objection lodged by any
creditor or person interested against the release, and then either
grant or withhold the release, subject to appeal to the court. The
effect of a release is to discharge the trustee from all liability in
relation to his conduct as trustee. Under the Rules, no release
could take effect until the trustee had delivered to the official
receiver (or new trustee, as the case might be) all the books,
papers, documents, and accounts in his possession relating to the
office of trustee (rule 343). If there was then no trustee in
relation to the bankrupt's estate, the official receiver would become
trustee by virtue of his office (sections 74 (1) (g), 78 (4) and 93
(5) of the 1914 Act).
Rule 387 of the Bankruptcy Rules provides that, on the
application of the official receiver, the debtor's books of account
and other documents may be "sold, destroyed or otherwise disposed of"
on the direction of the Department of Trade. The procedures for the
disposal of books and papers of the debtor by the official receiver
were the subject of standing instructions to official receivers issued
by the Department which were amended in October 1983. The policy of
the Department was aimed at ensuring that books and papers of debtors
were not kept longer than was necessary for the purpose of realising
the estate of the debtor and any proceedings in connection with the
bankruptcy.
Instruction 14 (issued in July 1982 and amended in October
1983) set out how the official receiver should apply to the
Department for sanction for the disposal of books and papers and
indicated the circumstances in which books and papers could or should
be returned to the bankrupt, sold, preserved or destroyed.
Prior to October 1983, Instruction 14 indicated that an
application for sanction for the disposal of the books and papers of a
debtor would not normally be granted unless:
(i) the trustee had been released; and
(ii) two years had elapsed since the receiving order was made
or the debtor had been discharged.
The Instruction was amended in October 1983 so that,
normally, applications for sanction were to be made and granted on the
release of the trustee. The official receiver was, however, expected
to be satisfied that the debtor had been discharged or that the books
and papers would be of no relevance to a discharge application or
review and that, at the time of the application, there was no
prospect of a rescission of the receiving order.
Instruction 14 (Paragraph 6) also stated that:
"Private papers which are of no marketable value and
which are not required for any purpose relative to
the proceedings may, on request, be returned to the
bankrupt."
The Department regarded papers which were not recognisably
concerned with the debtor's financial affairs as "private papers".
Even where they are not recognisably papers concerning the debtor's
financial affairs, a debtor's books and papers may be relevant to the
recovery of assets or to prosecutions in connection with the
bankruptcy proceedings. Further, they may be of marketable value
which should be realised for the benefit of creditors. If, at the
time when a debtor's books and papers were being taken into
possession by the official receiver, the debtor made it clear that
they were personal or private papers which were not in these
categories, the papers would normally either not be taken into
possession or would be returned to him after perusal. Furthermore,
where the debtor made no such representation and private papers were
taken into possession but were not of marketable value or required for
the proceedings, they could be returned to the debtor on request at
the official receiver's discretion, without the need to seek further
sanction from the Department. In practice, such requests were
generally granted. Except in the case of a rescission and annulment -
when, by virtue of annulment of the adjudication order, the property
of the bankrupt reverted to him - there was no statutory requirement
on the official receiver to return to the debtor his books and papers
(so far as not already destroyed).
COMPLAINTS
The applicant complains of the destruction of his papers and
correspondence and invokes Article 8 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The applicant first wrote to the Commission on 28 May 1985.
He wrote again on 15 September 1989 and the application was registered
on 6 March 1990.
On 13 July 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 20 February
1991 after three extensions in the time-limit and the applicant's
observations in reply were submitted on 30 March 1991 and 8 July 1991.
On 8 March 1991 the Commission decided to grant legal aid to
the applicant.
On 10 March 1991 the Commission examined the admissibility of
the application.
THE LAW
The applicant complains of the destruction of his papers
by the Official Receiver.
The Government have submitted that the application should be
rejected as having been introduced outside the six month time limit
imposed by Article 26 (Art. 26) of the Convention. The Commission
recalls that the applicant first wrote to the Commission on 28 May
1985. He did not write again however until 15 September 1989, after
which he completed an application form and the application was
registered. There was accordingly a gap of over four years in the
applicant's correspondence.
The Commission has therefore examined the question of the date
of introduction of the present application.
In accordance with its established practice, the Commission
considers the date of the introduction of an application to be the
date of the first letter indicating an intention to lodge an
application and giving some indication of the nature of the complaint.
However, where a substantial interval follows before an applicant
submits further information as to his proposed application, the
Commission examines the particular circumstances of the case in order
to decide what date shall be regarded as the date of introduction with
a view to calculating the running of the six-month period set out in
Article 26 (Art. 26) of the Convention (see e.g. No. 4429/70, Dec.
1.2.71, Collection 37 p. 109).
The Commission has regard in this context to the purpose of the
six-month rule which is to promote security of the law, to ensure that
cases raising issues under the Convention are dealt with within a
reasonable time and to protect the authorities and other persons
concerned from being under uncertainty for a prolonged period of time.
The Commission's case-law also establishes that it would be
contrary to the spirit and the aim of the six-month rule set out in
Article 26 (Art. 26) if, by any initial communication, an applicant
could set into motion the proceedings under the Convention and then
remain inactive for an unexplained and unlimited length of time (see
e.g. No. 10626/83, Dec. 7.5.85, D.R. 42 p. 205). The Commission has
constantly rejected applications where an applicant submitted an
application more than six months after the date of the final decision
when there were no special circumstances suspending the running of
this period. The Commission finds that it would be inconsistent with
the aim and purpose of the six-month rule to deviate from this rule in
a situation where an application has been introduced under Article 25
(Art. 25) of the Convention within six months from the final decision
or act complained of but thereafter not pursued.
In the present case, the Commission recalls that more than four
years passed before the applicant resumed correspondence with the
Commission. Part of that period was spent by the applicant in pursuing
a complaint before the Parliamentary Commissioner for Administration.
The Commission recalls however that its case-law establishes that a
complaint to the Parliamentary Commissioner for Administration is
generally not an effective remedy for the purposes of Article 26
(Art. 26) of the Convention (see e.g. Silver and Others v. the United
Kingdom, Comm. Report 11.10 80, paras. 447-448, Eur. Court H.R.,
Series B no. 51, p.103 ). Further, it appears that the applicant
delayed for over two years before submitting his complaint to the
Parliamentary Commissioner for Administration, a delay for which he
has given no explanation.
In light of these circumstances, notwithstanding the
applicant's initial letter of 28 May 1985, the Commission considers
the date of introduction of the application to be 15 September 1989.
Since the applicant was informed of the destruction of his documents
by letter of 4 February 1985, it follows that the application has been
introduced out of time and must be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)
Full & Egal Universal Law Academy