AS TO THE ADMISSIBILITY OF
Application No. 12812/87
by Kathleen and William McKINNON
against the United Kingdom
The European Commission of Human Rights sitting in private on
13 December 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
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 17 January 1987
by Kathleen and William McKINNON against the United Kingdom and
registered on 20 March 1987 under file No. 12812/87;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants, mother and son, are British citizens, born
in 1921 and 1958 respectively and resident in Leeds. The facts as
submitted by the applicants may be summarised as follows.
In 1972 and 1976, the applicants allege that parts of the
garden of their family home were occupied without permission by
neighbours, who cut down trees growing on the land. The applicants
commenced proceedings against their neighbours on 19 July 1983 for
recovery of their land and damages for trespass. On 7 September 1984,
the defendants to the action were granted legal aid. The defendants
in or about 1985 moved to a new home 400 km away.
On 3 July 1985, the applicants applied for legal aid. Though
they were financially eligible, the General Committee refused legal
aid since it "did not consider the subject-matter of the dispute
justified the potential cost of the proceedings". The applicants
appealed to the Area Committee, pointing out the defendants were
receiving legal aid. Their appeal was dismissed on 13 January 1986 in
the following terms:
"The Area Committee carefully considered the contents of
your application, including your photograph and plans
lodged. The Committee noted the nature and extent of
the proceedings you have commenced. The Area Committee
doubted whether you would be able to successfully pursue
the proceedings but, in any event, considered the
subject-matter of the dispute did not justify the further
pursuance of the proceedings."
The applicants applied for judicial review, challenging the
decision to refuse them legal aid and also the decision to grant legal
aid to the defendants. Leave to apply for judicial review was refused
on 18 June 1986. The applicants renewed their application and
following a hearing before the Divisional Court, their application was
dismissed on 18 July 1986, the Court holding as follows:
"This application is to challenge not only the decision to
refuse legal aid to these applicants but also the decision
to grant legal aid to the defendants. The points which are
made are that the Legal Aid Committee have not properly
considered the documents. It is said that on the merits
these applicants have a good case, but if they had taken
the law into their own hands and seized back the land in
dispute then the action would have been brought the other
way round and they as defendants might have got legal aid
and the applicants in those hypothetical proceedings might
not. All of that is as may be. This court has a
supervisory and reviewing jurisdiction and it is not
appropriate for it to go into the merits of the dispute.
What would have to be established on this application is
that there was an arguable case and that the Law Society's
Committee had in either of these regards, that is the grant
in the one case and the refusal in the other, acted in some
way which was outside their powers or was wholly unreasonable
and irrational or there was some procedural impropriety or
some matter had been taken into consideration which should
not have been or something which should have been taken into
account was not. None of those matters, it seems to me, are
shown by these papers or by what has been addressed to the
court this morning by , who has
presented his argument very courteously, but, it seems to
me, if I may say so, without any real substance.
There cannot be any basis upon which there could be challenge
to the grant of legal aid to the defendants. I would
emphasise what was said by Mr. Justice Mann, that there is a
world of difference between granting legal aid to a plaintiff
to pursue an action which the Legal Aid Committee does not
think either is a matter of substance or has much chance of
success on the one hand, and granting legal aid to defendants
who are challenged by an action of that kind so as to enable
them to defend their position."
Their appeal to the Court of Appeal was dismissed on
20 October 1986.
COMPLAINTS
The applicants complain that they have been deprived of their
right to a fair hearing under Article 6 of the Convention. They
submit that as a result of the refusal of legal aid and of the
provisions of the Legal Aid Act 1974, they will be unable to recover
their costs. Section 8(1)e of the Act limits the costs paid by an
unsuccessful legally-aided party to an amount which is a reasonable
one for him to pay having regard to all the circumstances, including
the means of all the parties and their conduct in connection with the
dispute. Section 13(3)a of the Act prevents successful plaintiffs who
are not legally-aided from recovering their costs from the legal aid
fund. They submit that this acts as a strong disincentive to continue
and puts them to under pressure to settle. They are forced to
continue with the action however since otherwise they would have to
pay the defendants costs as well as their own.
They also complain that they are at a disadvantage to the
defendants who will be legally represented. They further complain of
the decisions of the Law Society refusing them legal aid. The
applicants also complain under Article 13 of the Convention that they
are denied an effective remedy for the violation of their rights under
Article 1 of Protocol No. 1 to the Convention to peaceful enjoyment of
their possessions.
THE LAW
1. The applicants complain that they have been deprived of their
right to a fair hearing and refused free legal aid to pursue civil
proceedings.
The Commission first recalls that Article 6 para. 3 (c) (Art.
6-3-c) of the Convention secures a right to be granted free legal aid,
under certain conditions, only to those charged with a criminal
offence. In civil proceedings, however, as in the present case, no
right to free legal aid is as such included among the rights and
freedoms guaranteed by the Convention (see e.g. No. 265/57, Dec.
20.7.57, Yearbook 1 pp. 192, 194; Nos. 7823/77-7824/77, Dec. 6.7.77,
D.R. 11 pp. 221, 232).
However, the refusal of free legal aid may, in certain
circumstances, amount to a denial of the right of access to court
secured by Article 6 para. 1 (Art. 6-1) of the Convention to everyone
whose civil rights and obligations are to be determined (see Eur.
Court H.R., Golder judgment of 21 February 1975, Series A no. 18,
para. 36; Airey judgment of 9 October 1979, Series A no. 32, para.
26).
The Commission also recalls its constant case-law which
establishes that when an applicant is refused legal aid on the basis
that his claim lacks reasonable prospects of success, this would not
constitute a denial of access to court unless it could be shown that
the decision to refuse legal aid was arbitrary (see e.g. Application
No. 8158/78, Dec. 10.7.80, D.R. 21 p. 95).
The Commission recalls in the present case that the applicants
were refused legal aid by the General Committee on the ground that the
subject-matter of the dispute did not justify the potential cost of
the proceeding and that this decision was upheld by the Area Committee
which further doubted whether the applicants would be able
successfully to pursue the proceedings. The Commission further
recalls that in the judicial review proceedings, the High Court and
Court of Appeal found nothing improper or unreasonable in these
decisions. The Commission also notes that there is no evidence to
indicate that the applicants are not able to pursue the proceedings in
the absence of legal aid.
The Commission notes that the applicants complain that the
refusal of legal aid will also, as a result of the relevant
legislation, have the effect that if they are successful they will
have poor prospects of recovering their costs and that this acts as
a disincentive and places them at a disadvantage vis-à-vis the
defendants who are legally aided. However, while Article 6 para. 1
(Art. 6-1) of the Convention guarantees to litigants effective access
to court for the determination of their "civil rights and
obligations", it cannot be interpreted as guaranteeing that a
successful party be reimbursed his costs either from the other party
or the State. The Commission further notes that the applicants are in
fact continuing with the proceedings. In these circumstances the
Commission finds that the applicants have failed to establish that the
very essence of their right of access to court has been impaired or
that the provision of legal aid to the defendants will deprive them of
a fair hearing.
In light of the above circumstances, the Commission finds that
the applicants' complaints fail to disclose a violation of Article 6
para. 1 (Art. 6-1) of the Convention.
It follows that this complaint is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicants also complain that they have no effective
remedy for the violation of their rights to peaceful enjoyment of
their possessions. They invoke Article 13 (Art. 13) in conjunction
with Article 1 of Protocol No. 1 (P1-1).
The Commission recalls however that the applicants are
pursuing civil proceedings for the recovery of their land and damages
for trespass. The Commission notes that the applicants have
complained of a refusal of a legal aid and that they have poor
prospects of recovering any award of costs. However, the Commission
has already found that the applicants have not thereby been deprived
of effective access to court and that they are nonetheless able to
pursue those proceedings. Further while an award of costs may not be
forthcoming from the legal aid fund, the applicants if successful
could still be awarded damages and an order for the recovery of their
land.
The Commission accordingly finds the applicants' complaints
disclose no appearance of a violation of Article 13 (Art. 13) of the
Convention in conjunction with Article 1 of Protocol No. 1 (P1-1).
It follows that this complaint is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)