AS TO THE ADMISSIBILITY OF
Application No. 26374/95
by Harry JOHNSTON and Brian WARD
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 12 April 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 21 November 1994
by Harry JOHNSTON and Brian WARD against the United Kingdom and
registered on 1 February 1995 under file No. 26374/95;
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 applicants are British citizens born in 1947 and 1944
respectively. They are building contractors and live in Manchester.
They are represented before the Commission by Mr. P. Wainwright,
solicitor, of Messrs. Graham, Leigh, Pfeffer & Co, Manchester. The
facts of the case, as submitted by the applicants' representative, may
be summarised as follows.
The particular circumstances of the case
In 1990 the applicants were sued in the Salford County Court on
a contract which they had entered into in 1985 with a doctor. The
contract related to the sale of a piece of land next to the doctor's
surgery and included provision for the land to be flattened and
cleared. Judge Bernstein gave judgment on 2 October 1992. She found
that the applicants had failed to fulfil their part of the contract,
and awarded the plaintiff £2,000.00 by way of damages for the work he
had had to have done himself - half of the amount he had claimed.
The applicants state that they had been trying to establish
before the trial whether the plaintiff had instructed a quantity
surveyor in 1985, as, if he had, he would have known about the state
of the site at the time. It was only after the plaintiff had claimed
at the trial that a quantity surveyor had not been involved, that an
architect (who had been involved) offered to contact the quantity
surveyor. The quantity surveyor had evidence which contradicted the
plaintiff's case and supported the applicants' case. He also had
photographs and documents relating to his initial survey in 1985.
On 3 December 1992 the applicants applied for a re-trial under
Order 37 rule 1 of the County Court Rules. On 10 December 1992 the
judge - the original trial judge - granted leave to have the matter re-
heard. The plaintiff applied for leave to appeal against that order.
On 19 May 1993 Lord Justice Kennedy rejected the application on the
ground that the judge had correctly applied the principles governing
applications which are laid down in Ladd v. Marshall [1954] 3 All ER
745. The plaintiff further applied to the Court of Appeal for leave
to appeal. Lord Justice Staughton granted leave to appeal on 21 July
1993, and on 11 January 1994 the Court of Appeal allowed the
plaintiff's appeal. Lord Justice Glidewell set out the history of the
dispute, and noted that there had been a complete conflict of evidence
before the first instance judge, and that she had preferred the
evidence of the plaintiff. He also noted that she had not accepted the
amount of damages claimed, and had reduced it from £4,000.00 to
£2,000.00 plus interest. He further noted that in hearing the
application for a re-trial, the judge had directed herself in
accordance with the principles in the County Court Practice and the
principles in Ladd v. Marshall.
Lord Justice Glidewell considered that of particular importance
was what evidence could properly have been obtained on behalf of the
applicants for the trial. He considered that the quantity surveyor
could have been required to attend, and that the applicants' solicitor
could have consulted with him. He concluded:
"For my part, I take the view that the judge was wrong to
conclude that the evidence of [the quantity surveyor], including
the documents he now produces, could not have been obtained with
reasonable diligence for use at the trial. I think with
reasonable diligence they could have been obtained and they
should have been obtained."
In allowing the plaintiff's appeal, Lord Justice Glidewell added
that although the evidence submitted could indicate that the value of
work omitted by the applicants did not exceed £750.00, that was of
limited relevance as it could only affect the quantum of damages, and
the application had been for a re-trial, not a re-trial on damages
only.
The House of Lords refused the applicants leave to appeal to it
on 23 May 1994.
Relevant domestic law
The County Court Practice at the relevant time provided that:
"In special and exceptional circumstances a new trial may be
granted because new evidence has been discovered, but it is
essential that as a preliminary step a party asking for a new
trial on this ground should show that there was no remissness on
his part in adducing all possible evidence at the trial."
In Ladd v. Marshall ([1954] 3 All ER 745) Lord Denning M.R. held:
"In order to justify the reception of fresh evidence or a new
trial, three conditions must be fulfilled: first, it must be
shown that the evidence could not have been obtained with
reasonable diligence for use at the trial: second, the evidence
must be such that, if given, it would probably have an important
influence on the result of the case, although it need not be
decisive: third, the evidence must be such as presumably to be
believed, or in other words, it must be apparently credible,
although it need not be incontrovertible."
Lord Justice Hodson, in the same case, considered the discretion
to re-hear a matter (under the Rules of the Supreme Court, which apply
in the High Court), and noted that "[t]hat discretion has been always
exercised in the light of the maxim interest reipublicae ut sit finis
litium".
COMPLAINTS
The applicants allege a violation of Articles 6 and 13 of the
Convention. They consider that the right to a fair hearing must
include the right to a new hearing where the first hearing was unfair,
and that a hearing is unfair if it proceeds in the absence of relevant
evidence.
The applicants consider that the "reasonable diligence" test in
Ladd v. Marshall places a disproportionately severe limitation on a
party's opportunity to present his case fully, and that even if the
test as such is compatible with the Convention, the Court of Appeal in
the present case infringed the Convention by forming the incorrect view
that the applicants failed to use reasonable diligence. In particular,
the applicants claim that the Court of Appeal overstepped its
jurisdiction in domestic law, and that they did in fact exercise
reasonable diligence.
The applicants underline that the trial judge - who was best
placed to decide whether there should be a re-trial - granted the
application.
It is contended that the refusal of leave to appeal to the House
of Lords violated Article 13 of the Convention.
THE LAW
The applicants allege a violation of Articles 6 and 13
(Art. 6, 13) of the Convention. Article 6 (Art. 6) of the Convention
provides, so far as relevant, as follows.
"1. In the determination of his civil rights and obligations
..., everyone is entitled to a fair and public hearing ..."
The Commission recalls its case-law that Article 6 para. 1
(Art. 6-1) of the Convention does not apply to proceedings concerning
an application for a review of civil proceedings (Nos. 13601/88 &
13602/88, Dec. 6.7.89, D.R. 62, p. 284, with further references). The
position will, however, be different where an application for a re-
trial is granted, since those (re-opened) proceedings do determine
civil rights or a criminal charge, as the case may be (in the context
of a criminal case which was referred to the Court of Appeal by the
Home Secretary, see Eur. Court H.R., Edwards judgment of 16 December
1992, Series A no. 247).
In the present case, the Court of Appeal eventually decided that
there should not be a re-trial of the case, and so the guarantees of
Article 6 (Art. 6) do not apply to the proceedings which began with the
applicants' application of 2 December 1992 and ended with the House of
Lords refusal of leave to appeal of 23 May 1994. The decision of Judge
Bernstein never became final because the plaintiff appealed against it,
and so the applicants cannot rely on it.
The applicants claim that Article 6 (Art. 6) itself guaranteed
a right to a re-trial in the circumstances of the present case.
The Commission here recalls that Article 6 (Art. 6) does not
guarantee a right to an appeal, although Article 6 will apply to any
appeal which is provided (see, for example, No. 16598/90, Dec.
16.12.90, D.R. 66 pp. 260, 263 with further references). The same
applies to re-trials: the Convention does not guarantee a right to a
re-trial, although if one is granted, the guarantees of Article 6
(Art. 6) will apply as they did at the first trial (see above).
To the extent that the applicants allege that the first instance
trial was not fair, the Commission notes that they make no allegations
of unfairness other than the question of the new evidence they wished
to bring. In any event, they did not appeal the decision of
2 October 1992.
As to Article 13 (Art. 13) of the Convention, the Commission
recalls that in connection with similar arguments to those under
Article 6 (Art. 6) of the Convention, the requirements of Article 13
are less strict than, and may well be absorbed by, those of Article 6
(Art. 6) (Eur. Court H.R., Kamasinski judgment of 19 December 1989,
Series A no. 168, p. 45, para. 110). In any event, Article 13
(Art. 13) cannot afford a right of appeal to a superior court (No.
13135/87, Dec. 4.7.88, D.R. 56, pp. 268, 274).
It follows that the application is 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.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
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