AS TO THE ADMISSIBILITY OF
Application No. 26665/95
by Diana and Alistair KELMAN
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 15 May 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 2 November 1994
by Diana and Alistair Kelman against the United Kingdom and registered
on 8 March 1995 under file No. 26665/95;
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 facts of the case, as submitted by the applicants, may be
summarised as follows.
The applicants, United Kingdom nationals, are spouses residing
in London. The first applicant was born in 1950 and is a computer
consultant. The second applicant was born in 1952. He is a barrister
and also represents his wife before the Commission.
The applicants had a joint account and several other business and
personal accounts with TSB Bank plc ("TSB"). Between 1985 and 1989
they obtained several loans from TSB, drawn for business purposes and
for improvements in their house. These included a £ 35,000 loan
secured by a mortgage on their house, a £ 135,000 loan for the purchase
of real property and the cost of its conversion, secured by a mortgage
on their first house and on the newly purchased house, and further
loans totalling £ 73,000 for upgrading the quality of the
reconstruction works and covering outstanding legacies from the second
applicant's inherited estate.
In 1990, due to unfavourable market tendencies, the applicants
began to experience financial difficulties. In February the second
applicant had to borrow an additional £ 20,000 on his credit cards and
to sell his car in order to meet payments due on the reconstruction
works undertaken in the newly purchased real property.
Throughout the relevant period the applicants regularly received
from TSB bank statements concerning all their accounts and loans.
In 1992 the applicants decided to review the management of the accounts
and discovered discrepancies and errors. They sought more information
from TSB, but this was refused.
On 23 March 1992 TSB demanded the immediate repayment of
£ 133,570.53. The applicants questioned the accuracy of the bank
statements and the exact amounts due and sought further information.
In November 1992 TSB instituted proceedings against the
applicants seeking the possession of the mortgaged properties. The
applicants submitted a counterclaim for damages asserting that TSB had
provided to them wrongful information and had refused to provide other
information as regards certain bank statements.
On 23 May 1994 TSB obtained a judicial order for possession of
the mortgaged properties. The applicants submitted an appeal to the
High Court. They claimed that TSB should not be granted possession of
the properties until the disputes regarding the inaccuracies in certain
bank statements were determined in ordinary judicial proceedings.
Alternatively, they relied on a statutory provision which allowed the
Court to postpone delivery of the possession if the debtor convinced
the Court that he would pay the debt within a reasonable time.
On 8 July 1994 the High Court delivered its judgment. The Court
found that as long as it had been undisputed that the applicants owed
a significant amount of money, TSB was entitled to the possession of
the property. Also, a counterclaim could not be a defence against the
mortgagee's action for possession. The Court then adjourned the matter
to enable the applicants to produce evidence that they would be able
to repay the sums claimed within four months.
The applicants repaid the amounts claimed by TSB. This was done
apparently without prejudice to the dispute as regards the exact amount
due. The applicants have not indicated whether they ultimately pursued
their claims for damages and inaccurate accounting.
COMPLAINTS
The applicants complain that the rule, whereby a mortgagee is
entitled to immediate possession of the mortgaged property regardless
of existing disputes as to the exact amount of the loan secured on it,
is contrary to Article 8 of the Convention where, as in their case, the
mortgaged property is the debtor's home. Article 8 should be
interpreted, in their view, as requiring adjudication by normal trial
proceedings of any such disputes before a mortgagee is granted the
possession of the debtor's home.
The applicants assert that in their case they had no choice but
to repay the amount claimed by the bank as they risked losing their
home. They invoke Article 1 of Protocol No. 1 to the Convention.
THE LAW
The applicants complain, under Articles 8 and Article 1 of
Protocol No. 1 (Art. 8, P1-1) to the Convention, that they risked
losing their mortgaged home without prior determination, through
ordinary civil proceedings, of the dispute concerning the exact amount
due and that as a result they had to pay on the creditor's terms.
However, the Commission need not decide whether the facts
complained of fall within the scope of Article 8 or Article 1 of
Protocol No. 1 (Art. 8, P1-1) to the Convention and if so, whether the
applicants have exhausted all domestic remedies within the meaning of
Article 26 (Art. 26) of the Convention, as the application is in any
event manifestly ill-founded for the following reasons.
The Commission recalls its case-law according to which it follows
from Article 25 (Art. 25) of the Convention that an individual cannot
complain against a law in abstracto (Appl. No.8307/78, Dec. 11.7.80,
D.R. 21, p. 116).
The Commission notes that the applicant's home was never
repossessed by their creditor. Therefore, they cannot claim to be the
victim of a breach of their rights in this respect.
Insofar as the applicants complain that they were forced to
accept the repayment of the amount claimed by the bank, the Commission
notes that the applicants can receive back any overpaid amounts by
seising the courts with their claims concerning the alleged accounting
errors and ensuing damages.
It follows that the application is manifestly ill-founded and has
to be rejected under 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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