MITCHELL AND HOLLOWAY v. THE UNITED KINGDOM

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44808/98
by Geoffrey MITCHELL and Louis HOLLOWAY
against the United Kingdom

The European Court of Human Rights, sitting on 19 June 2001 as a Chamber composed of

MrJ.-P. Costa, President,
MrW. Fuhrmann,
MrL. Loucaides,
SirNicolas Bratza,
MrsH.S. Greve,
MrK. Traja,
MrM. Ugrekhelidze, judges,
and Mrs S. Dollé, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 1 July 1998 and registered on 3 December 1998,

Having deliberated, decides as follows:

THE FACTS

The applicants, Geoffrey Mitchell and Louis Holloway, are nationals of the United Kingdom. They were born in 1946 and 1941, respectively, and live in Kent. They are represented before the Court by Mr Graydon, a lawyer practising in Southampton, the United Kingdom.

A.  The circumstances of the cases

The facts of the case, as submitted by the parties, may be summarised as follows.

On 7 February 1986 the applicants granted to a company now known as Buckingham International Limited (“Buckingham”) an option to purchase 90% of the share capital in Worldwide Dryers Limited (“WWD”) for 2 pounds sterling (“GBP”) a share, with a further option to purchase the remaining 10% at a price to be fixed by an agreed formula. On 2 October 1986 the first lot of shares in WWD was purchased. Relations between Buckingham and the applicants subsequently deteriorated.

On 12 February 1988 WWD and Buckingham issued High Court proceedings against the applicants claiming, inter alia, damages for breach of contract. On 27 October 1988 Buckingham exercised its call option on the remaining 10% of the shares of WWD, Buckingham alleging that no further payment was due to the applicants given its outstanding claims against them.

In January 1990 the second applicant was granted legal aid.

The plaintiffs finally served their statement of claim on 1 May 1990 having received numerous extensions of time (ordered by the court on the basis of the parties’ consent). The statement of claim ran to fifteen pages. It included many allegations of breaches of warranties in the option agreement and claims that the applicants owed WWD substantial sums of money which they had borrowed from WWD through directors’ loans schemes.

The applicants served a short-form defence on 31 July 1990 after two extensions of the relevant time-limit granted by the High Court following contested hearings. Further particulars of the defence were requested by the plaintiffs in November 1990. At a directions hearing on 28 February 1991, a Master of the High Court, inter alia, allowed the applicants to amend their defence and to file a counterclaim, and ordered that the action be set down for hearing on or before 23 March 1991. This date was subsequently vacated by the parties’ agreement. On 23 April 1991 the applicants were accorded until 14 May 1991 to file the amended defence and counterclaim, and it was so filed. In June 1991 the first applicant was granted legal aid. The plaintiffs’ reply and defence to the counterclaim was served on 9 September 1991, after an extension of time.

At the request of the applicants’ solicitors, on 23 October 1991 the High Court ordered that the plaintiffs’ claim and the applicants’ counterclaim be set down for hearing. The relevant setting down notice was filed by the plaintiffs on 31 October 1991.

On 13 November and 19 December 1991 the High Court ordered the plaintiffs to file outstanding pleadings. By letter dated 7 November 1991, the applicants requested an expedited hearing from the Lord Chancellor’s office. The letter of the Administrator of the Royal Courts of Justice dated 20 November 1991, in response, explained that the applicants could apply to the High Court to advance the hearing but that the court was otherwise unable to bring the hearing date forward. It further explained that such delays often occurred given the number of cases waiting to be heard, in the light of the estimated hearing time (then ten days) and because a fixed hearing date had been requested.

In late 1991 and early 1992 the applicants were advised by solicitors and by junior and Queen’s Counsel that an application for an expedited trial was unlikely to succeed. On 9 January 1992 the plaintiffs filed outstanding pleadings (further and better particulars of the statement of claim) and in February and March 1992 discovery took place in the case.

On 6 February 1992 counsel for all parties submitted an increased estimated hearing time of fifteen days. On 27 February 1992 the hearing date was fixed for 7 March 1994. The High Court later confirmed in its judgment of 5 November 1997 that the two-year delay in such cases was “not untypical” and that the reason was that the Chancery lists were “extremely congested”.

On 8 December 1993 WWD was ordered (on its own petition) to be wound up.

On 24 February 1994 the applicants applied for an adjournment of the hearing date and for an expedited hearing date thereafter. Both requests were granted and the hearing date was re-scheduled for April 1994. On 12 April 1994 the applicants served further amendments to their defence and counterclaim.

The hearing began on 26 April 1994 and lasted 20 days. Since WWD was in liquidation and did not appear, the judge dismissed WWD’s action at the outset. Buckingham applied to make substantial amendments to its pleadings and its claims were therefore adjourned. Only the applicants’ counterclaim was therefore examined. Judgment (ninety-nine pages) was delivered by Ferris J. on 18 July 1994 in favour of the applicants in the sum of GBP 3,681,143.47 plus costs.

The execution of that judgment was stayed by order of the High Court on 27 July 1994 pending the lodging of a notice of appeal. On 29 July 1994 the High Court made an order for security for costs against Buckingham and on 15 August 1994 Buckingham lodged an appeal. On 12 September 1994 Buckingham’s claims were dismissed by consent and costs were awarded to the applicants. The stay was partially lifted, allowing the applicants to pursue execution of a small part of the judgment. On 20 April 1995 a High Court Master made a provisional charging order over the property of Buckingham in the sum of the judgment.

On 27 April 1995 creditor banks appointed administrative receivers in respect of Buckingham. On 22 May 1995 the High Court Master confirmed the charge on Buckingham’s property in the amount of the judgment and of the interest and legal costs accrued since the judgment. On 8 June 1995 Buckingham withdrew its pending appeal since the receivers did not wish to pursue it. The appeal was therefore dismissed by the High Court on 29 June 1995 and costs were awarded to the applicants. The stay was also lifted.

In March 1996 the Taxing Office assessed the applicants’ costs (including those of the appeal but less the periods for which they were legally aided) at GBP 500,000 approximately.

Given the appointment of administrative receivers to Buckingham, the applicants investigated how to achieve priority for their judgment over unsecured and preferential creditors of Buckingham, and it was considered that the judgment could be enforced against the intra-group indebtedness of certain subsidiaries of Buckingham in the United States (“US”).

In early 1996 the applicants therefore had the judgment registered in Florida. In May 1996 they issued proceedings in the US to garnishee funds owed to Buckingham by its US subsidiaries. On 8 May 1996 a circuit court in Florida made an order by which over 7,000,000 US dollars of those subsidiaries’ funds were held in court as security for the judgment debt in the United Kingdom.

On 21 May 1996 the High Court, on the application of Buckingham’s administrative receivers for a winding up order, appointed provisional liquidators to take over its affairs. In May 1996 those provisional liquidators obtained from the US courts a provisional discharge of the order garnisheeing the subsidiaries’ funds. That provisional order was subject to the courts in the United Kingdom determining whether the latter would permit the applicants to enforce their judgment debt ahead of the existing secured and preferential creditors of Buckingham.

The applicants therefore issued new proceedings (no. 2835/1996) on 11 June 1996 in the High Court in the United Kingdom to have determined the issue identified by the US courts. Pointing to the delay in the determination of their claim against Buckingham in the substantive proceedings, they requested the High Court to exercise its discretion to give them priority over the secured and preferential creditors of Buckingham.

On 3 July 1996 a compulsory winding up order of Buckingham was obtained which confirmed the provisional liquidators in office.

On 1 August 1996 the High Court ordered, on the basis of the parties’ consent, that the jurisdiction issue be dealt with as a preliminary matter. On 11 October 1996 the High Court found that it did not have jurisdiction. A notice of appeal was issued on 28 October 1996 and leave to appeal was granted on 14 January 1997. On 21 February 1997 the Court of Appeal found that the High Court had jurisdiction and sent the matter back to the latter court (Mitchell and another v. Carter and another, Re Buckingham International plc [1997] 1 BCLC 681).

On 12 May 1997 the applicants requested that their application be certified as fit for a speedy trial and that application was granted on 3 June 1997. The High Court heard the matter again on 9 July 1997. On 5 November 1997 Harman J. handed down the High Court’s judgment. He found that he could not prefer the judgment debt of the applicants over the secured and preferential creditors of Buckingham. He described the “lamentable history” of the proceedings and was critical of the conduct of those proceedings by Buckingham and their legal representatives, referring to their “highly successful spoiling tactics”, to the “carefully dilatory conduct of the action before mid-1992” and to their “extremely overdue” statement of claim pointing out, in this context, that “if litigation is about the obtaining of justice at a fair trial it is equally clear that that process was wholly obstructed.” A notice of appeal was filed on 5 December 1997.

On 3 February 1998 the Court of Appeal heard the appeal and on 16 February 1998 it confirmed the judgment of the High Court (Mitchell and another v. Buckingham International plc (in liq) and others, Re Buckingham International plc (in liq)(no 2) [1998] 2 BCLC 383). The Court of Appeal also referred to the “delaying tactics adopted in the litigation by and its solicitors” which “may have amounted to, or come close to, abuse of process”. It went on:

“The civil justice system has unfortunately failed to give [the applicants] prompt relief for their complaints, and their eventual victory before Ferris J has become a very hollow victory. Nevertheless, there was in our judgment no substantial flaw in the way in which Harman J exercised his discretion.”

The Court of Appeal also refused leave to appeal to the House of Lords. The application for leave to appeal to the House of Lords (filed on 16 March 1998) was rejected by that body on 29 June 1998.

The applicants finally recovered from the liquidators of Buckingham approximately GBP 100,000 after payment of their costs.

B.  Relevant domestic law and practice

The High Court possesses an inherent jurisdiction to dismiss any action for “want of prosecution” by the plaintiff and an action is liable to be so dismissed where the plaintiff has been guilty of contumelious default or where there has been inordinate and inexcusable delay causing prejudice to the defendant.

It also has an inherent jurisdiction to strike out an action on the grounds that it is an abuse of the process of the Court. This latter power was supplemented by Order 18 rule 19 of the Rules of the Superior Courts (“RSC”) which provided for an express power to strike out any pleading or an endorsement of any writ on the grounds, inter alia, that it may prejudice, embarrass or delay the fair trial of the action, or is otherwise an abuse of process of the Court.

Order 19 rule 1 of the RSC provided that, where a plaintiff failed to serve a statement of claim on a defendant, the latter could apply to the court after the relevant time period passed for an order to dismiss the action. The court could dismiss the action or make such order as it thought fit.

Order 34 rule 2(2) of the RSC provided for action to be taken where the plaintiff failed to set down an action for hearing within the period stipulated by the court: either the defendant could set the case down for hearing or could apply to the court to dismiss the action for want of prosecution. Again, the court could dismiss the action or make such other order as it thought fit.

A party to proceedings could also apply to a Master or judge of the High Court for an order that the hearing of a case be expedited.

COMPLAINTS

The applicants complain about the length of the proceedings invoking Articles 6 and 13 of the Convention, and Article 1 of Protocol No. 1. They mainly complain about the lapse of time between October 1991 and March 1994 and they point to the domestic courts’ failure to control the delaying tactics of Buckingham and to delays caused by the court system itself.

THE LAW

The applicants complain about the length of the proceedings which they consider began on 12 February 1988 and ended on 29 June 1998 and they invoke Articles 6 and 13 of the Convention together with Article 1 of Protocol No. 1 to the Convention.

Article 35 § 1 of the Convention – six months

The Government submit that there were three distinct proceedings about different civil rights and obligations: the proceedings instituted by Buckingham which ended in June 1995, the proceedings in the US in May 1996 and the subsequent proceedings against the liquidators of Buckingham (June 1996 to June 1998). Accordingly, they argue that any complaints about the first set of proceedings which ended in June 1995 are out of time.

The applicants contend that, had they successfully enforced the judgment, then the delay in the proceedings until the appointment of the administrative receivers in respect of Buckingham in April 1995 would not have been prejudicial to them. Accordingly, the six-month period should run from the end of those enforcement proceedings, which proceedings stood some chance of success.

The Court notes that the applicants do not hold the United Kingdom responsible for the proceedings before the US courts and authorities. In addition, the Court is of the view that the proceedings issued in June 1996 before the courts of the United Kingdom can be considered to be a continuation of the prior proceedings before those courts (which terminated in June 1995) since the former constituted proceedings to enforce a prior judgment in the applicants’ favour (Silva Pontes v. Portugal judgment of 23 March 1994, Series A no. 286-A, § 33; Di Pede v. Italy judgment of 26 September 1996, Reports of Judgments and Decisions 1996-IV, no. 17, § 24, and Hornsby v. Greece judgment of 19 March 1997 Reports 1997-II, no. 33, §§ 40-41).

The fact that intervening proceedings in the US allowed the applicants to request the courts in the United Kingdom to exercise its discretion to give them priority over secured and preferential creditors, does not, in the Court’s view, take away from the enforcement nature and character of the proceedings issued in June 1996 in the courts in the United Kingdom.

Accordingly, the Court considers that the introduction on 1 July 1998 of an application about the overall length of the proceedings (which commenced in February 1988) within days of the termination of those proceedings in June 1998 constitutes timely introduction of the application.

Articles 6 § 1 and 13 together with Article 1 of Protocol No. 1

Relying on the Pretto judgment (Pretto v. Italy judgment of 8 December 1983, Series A no 71), the Government argue that the relevant period to be considered must exclude the total time taken by the applicants to file appeals (2 months and 18 days) and by Buckingham to appeal to the Court of Appeal (18 July to 15 August 1994). It must also exclude the time during which the United Kingdom courts were not seized of any dispute (29 June 1995 to 11 June 1996). They suggest, therefore, that the relevant period under consideration is 8 years and 9 months.

The Government also consider the length of the proceedings to be reasonable. In the first place, they submit that the case was factually, legally and procedurally complex.

Secondly, and as to the applicants’ conduct, they submit that the applicants’ failure to use the range of remedies available to them to shorten the proceedings meant that they bore the primary responsibility for the length of the proceedings. The Government refer, in particular, to their failure to apply to expedite the hearing of the substantive proceedings in the High Court. In addition, the Government contend that they took decisions which contributed to the length of proceedings (in particular, to deal separately with the jurisdiction issue before the High Court and the Court of Appeal in the enforcement proceedings). Moreover, the Government hold the applicants solely responsible for certain periods of delay and, in particular, the delay between the service of the statement of claim and the fully pleaded amended defence and counterclaim, and between the initial hearing date of 7 March 1994 and 26 April 1994 when the hearing actually began.

Thirdly, the Government maintain that they are not responsible for the conduct of third parties such as Buckingham, the conduct of which company the domestic courts considered dilatory and almost an abuse of process and which conduct was one of the primary causes of delay. Neither are the Government responsible for any failings or deficiencies of the applicants’ solicitors.

Fourthly, the Government point out that the competent authorities were not responsible for the delaying tactics of Buckingham once remedies were provided to speed up the proceedings and when such remedies were not used by the applicants.

As to the delay between listing the case for trial (31 October 1991) and the trial itself (26 April 1994), the Government accept that a delay of over two years was undesirable and that the case lists in the Chancery Division of the High Court were “relatively congested” at the relevant time. However, they blame the estimated 15-day hearing time and the parties’ request for a fixed hearing date to ensure the attendance of an expert witness. They note that, in any event, the pleadings had not closed in October 1991 and that the applicants themselves requested an adjournment of the original hearing date of 7 March 1994 until April 1994.

Finally, the Government maintain that no separate issue arises under Article 13 or under Article 1 of Protocol No. 1.

The applicants dispute the effectiveness of the remedies to shorten the proceedings to which the Government refer and they contend that English law, practice and procedure was deficient at the relevant time in dealing with delay in civil cases. They refer in some detail to Lord Woolf’s final report on “Access to Justice” of July 1996, to the Report of the Review Body on Civil Justice of June 1988 and to the introduction of the new Civil Procedure Rules in April 1999, which purported to effect radical changes to practice and procedure with a view to expediting cases.

As to the period prior to 31 October 1991, the applicants consider that they did everything in their power to progress their case and they point out that they were not granted legal aid until January 1990 and June 1991, respectively. They also recall that the plaintiffs held the vast majority of the crucial documents, discovery of which was not possible until after the pleadings had closed.

The principal period of delay about which the applicants complain is that between 31 October 1991, when the notice to set the case down for hearing was filed, and 7 March 1994, the first date fixed for the hearing. They accept that this is the only specific period of delay for which the Government can be held responsible and they contend that the Government are solely responsible for it. They dispute the Government’s submissions about the impact of a request for a fixed hearing date, arguing that a fixed date was obtained primarily because of the estimated length of the hearing and that it was standard listing practice in the Chancery Division of the High Court to request a fixed date. They dispute that the availability of witnesses played any part in the delay in fixing a hearing date. They argue that it is unjustifiable to be obliged to wait over two years for a hearing which is not to be of an unusual length. Their own adjournment of the hearing from March to April 1994 is of minor relevance and, in any event, is explained by the discovery by Buckingham of a significant number of documents on 18 February 1994. They further submit that neither the complexity of the case nor the actions of third parties had anything to do with the delay in listing the case for hearing.

The applicants do not complain about any specific period of delay after July 1995 because, at that stage, the administrative receivers had already been appointed to Buckingham.

Finally, the applicants maintain their complaints about the length of the proceedings under Article 13 and under Article 1 of Protocol No. 1.

The Court considers, in the light of the parties’ submissions, that the application raises issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

S. DolléJ.-P. Costa
RegistrarPresident

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