FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Applications nos. 75341/01, 71293/01 and 44332/02
by Chung Tak LAM and Others
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 8 July 2003 as a Chamber composed of
MrM. Pellonpää, President,
SirNicolas Bratza,
MrsV. Strážnická,
MrR. Maruste,
MrS. Pavlovschi,
MrL. Garlicki,
MrJ. Borrego Borrego, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above applications lodged on 6 August 2001, 21 July 2001 and 28 November 2002;
Having regard to the applicants’ supplementary submissions filed up until 25 April 2003 in respect of, in particular, application no. 75341/01;
Having deliberated, decides as follows:
Application no. 75341/01
THE FACTS
The first applicant is a British national, born in 1949 and living in Southport, England. The second applicant, also a British national, is his wife, born in 1950. The third and fourth applicants are their children, born respectively in 1974 and 1976. The applicants were represented in the initial stages of the application by the first applicant and then by Dr K.S. Badsha, a legal consultant with the Environmental Law Centre, Southport, England.
The facts of the case may be summarised as follows.
The first applicant was the owner of a Chinese restaurant situated in a designated conservation area in the centre of Paignton. The applicant and his family lived on the premises. In 1989 the applicants had to abandon their restaurant and their home above it on account of the emission of toxic cellulose paint spray fumes from a warehouse (unit 2) used by a company (“Namesakes”) owned by a Mr Brennan. The company was engaged in the manufacture of wooden toys. In addition to the financial loss they suffered as a result of the closure of their business, the applicants’ health (as well as that of others living in the locality) was also badly affected by the toxic emissions.
A complaint was first made to Torbay Borough Council (“the Council”) in 1989. Subsequent complaints followed. Although the Council served a prohibition notice and an abatement notice on the company between October 1990 and December 1991, it would appear that no steps were taken to enforce these notices. In December 1992 the company relocated its activities and the applicants returned to their premises in 1993.
The applicants insist that the paint spraying operation was illegal and that the Council has tried to conceal the illegality by purporting there to be planning permission for the activity operating out of unit 2. They maintain, inter alia, that local authority officers have manipulated the planning record and have sought to mislead the domestic courts about the true situation, at times contradicting themselves. It is their firm submission that the company’s initial planning application (no.88.1887) only related to the use of a storage building behind the premises, not to the use of the two neighbouring units (units 1 and 2). However, the cellulose paint spraying activity, with its detrimental consequences for their livelihood and health, was carried out in unit 2 and unlawfully condoned by local authority officers including by means of deceit. According to the applicants, the circumstances of the case disclose that the Council was biased towards Mr Brennan.
The applicants commenced litigation against Mr Brennan in January 1991. The applicants subsequently sued the Council, claiming damages for personal injury and damage to property. They contended that the Council acted beyond its discretion, ultra vires and abused its power by purporting there to be planning permission when, according to the Council’s own records, no planning permission had ever been granted to the building (unit 2) where the company’s operation took place. The actions against the company and the Council were consolidated.
On 24 January 1996 Mr Justice Collins, on the application of the Council, ordered that the applicants’ writ against the Council be struck out as showing no cause of action either under statute or at common law. Mr Justice Collins considered that the applicants’ primary remedy was the private law remedy for damages and/or an injunction against the company to stop the nuisance. Mr Justice Collins also referred to the range of remedies which allowed an individual to protect himself in the event of a local authority not taking action to bring an end to a nuisance, including a private law claim against the person creating the nuisance and the laying of a complaint before a Magistrates’ Court.
According to the applicants, Mr Justice Collins, without justification, diverted the basis of their claim by proceeding on the assumption that planning permission had been given in 1988 to the company to use unit 2 for its paint spraying activity.
On 30 July 1997 the Court of Appeal, dismissed the applicants’ appeal against Mr Justice Collins’ ruling. According to the applicants, the Court of Appeal accepted the false statement of the Council that planning permission was in place without requiring it to substantiate this or to have regard to their evidence disproving the Council’s assertion.
On 13 January 1998 the House of Lords refused the applicants leave to appeal.
The first applicant subsequently complained to the Council that a pottery business which had taken over occupancy of one of the units (unit 1) was emitting smells and noises and that it did not benefit from planning permission. He contended that planning permission had never been granted in respect of either unit 1 or unit 2.
At the meeting held on 10 November 1997 the Council’s planning committee (“the committee”) decided that there had been no breach of planning conditions and that no enforcement action had to be taken against the owner of the pottery business. According to the first applicant, the committee did not answer his challenge to the very existence of planning permission for the use of units 1 and 2. The first applicant insists that the committee was deliberately misinformed by its officers about the scope of the original planning application made by Mr Brennan’s company and the true state of the planning record.
The first applicant was present at part of the meeting and made representations to the committee. According to the first applicant, he only received official notification of the committee’s decision on 16 January 1998 through a Council official who had agreed to reconsider the local authority’s decision. The Council official confirmed in the letter that the premises were being used legitimately and added that any smells or fumes emanating from the premises were intermittent and did not constitute a statutory nuisance.
On 6 February 1998, fifteen days after being notified of the committee’s decision, the first applicant sought leave to apply for judicial review. He maintained, inter alia, that the Council had failed to take enforcement proceedings against the owner of the pottery business who was operating it without the necessary planning permission.
The first applicant stresses that, in the ensuing judicial review proceedings, the Council argued that planning permission had been granted to unit 1. However, this was in contradiction to the stance the Council had taken in the earlier civil proceedings in which it contended that unit 2 benefited from planning permission. The first applicant reiterates that the true position is that neither unit benefited from planning permission since the records showed that planning permission only covered a storage building at the rear of their home and restaurant. The first applicant draws attention to his view that Council officials fraudulently deleted the existence of the storage on the planning documentation which was submitted in the judicial review proceedings.
On 25 June 1998 Mr Justice Moses refused the first applicant’s request for an adjournment to enable him to put forward evidence as to why he had delayed the initiation of the leave proceedings in respect of the decision of 10 November 1997. The judge considered that the applicant had ample time to produce such evidence between the date when the Council notified him that it would oppose the application on grounds of delay and the start of the proceedings. The judge dismissed the first applicant’s application for leave to apply for judicial review.
On appeal, Lord Justice Kennedy conceded that the scope of Mr Brennan’s application for planning permission and the extent of the permission granted was not entirely clear. However, with reference to Order 53, rule 4(1) of the Rules of the Supreme Court and by analogy with time-limits laid down in planning legislation, Lord Justice Kennedy found himself:
“... driven to the conclusion that here the application was not made promptly, as required by Order 53, rule 4 of the Rules of the Supreme Court. There seems to be no reason why the applicant should have waited to receive the letter of 16th January 1998 before seeking to challenge the decision of 10th November. I can find no good reason to extend the period laid down by the Order.”
Lord Justice Kennedy further observed that, even if ten years ago the use made of the premises was unauthorised, it was now too late for the local authority to institute enforcement action. Lords Justices Aldous and Potter agreed with Lord Justice Kennedy’s reasoning. In a judgment dated 28 October 1998 the Court of Appeal dismissed the applicant’s renewed application.
The first applicant points out that Lord Justice Potter had sat in the Court of Appeal in the appeal against the ruling of Mr Justice Collins and failed to draw the attention of his colleagues hearing the appeal on the applicant’s judicial review application to the fact that the Council had earlier argued that planning only related to unit 2, whereas in the judicial proceedings it was now claiming that it only covered unit 1.
Meanwhile, the applicants’ civil claim in the High Court against Mr Brennan had been stayed pending the outcome of the proceedings against the Council. In February 2002 Mr Brennan applied for an order that directions be given for the future conduct of the applicants’ claim.
On 27 February 2002 Deputy Master Chisholm ordered that the stay be lifted and that the case be transferred from the Royal Courts of Justice in London to Exeter District Registry. Deputy Master Chisholm noted in this connection that the proceedings against the Council had come to an end and, moreover, that the European Court of Human Rights had on 5 July 2001 declared inadmissible an application lodged by the applicants (no. 41671/98).
The applicants appealed against the Order. The applicants’ appeal was heard by Mr Justice Jackson on 16 July 2002. The applicants argued that it was premature to lift the stay in the proceedings since they had lodged a further application (no. 75341/01) with the Court in Strasbourg contesting the Court’s inadmissibility decision of 5 July 2001. Mr Justice Jackson dismissed the applicants’ appeal on this point. Having examined the Court’s inadmissibility decision, he considered that the applicants’ fresh application had no prospects of success. As to the applicants’ objection to the transfer of the civil action from London to Exeter, the judge concluded that Deputy Master Chisholm has reached his decision in the proper exercise of his discretion on case management issues.
COMPLAINTS
The applicants maintain that the Court’s inadmissibility decision of 5 July 2001 (application no. 41671/98) is based on an incorrect statement of the facts and that the legal reasoning is seriously flawed. They contend that the Court in that decision committed the same error as the domestic courts by assuming that planning permission had been granted to Mr Brennan by the Council in 1988 and at no stage addressed themselves to the true scope of the permission actually given. The applicants submit that the Court should establish what was actually granted by the Council under planning application no. 88. 1887 and to reach its decision with reference to the documentation that they have supplied. They maintain that the documentation clearly shows that neither unit 1 nor unit 2 was covered by planning permission and that the only premises addressed in planning application no. 88.1887 was a storage building.
The applicants assert that the facts of their case disclose breaches of Articles 2, 8 and 13 of the Convention and Article 1 of Protocol No. 1 thereto insofar as an illegal industrial activity has been deliberately allowed to operate to the detriment of their health and property and the Council has knowingly sought to conceal the true nature of the planning record and to purport throughout that planning permission had been given.
Furthermore, the facts relied on show that they had no effective remedy to obtain a determination of their complaints against the Council and its officers who acted unlawfully and abused their powers by purporting there to be planning permission for the illegal activity. They rely on Articles 6, 13 and 17 of the Convention.
The applicants submit that they have been discriminated against on account of, among other things, their Chinese origin and have been treated differently from those responsible for the emission of the toxic fumes behind their home and restaurant. They rely on Article 14 in conjunction with Articles 2 and 8 of the Convention and Article 1 of Protocol No. 1.
With reference to the pending civil action against Mr Brennan, the applicants stress that the outcome of that action is closely linked to the question whether Mr Brennan can rely on the grant by the Council of planning permission to carry on his paint spraying operation. In their submission, if the domestic courts were to accept Mr Brennan’s defence, despite clear evidence to the effect that Council officials purported there to be planning permission for his activity and unlawfully misled the domestic courts in the litigation against the Council by manipulating and concealing the true nature of the planning record, there would a breach of their rights under Articles 6, 8, 13 and 17 of the Convention. They maintain that the Council was biased n favour of Mr Brennan.
The applicants contend, among other things, that Mr Justice Jackson in his judgment of 16 July 2002 did not act independently or impartially since he did not query the documents allegedly showing that the Council had given Mr Brennan planning permission, and this despite evidence confirming that Council officials had acknowledged that this was not the case. They invoke Articles 6 and 13 of the Convention.
The applicants further contend under Article 6 that the judge was wrong to rely on certain statements in the Court’s inadmissibility decision of 5 July 2001, misconstrued the essence of their claim against the Council and made impermissible use of domestic case law.
The applicants insist that the facts relied on disclose a breach of their rights under Article 8 of the Convention since the domestic courts treated their claim as a claim based on damage caused by a legal activity, whereas the true basis of their claim was that they had suffered harm on account of an unlawful activity.
The applicants further allege a violation of Article 14 of the Convention, including in conjunction with Article 6. They maintain that they have been discriminated against on account of their Chinese origin and that by denying them their rights to a fair hearing the Court of Appeal failed to treat them on an equal footing to other citizens.
The applicants argue that the facts of the case give rise to a breach of Article 17 of the Convention.
With reference to Article 1 of Protocol No. 1 the applicants state that the judge purported that the toxic emissions from which they suffered emanated from a legal industrial activity, whereas that activity was illegal and interfered with their property rights.
Application no. 71293/01
The first applicant lodged the above application on 2 July 2001. In the proceedings before the Court, the applicant is represented by Dr K. S. Badsha, a legal consultant with the Environmental Law Centre, Southport, England.
The facts of the case may be summarised as follows.
On 13 January 1998 the Appeal Committee of the House of Lords refused the applicants’ petition for leave to appeal. The minutes of the proceedings recorded that the Council could apply for its costs and if the application was granted the amount would be certified if no agreement could be reached on it.
The first applicant’s solicitor at the time received a notification dated 30 October 1998 to attend a taxation hearing regarding the costs incurred by the Council in respect of the applicants’ petition for leave to appeal to the House of the Lords against the decision of the Court of Appeal in the civil proceedings against the Council referred to in application no.75341/01.
A taxation hearing was held on 19 January 1999 before the Judicial Taxing Officer of the House of Lords. By a decision of 22 April 1999, the Judicial Taxing Officer of the House of Lords allowed the Council’s bill of costs in full (approximately GBP 2,000).
The first applicant protested about the decision, including through his MP, but without success. The first applicant maintained that the Council had not been invited to make submissions on the above-mentioned petition (and which was in effect ex parte), that his solicitor had informed him that he had never seen any such submissions, that the Council had never discussed with his solicitor that it would be making an application for costs and what the nature of those costs would be and that the Taxing Officer had abused his powers.
The first applicant sought to challenge this decision by way of judicial review. By letter dated 13 February 2001 the first applicant was informed by the High Court’s Administrative Office that the High Court had no jurisdiction in the matter since its jurisdiction only extended to decisions of inferior courts and tribunals.
COMPLAINTS
The first applicant complains, inter alia, that the Taxing Officer abused his discretion, acted in breach of procedural rules, was biased against him and overlooked the fact that the local authority itself had not complied with the House of Lords own practice directions on the matter of costs. He submits that the Taxing Officer ordered him to pay the Council’s inflated costs in the absence of any authority to do so and further maintains that there was no justification for seeking the Council’s comments on his petition before it had been considered by the Appeal Committee of the House of Lords.
The first applicant submits that he was denied a fair hearing in the proceedings before the Taxing Officer, had no effective remedy in respect of the decision reached by him and was the victim of an abuse of rights since the Taxing Officer awarded costs to the defendant Council to which it was not entitled.
The first applicant relies on Articles 6, 13 and 17 of the Convention.
Application 44332/02
The application was lodged on 28 November 2002. In the proceedings before the Court, the first applicant is represented by Dr K. S. Badsha, a legal consultant with the Environmental Law Centre, Southport, England.
The first applicant joined the Federation of Small Businesses (“FSB”) in 1991. He paid his membership fee, and thereafter renewed his membership annually. His decision to become a member was influenced by the FSB’s undertaking in its promotional literature to pay legal and accountancy fees up to GBP 35,000 in dealing with an in-depth Inland Revenue investigation.
The Inland Revenue carried out an in-depth investigation of the first applicant in 1994, after he had sought advice from the tax authorities about his tax situation. In 1996 the Inland Revenue cleared the first applicant of any suspicion of fraud. The first applicant sought to be indemnified for the accountants’/consultants’ costs he had incurred in defending himself during the investigation. According to the first applicant, the FSB’s insurer reversed its initial decision not to indemnify him and agreed to reimburse him the costs he had incurred, only to renege later on its promise. The first applicant declined the insurance company’s proposal to submit the full claim to arbitration. Dissatisfied with the outcome of his dealings with the insurer, on 11 July 2000 the first applicant sued the FSB for breach of contract, relying on the FSB’s unqualified undertaking to cover its members’ costs.
On 6 October 2000 District Judge Meredith ordered that the first applicant’s claim be struck out as disclosing no cause of action against the FSB. The judge accepted FSB’s defence that the first applicant’s claim lay against the insurance company which underwrote the undertaking and that FSB’s obligation was limited to introducing him to an insurer.
On appeal, His Honour Judge Overend, on 12 January 2001, ordered that the first applicant’s claim be reinstated, being satisfied, firstly, that there was no contractual relationship between the first applicant and the insurance company and, secondly, that the first applicant’s only avenue of redress was to sue the FSB with which he had concluded a contract. Further directions for trial of the case were to be given by a District Judge.
On 18 April 2001 District Judge Meredith ordered that the question whether the FSB was liable to the first applicant and, if so, the scope of its liability, be determined as a preliminary issue.
On 29 June 2001 His Honour Judge Rucker ordered that all matters relating to the case were to be tried in the current trial window. The first applicant sought leave to appeal against that order in the hope of having the issue of liability tried separately.
On 25 September 2001 Mr Recorder Moxon-Browne proceeded to try the issue of the FSB’s liability to the first applicant. Following a hearing, the judge found on the evidence, and with reference to domestic case-law (the House of Lords’ decision in Swain v. the Law Society), that the FSB had only agreed to gave the first applicant the benefit of an insurance policy to guard against the expenses incurred as a result of an in-depth tax investigation. The first applicant’s claim to be indemnified therefore lay against the insurer, and not with the FSB. The judge however expressed the view that the FSB could have clarified better in its advertising what the scope of its obligation was in this area. The first applicant appealed.
On 4 October 2002, the Court of Appeal dismissed the first applicant’s appeal following a hearing. Having reviewed the documents relied on by the applicant, Lord Justice Laws considered that the first applicant had not made out a case that he had concluded a contract with the FSB under which the FSB would meet without qualification all of the expenses incurred by the first applicant in the course of an in-depth Inland Revenue investigation. In his opinion, the words used by the FSB were not inconsistent with an intention to provide insurance services rather than an unqualified indemnity. Furthermore, the provision to the first applicant of insurance documentation at the time he joined the FSB indicated that his membership entailed his access to insurance services.
Complaints
The first applicant maintains that the domestic courts distorted the facts of the case, reached conclusions in the absence of evidence, erred on matters of law, diverted the basis of his claim, abused their powers and did not act independently and impartially. He refers, among other things, to the improper manner in which Mr Recorder Moxon-Browne and the Court of Appeal dealt with the issues before them and to the fact that the Recorder took it upon himself to decide who was the correct defendant to the proceedings, even though this issue had already been settled by Judge Overend. The first applicant relies on Article 6 of the Convention to condemn these and other breaches of his right to a fair hearing which he has identified.
Under Article 13 of the Convention, the first applicant complains that the Court of Appeal reached its decision by adducing a document which did not exist, thereby abusing its power and acting without authority by assuming there was such a document.
The first applicant further relies on Article 14 of the Convention. He maintains, among other things, that he was discriminated against in his access to justice on account of his status as a litigant in person.
The first applicant finally maintains that the abuse of power on the part of the Court of Appeal amounts to a breach of Article 17 of the Convention.
THE LAW
Application no. 75341/01
The Court observes at the outset that the above-mentioned application is, firstly, a challenge to the Court’s decision of 5 July 2001 declaring the applicants’ earlier application inadmissible and, secondly, an attempt to reassert their previous complaints with reference to their view of the facts of the case and the nature of the grievances which they submitted to the Court. Moreover, they rely on new developments at the domestic level following the adoption of the Court’s inadmissibility decision, developments which, in their opinion, give rise to further breaches of their Convention rights and confirm the breaches which underpinned their first application.
It further notes that, in an initial stage, the applicants sought to lodge the instant application against the Council of Europe in the framework of which the Court operates. They impugned, among other things, the fairness of the procedures used by the Court in reaching its decision, in particular the facts and reasons relied on for dismissing their first application. It notes, however, that any application directed against the Council of Europe cannot be submitted to the Court, being incompatible ratione personae with the provisions of the Convention.
It would also note that the tenor of the applicants’ submissions to the Court and the nature of the accusations which they have levelled against it following the adoption of the inadmissibility decision are unacceptable. The Court rejects these accusations. It would draw attention in this connection to the provisions of Article 35 § 3 which empowers it to reject any application which it considers “an abuse of the right of application” (see Duringer and Others v. France (dec), no. 61164/00 (unpublished).
In so far as the applicants request that their initial application be restored to the list, that request is rejected, the Court being satisfied that its decision is consistent with the way it was pleaded at the time when the application was lodged and with the information at its disposal including the judgments of the domestic courts. In particular, the Court observes that the applicants’ complaint under Article 6 of the Convention was that they had been denied access to court in the determination of their claims against the local authority for negligence, breach of duty and ultra vires in consequence of the “immunity” granted to the local authority by Mr Justice Collins and by the Court of Appeal.
In so far as the instant application relies on new facts, and even assuming that it is not substantially the same as matters already examined in application no. 41671/98, the Court would make the following points.
In the first place, the applicants request it to make a finding of fact on the evidence which they have submitted. However, that is not within its province. The Court recalls that, in accordance with Article 19 of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention. According to its established case-law, it is for the domestic authorities and in particular the courts to establish the facts of a case in the light of the arguments and evidence submitted to them and the Court is not competent to deal with an application alleging that errors of law or fact have been committed by the domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. It is of course the applicants’ primary contention that the domestic courts have never answered the questions: what was the scope of planning application no. 88.1887 and which building was covered by the planning permission given? In the applicants’ view, had the courts addressed themselves to this matter they would have been led to conclude that neither unit 1 nor unit 2 benefited from planning permission with the result that the industries operating out of those units were and are unlawful.
However, the Court notes that in the civil action against the Council the essence of their claim, although the applicants dispute this, was based on the Council’s negligence in the grant of planning permission and its breach of statutory duty. It appears from the Court of Appeal proceedings that the applicants’ lawyers sought to introduce a new plea that the Council’s officers were guilty of misfeasance. Lord Justice Potter noted:
“(...), in the circumstances of this case, we consider that it was a plea which was rightly not made or relied on before the Judge below and its subsequent proposed addition by way of amendment smacks of an ill-considered attempt to create a long-stop, should one be needed, by which to resist an unfavourable outcome to this appeal. (...) None of those matters in our view, per se or by inference, gives rise to any implication of malice sufficient to establish a deliberate and improper abuse of power. (...)”
Moreover, Lord Justice Potter found that, even assuming that unit 2 was not covered by the original planning permission given to Mr Brennan, it could not be inferred that the Council acted otherwise than under a bona fide mistake in respect of the planning situation with respect to unit 2.
For the Court, it falls to a litigant to persuade a domestic court of the strength of his claim on the evidence, including that his opponent had acted fraudulently. The fact that the applicants were unable to convince the domestic courts on the evidence that the Council was purporting that planning permission had been given to unit 2 does not in the circumstances of this case raise a Convention issue. Moreover, it endorses its reasoning in its earlier decision for dismissing the applicants’ complaints based on Articles 6 and 13 in so far as they can be construed as a denial of their right of access to a court for a determination of their civil rights.
Secondly, the applicants had a further opportunity to vindicate their view on the scope of the original planning permission and to allege fraud on the part of Council officials. However, the first applicant failed to comply with the statutory time-limit in lodging his judicial review application. The first applicant challenges the fairness of the application of Order 53, rule 4(1) to his case, in particular the imposition of a time-limit based on planning law considerations in a case where planning permission had never been granted in respect of units 1 and 2. The Court sees no reason depart from the conclusions which it reached in application no 41671/98 concerning, firstly, the legitimacy and proportionality of the limitation on the first applicant’s right of access to court and, secondly, the presence of Lord Justice Potter in the Court of Appeal proceedings. In sum, by failing to comply with the time-limit, the first applicant denied himself an opportunity to have his views considered by the domestic courts in judicial review proceedings.
Thirdly, the applicants assert that Council officials have been guilty of misconduct, have misrepresented the planning position, have purported there to be planning permission for units 1 and 2 when none existed, have manipulated the relevant planning record and have submitted fraudulent affidavits to the domestic courts to conceal the true position. It is to be noted, however, that it does not appear the applicants have reported these matters to the police so as to allow these serious allegations to be investigated. Nor does it appear that they have sought to sue the officials in tort in order to have their liability established.
In any event, and as stated earlier, it is not for the Court to establish the facts or to conclude that, in so far as the facts have been established, that the domestic courts erred in their approach or their assumptions.
It recalls that the applicants’ complaints under Articles 8, 14 and Article 1 of Protocol No. 1 were dismissed in the earlier application, mainly for their failure to avail themselves of effective remedies. The Court referred in this connection to the fact that it was open to the applicants to sue Mr Brennan or to seek an injunction against him or to lay a criminal complaint against him. The remedies against the Council, in so far as they complained or continue to complain about toxic emissions, were also alluded to. These conclusions are equally valid as regards the applicants’ complaints under Article 2 of the Convention, even assuming its applicability on the facts.
It further notes that the action against Mr Brennan has now been revived and that a hearing has been scheduled. The applicants contest the fairness of the proceedings before Deputy Master Chisholm and Mr Justice Jackson. However, those proceedings did not involve the determination of the applicants’ civil rights and do not therefore attract the application of Article 6 of the Convention. It observes that the matters before the judges were in the nature of procedural motions and the rulings given did not determine the rights of the parties in relation to the applicants’ final claim against Mr Brennan (c.f. Markass Car Hire v. Cyprus (dec), no. 51591/99). In any event, there is nothing in the applicants’ submissions which give rise to any appearance of a breach of the fairness requirements of Article 6, less so the other Articles relied on by the applicants. It would further observe that the civil action against Mr Brennan is pending. Any complaints based on the fairness of those proceedings must be considered premature and cannot be examined by the Court.
It follows that the application, in so far as it can be said that it is not substantially similar to the matters addressed in application no.41671/98, is manifestly ill-founded as a whole and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
Application no. 71293/01
The Court has had regard to the various arguments and materials relied on by the applicant. On the understanding that Article 6 of the Convention applies to the proceedings at issue (see Robins v. the United Kingdom, judgment of 23 September 1997, Reports of Judgments and Decisions 1997 - V, p. 1809, § 28; Beer v. Austria, application 304228/96, judgment of 6 February 2001, §§ 11-13 (unreported), it considers that the applicant has not substantiated his claim that he was denied a fair hearing on the assessment of his liability to pay the costs incurred by the Council in reacting to his leave to appeal petition.
For the Court, what is important is that the first applicant’s solicitor was able to contest at an inter partes hearing the bill of costs submitted by the Council including the appropriateness of allowing the Council to incur costs before the Appeal Committee of the House of Lords had decided on his petition. Furthermore, the Court is satisfied that there was a legal basis for ordering the first applicant to pay the costs claimed by the local authority, having regard to the decision of 13 January 1998 rejecting his petition. It would also observe that it cannot be considered unreasonable for the Council to have taken legal advice when notified of the petition and to have incurred costs in assessing its situation prior to the outcome of the Appeal Committee’s decision.
The Court further observes that the first applicant has not substantiated his complaint of bias. His essential grievance concerns the manner in which the Taxing Officer exercised his discretion against his interests. However, it is not for the Court to substitute its own decision for that reached by the Taxing Officer who heard the views of both parties on the costs issue.
It follows that this complaint, and the related complaint under Article 17 of the Convention are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. In the absence of an arguable complaint that Articles 6 and 17 have been breached, the first applicant’s complaint under Article 13 must also be rejected as being manifestly ill-founded in application of Articles 35 §§ 3 and 4.
The application as a whole is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
Application no. 44332/02
The Court has had regard to the all of the arguments raised by the first applicant and to the documentation which he has submitted in support of his complaints under Articles 6, 13, 14 and 17 of the Convention. In essence, the first applicant claims that the domestic courts erred on matters of fact and evidence as well as of domestic law and procedure. However, it is primarily for the domestic courts to assess the weight of the evidence which is laid before them, to establish the facts with reference to the evidence gathered, to apply domestic law to the dispute at hand and to reach a conclusion on the issues submitted to them. Article 6 guarantees an applicant a right to have a determination on a civil claim in accordance with a fair procedure. It does not guarantee him a successful outcome, still less a right to request the Court to act as a court of appeal in respect of errors allegedly committed by domestic courts in applying domestic law or drawing conclusions on the evidence.
The applicant has disputed the fairness of the domestic proceedings before the Recorder and before the Court of Appeal. The Court for its part finds nothing in those proceedings which can lay the basis of an arguable claim of a breach of the first applicant’s right to a fair hearing. The first applicant was heard before the Recorder and before the Court of Appeal, indeed sympathetically, and was able to state his case for imposing liability on the FSB. The decisions handed down on these occasions were reasoned and it cannot be maintained that the conclusion reached by the Court of Appeal was in any manner arbitrary or at odds with the weight of the evidence or based exclusively on a non-existent document or on speculation about the content of that document. It does not agree with the first applicant that a fairness issue arises in the case on account of the fact that the Recorder stated that the FSB was not the proper defendant to the proceedings, contrary to the earlier view of His Honour Judge Overend. The Recorder tried the issue of liability on the evidence and found that the FSB had not committed itself to indemnifying the applicant. The issue before His Honour Judge Overend was of a procedural nature, and any contradiction between the judges’ views on the matter cannot be said to impinge upon the principle of legal certainty.
In conclusion, the first applicant received a fair hearing in compliance with the fairness requirements of Article 6. On that account, he cannot rely on Articles 13 and 17 to support his complaints under Article 6.
Furthermore, there is no appearance on the materials submitted of a breach of Article 14.
It follows that the application as a whole is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Declares the applications inadmissible.
Michael O’BoyleMatti Pellonpää
RegistrarPresident
Full & Egal Universal Law Academy