MUNRO v. THE UNITED KINGDOM



AS TO THE ADMISSIBILITY

 

Application No. 10594/83

by J.H. MUNRO

against the United Kingdom

 

 

        The European Commission of Human Rights sitting in private on

14 July 1987, the following members being present:

 

                MM.  C.A. NØRGAARD, President

                     J.A. FROWEIN

                     S. TRECHSEL

                     F. ERMACORA

                     E. BUSUTTIL

                     A.S. GÖZÜBÜYÜK

                     A. WEITZEL

                     J.C. SOYER

                     H.G. SCHERMERS

                     H. DANELIUS

                     G. BATLINER

                     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 7 September

1983 by J.H. MUNRO against the United Kingdom and registered on

19 October 1983 under file No. 10594/83;

 

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

 

        Having regard to:

 

-       the Commission's decision of 13 March 1984 to bring the

        application to the notice of the respondent Government and

        invite them to submit written observations on its admissibility

        and merits;

 

-       the observations submitted by the respondent Government on

        12 July 1984 and the observations in reply submitted by the

        applicant on 7 September 1984;

 

-       the Commission's decision of 11 October 1986 to invite the

        parties to submit further observations in writing on the

        admissibility and merits of the application;

 

-       the further observations submitted by the respondent

        Government on 20 January 1987 and the further observations

        submitted by the applicant on 28 January 1987.

 

        Having deliberated;

 

        Decides as follows:

 

THE FACTS

 

        The facts as they have been submitted by the applicant's

representatives, Messrs.  J.P. Mewies & Co., Solicitors of Ilkley, and

Mr.  Anthony Lester QC of counsel, on behalf of the applicant, a

British citizen born in 1936 and living in Yorkshire, who has been

unemployed since May 1977, and which are apparently not in dispute,

may be summarised as follows:

 

        In December 1973 the applicant was appointed to the post of

Personnel and Management Services Officer with a local authority.  In

May 1977 the applicant returned from a long period of sick leave and

was interviewed by his immediate superior, the Chief Executive of the

local authority, in relation to a number of matters concerning his

employment and his conduct in his post.  This interview had been

preceded by correspondence between the Chief Executive and

representatives of the applicant's union concerning the complaints and

allegations which the Chief Executive was making against the applicant

and which were to be the subject of a meeting on 25 May 1977.

 

        The applicant's employment was terminated following that

meeting.  The Manchester Industrial Tribunal ("the Tribunal") held in

January 1978 that the applicant had been constructively dismissed

("the first decision").  In the course of the judgment, the Tribunal

record that they did not regard the applicant as a reliable witness on

questions of fact, describing him as unduly emotive and imaginative.

The Tribunal stated that they unhesitatingly accepted and preferred

the Chief Executive's evidence over that of the applicant, since they

found the Chief Executive a frank and honest witness.  The local

authority's application for a review of the Tribunal's decision was

subsequently dismissed as was the applicant's request.

 

        Thereafter the applicant took further proceedings before the

Tribunal to establish whether he had been unfairly dismissed.  The

hearing took place on 23, 24 and 26 October 1978 and on 22 November

1978 the Tribunal held the applicant's claim to fail ("the second

decision").  The Tribunal held that the principal reason for the

applicant's dismissal was his employer's belief that he had submitted

incorrect car expense claims, which would constitute gross misconduct

and justify summary dismissal.  In addition, other matters which

formed secondary reasons for the dismissal included the failure to

observe hours of work, absenting himself from his place of work

without authority or permission, unsatisfactory performance of his

duties, his inability to supervise, control and work with his

subordinates and his taking of holidays to which he was not entitled.

The Tribunal held that the applicant was given every opportunity to

explain these matters, but that his explanations did not satisfy the

Chief Executive.

 

        The Tribunal's findings were quite clear in that they

considered:

 

        "On the evidence that we have heard and having considered

        the documentary evidence adduced, we consider that (the

        ex-employers) had reasonable grounds to form the view that

        (the applicant) had in fact made wrongful claims for journeys

        which he had undertaken by car and that there was sufficient

        evidence for (the ex-employers) to reach the view that (the

        applicant) had taken holidays to which he was not entitled;

        that the holiday sheet had been altered in order to facilitate

        taking of those holidays. ...  We consider and so find that the

        principal reason for his dismissal was (the ex-employers')

        belief that (the applicant) had submitted wrongful car expense

        claims.  For a man holding the position which (the applicant)

        held this would constitute, and we so find, gross misconduct;

        it would justify (the ex-employers) summarily dismissing him."

 

 

        The Tribunal then went on to state:

 

        "We certainly dismiss any suggestion which has been introduced

        by the applicant, that his dismissal had been engineered

        politically or that (the Chief Executive) wished to be rid of

        him.  The true position is that (the applicant's) dismissal

        was brought about for the reasons referred to above; they were

        reasons that related solely to his conduct and capability.  He

        was given every opportunity to give explanations.  Those

        explanations were not, in the view of (the Chief Executive),

        satisfactory.  We consider that (the Chief Executive) was

        fully entitled, having regard to the evidence before him, to

        reach and form that view."

 

 

        The Tribunal concluded that they were:

 

        "quite satisfied ... in the circumstances, having regard to

        equity and the substantial merits of the case, that (the

        applicant's) dismissal was not unfair..."

 

 

        There were no grounds upon which an appeal to the Employment

Appeals Tribunal could be successful, since this could only consider

appeals on points of law.

 

        The applicant contends that the contents of letters sent by the

Chief Executive to representatives of his union and to the Department

of Employment on 9 March 1977 and 26 July 1977 respectively were

libelous in alleging that he had made false returns for his car user

expenses.  The applicant has provided evidence in the course of his

application which he claims disproves the allegations made by the

Chief Executive.

 

        The applicant has sought legal advice with a view to issuing

proceedings for libel against the Chief Executive of the local

authority and the local authority itself on the basis of its vicarious

liability.  On 1 September 1978 (that is, in the period between the

first decision and the second decision) Counsel gave a written opinion

on this question.

 

        Counsel advised that whereas the Chief Executive's evidence

before the Tribunal would be wholly privileged (i.e. could not form

the basis of an action for libel) his correspondence with the

applicant's union and with the Department of Education would be

subject to qualified privilege.  Qualified privilege arises where the

actions which were alleged to have been libelous result from the

proper performance of the duties of the person who uttered the libel.

Counsel therefore advised that in order to succeed in an action for

libel the applicant would have to show that the Chief Executive had

been motivated by malice and that his dominant motive in making the

publications complained of was an improper one.  An improper motive is

a motive which the court would not accept as a justification for the

publication.  Counsel went on to advise that it was generally

conclusive evidence of malice against an individual that he knew what

he published was false or published it recklessly and without any

positive belief that it was true.

 

        Counsel then reviewed the specific evidence which the applicant

had presented to him to support the contention that the Chief

Executive was motivated by malice.  He concluded this assessment in

the following terms:

 

        "taken overall, the foregoing matters do, on the face of it,

        constitute a fairly strong case that (the Chief Executive) was

        malicious.  But a number of them require further amplification

        or confirmation and, bearing in mind the different impressions

        which (the applicant) and (the Chief Excecutive) made on the

        (Tribunal), I find it impossible to say at this stage that the

        chances of proving malice against (the Chief Executive) at a

        trial are better than 50%."

 

 

        Counsel continued by advising that in the event that malice was

shown, the applicant could expect to recover "fairly substantial

damages" amounting to between £1000 and £1500 for each publication.

 

        Counsel did not however address himself to the question of the

veracity of the statement made by the Chief Executive, the proof of

which would be a complete defence in defamation proceedings.

 

        The applicant, who has been unemployed since the termination of

his employment with the local authority in question, and who ascribes

his failure to obtain a further post despite his qualifications, to

the refusal of the local authority, in particular the Chief Executive,

to provide him with a reference, has been unable to pursue proceedings

for libel in the absence of legal aid.  Under the terms of Sections 6

and 7 and clause 1 of Part II of Schedule 1 to the Legal Aid Act 1974,

legal aid is not available in England and Wales for proceedings

"wholly or partly in respect of defamation".  The applicant has

nevertheless issued a writ of summons to initiate proceedings for

libel against the local authority.  The writ is dated 25 July 1983,

and claims as follows:

 

        "The plantiff's claim is for damages for libel from the defendant

        who by its employee (the Chief Executive) falsely and maliciously

        wrote and published in a document dated 26 July 1977 to the

        Department of Employment of and concerning the plaintiff and of

        his honesty and competence."

 

        This writ has been issued in order to preserve the cause of

action for one year from the date of issue and in order to remain

within the period of limitation for the action.  On several occasions

the applicant has applied to renew and extend the writ, in view of the

proceedings pending before the Commission.  If the applicant chooses

to proceed with the action he must prepare a full statement of claim.

The applicant submits that such a pleading would have to be settled by

a barrister because of the complex nature of defamation proceedings.

 

        The applicant contends that he is unable to pursue the libel

action although he has a prima facie case, since he is in receipt of

supplementary benefit from the Department of Health and Social

Security and cannot afford the services of a solicitor and a

barrister.  He argues that the highly technical and complex

requirements of defamation proceedings in the High Court prevent him

from proceeding unrepresented.  He contends that the absence of civil

legal aid in these circumstances, coupled with the complexity of the

proceedings themselves, deprive him of the right of access to court to

vindicate his civil rights and specifically to pursue the proceedings

for defamation.

 

 

COMPLAINTS

 

        The applicant complains that he is denied access to court for

the determination and/or enforcement of his civil rights by reason of

the non-availability of legal aid under the Legal Aid Act 1974 in

relation to proceedings "wholly or partly in respect of defamation".

He further contends that the absence of legal aid in these

circumstances prevents him from obtaining a fair and public hearing by

an independent and impartial tribunal established by law.  He claims

that he is discriminated against on grounds of property and his

poverty from pursuing his civil rights.

 

        The applicant contends that he has been subject to a

difference in treatment on three different bases:

 

        1.      The applicant has been treated less favourably

        than persons seeking to enforce all other civil rights

        before the ordinary courts.  Such persons are entitled to

        legal aid upon satisfying the relevant criteria.

 

        2.      The applicant has been treated less favourably

        than the persons who have sufficient means to be able to

        afford to bring legal proceedings to enforce their civil

        rights.  Even if a contracting State is not obliged to

        operate a system of civil legal aid as such under the

        Convention, where a system does exist legal aid must be

        provided without discrimination.

 

        3.      The applicant has been treated less favourably than

        certain public officials, such as police officers, who are

        entitled to use public money to issue defamation proceedings.

 

        The applicant invokes Articles 6 and 14 of the Convention.

 

PROCEEDINGS BEFORE THE COMMISSION

 

        The application was introduced on 7 September 1983 and

registered on 19 October 1983.

 

        On 13 March 1984 the Commission decided to bring the

application to the notice of the respondent Government and invite them

to submit written observations on its admissibility and merits

pursuant to Rule 42 (2)(b) of the Commission's Rules of Procedure.  The

respondent Government's observations are dated 12 July 1984.  On

19 July 1984 the President of the Commission decided that legal aid

should be granted to the applicant, who appointed Messrs.  David R.

Pedley & Co., Solicitors of Keighley, West Yorkshire, to represent

him.  The applicant's observations in reply to those of the Government

are dated 7 September 1984.

 

        On 10 December 1984 the Commission resumed its examination of

the admissibility of the application, which it decided to adjourn.  On

7 March 1985 the Commission resumed its examination of the

admissibility of the application which it again decided to adjourn

pending the receipt of the parties' observations in Application

No. 10871/84 (Dec. 10.7.86 unpublished).

 

        On 16 September 1985 the applicant informed the Commission

that he had appointed Messrs.  J.P. Mewies & Co., Solicitors, Ilkley,

to represent him in place of his former representative.  On

22 October 1985 the applicant's new representatives informed the

Commission that they had instructed Mr.  Anthony Lester QC of Counsel

on the applicant's behalf.

 

        On 12 December 1985 the Commission resumed its examination of

the application, which it then decided to adjourn.

 

        On 12 March 1986 the Commission resumed its examination of the

admissibility of the application and decided to invite the parties to

a hearing on the admissibility and merits.  On 19 June 1986 the

President of the Commission decided that legal aid should be extended

to cover work in the case up to and including the hearing scheduled

for 12 November 1986.

 

        On 11 October 1986 the Commission decided to cancel the

hearing which it had proposed to hold on 12 November 1986 in the light

of its decision on the admissibility of Application No. 10871/84.

The Commission decided to invite the parties, pursuant to Rule 42

(3)(a) of its Rules of Procedure, to submit such further observations

in writing on the admissibility and merits of the application in the

light of that decision on admissibility as they considered necessary.

The legal aid granted on 19 June 1986 was cancelled and replaced by

legal aid to cover work in the case up to the close of the written

submissions.

 

        The respondent Government's further observations are dated

20 January 1987 and the applicant's further submissions are dated

28 January 1987.

 

SUBMISSIONS OF THE PARTIES

 

 

Submissions of the respondent Government

 

 

1.      Domestic law and practice

 

        Legal aid

 

        The availability of legal aid and the conditions on which it

may be granted to a person to pursue civil proceedings in England and

Wales is governed by Part 1 of the Legal Aid Act 1974 (as amended by

the Legal Aid Act 1979 with effect from 28 April 1980) and the

regulations made under it.  Section 7 of the 1974 Act provides that

legal aid is available in connection with such proceedings as are set

out in Part I of Schedule 1 to the Act, and is not available in

connection with proceedings mentioned in Part II of that Schedule.

Section 7 (2) of the 1974 Act provides that the provisions of Schedule

1 may be varied by regulations.  Proceedings wholly or partly in

respect of defamation are excepted proceedings for this purpose under

Part II of Schedule 1 to the 1974 Act.

 

        The 1974 Act provides that legal aid shall consist of

representation by a solicitor and, so far as necessary, by counsel,

such representation to include all such assistance as is usually given

by a solicitor or counsel in steps preliminary or incidental to any

proceedings, or in arriving at, or giving effect to, a compromise to

avoid or to bring to an end any proceedings.

 

        To be eligible for legal aid, a person's disposable income and

capital must fall within the limit specified for the time being in

Section 6 of the 1974 Act.  In addition to these financial limits,

Section 7 (5) of the 1974 Act provides that "a person shall not be

given legal aid in connection with any proceedings unless he shows

that he has reasonable grounds for taking, defending, or being a party

thereto".

 

        The new Section 7 (5A) of the 1974 Act, implemented on

28 April 1980, further provides that "a person may be refused legal

aid if, in the particular circumstances of the case, it appears:-

 

        (a)     unreasonable that he should receive it;

 

        (b)     more appropriate that he should receive assistance by way

                of representation".

 

        Section 15 (1) of the 1974 Act requires the Law Society to

make arrangements for securing that legal aid is available as required

under Part 1 of the 1974 Act.  Legal aid is not available at all in

respect of proceedings for defamation.

 

        Defamation

 

        Proceedings for damages for defamation may lie where words

have been used about a person which tend to lower him in the

estimation of right thinking members of society generally.  A person

aggrieved by allegedly defamatory statements may seek damages or an

injunction to prevent publication or repetition of the defamatory

statement.  Damages may be awarded on a basis that the plaintiff should

be compensated for the injury to his reputation caused by the

publication of the defamation about which complaint has been made.

 

        There are a number of possible defences to defamation

proceedings:

 

(i)     Justification - if a defendant can prove that the allegations

        which he made against the plaintiff were true, then no action

        will succeed against him.  The defendant need not prove the

        literal truth of the words but will succeed provided he

        establishes the substance or sting of the words complained of.

        Justification is a complete defence to any defamation action;

 

(ii)    Privilege - a defendant may also argue that the allegedly

        defamatory statement was privileged.  An example of absolute

        privilege is a statement made in the course of judicial or

        quasi-judicial proceedings.  In such circumstances the

        person enjoying the privilege cannot be compelled to produce

        the document or to repeat the statement (as the case may be)

        in evidence.  Furthermore, a statement made in pursuance of

        a legal, social or moral duty to a person who has a

        corresponding duty or interest to receive such a statement

        enjoys qualified privilege.  Such qualified privilege can only

        be overcome by the person bringing the defamation proceedings

        if it can be shown that the statement was made maliciously.

 

        Defamation proceedings are civil proceedings which may only be

brought, except in some exceptional cases, in the High Court.

 

2.      Admissibility

 

        (a) Res judicata

 

        The respondent Government submit that the application is

inadmissible as incompatible with the provisions of the Convention,

and in particular Article 6, or is manifestly ill-founded under

Article 6 para. 1 of the Convention.

 

        They contend that the applicant has already had his claim

brought before a court i.e. the right enunciated by the Court in the

Golder case (Eur.  Court H.R., Golder judgment of 21 February 1975

Series A, no. 18) has been satisfied.  The Tribunal decided the

question, inter alia, of whether the applicant's dismissal by the

local authority was unfair.  An appeal lies on a point of law from the

Tribunal to the Employment Appeal Tribunal.  The local authority was

the respondent in the proceedings before the Tribunal as it would be a

defendant in any defamation proceedings.  The Tribunal heard evidence

on the issues which the applicant now claims to be defamatory and

preferred the evidence given on behalf of the respondent authority to

that given by and on behalf of the applicant.  The detailed findings

of fact made by the Tribunal indicate that the matters which the

applicant now wishes to raise in defamation proceedings were

considered fully by the Tribunal which found against the applicant on

all counts.

 

        The respondent Government explain the principle of English

law that it is an abuse of the process of the court to initiate

proceedings in a Court of Justice for the purpose of mounting a

collateral attack on a final decision against the intending plaintiff,

which has been made by another court of competent jurisdiction in

previous proceedings in which the intending plaintiff could contest

the decision in the court by which it was made.  (Hunter v.  Chief

Constable of West Midlands and another (1981) HL 3 A ER 727.)  This

principle is not confined to the issues which the court is actually

asked to decide, but also covers issues or facts which are so clearly

part of the subject matter of the litigation and could so clearly have

been raised that it would be an abuse of the process of the court to

allow a new proceeding to be started in respect of them.  The

rationale of this principle is to ensure that there is a final end to

litigation and to prevent hardship on the individual by being vexed

twice for the same cause.

 

        The respondent Government contend that since the Belgian

Linguistic case (Eur.  Court H.R., Belgian Linguistic judgment of

9 February 1967, Series A no. 5) it is accepted that the Convention

does not guarantee a right of appeal against an initial determination

where there is no evidence or suggestion that those initial

proceedings were biased or were in any way themselves contrary to the

requirements of Article 6.  Article 6, by analogy, does not guarantee

successive rights of access to different tribunals for the purpose of

gaining further adjudications of the same facts or issues, and to

allow the applicant further access to a court in the circumstances of

his case would be an abuse of the process of the English courts and

would, in effect, guarantee a right under the Convention which does

not, in fact, exist.

 

        (b) Legal aid in defamation proceedings

 

        The respondent Government submit that the application is

incompatible with the provisions of the Convention and in particular

Article 6 para. 1 or is inadmissible as being manifestly ill-founded.

 

        Following the decision of the Court in the Airey case

(Eur.  Court H.R., Airey judgment of 9 October 1979 Series A no. 32) and

the Commission's decision on admissibility in X v. the United Kingdom

(No. 8158/78, Dec. 10.7.80, D.R. 21 p. 95) the respondent Government

contend that Article 6 para. 1 of the Convention leaves to the State a

free choice of the means to be used to provide an effective right of

access to the courts.  The Convention does not place an obligation on

the State to provide legal aid for every dispute relating to a "civil

right".  Furthermore, in operating any legal aid system, a balance must

be struck between the private interest of the individual litigant and

the public interest that public money should not be used to finance

suits or appeals which are improperly brought, or which stand no

reasonable prospect of success.  Under Sections 7 (5) and (5A) of the

Legal Aid Act 1974 an applicant may be refused legal aid if, in the

particular circumstances of the case, it seems unreasonable that he

should receive it.  The aim of this provision, to ensure that the

limited funds available for legal aid are not squandered on

undeserving applicants, was recognised in Application No. 8158/78

(supra) as legitimate both because it would be unreasonable for a

legally aided party to exploit that financial advantage against an

unaided opponent and because the result is to discourage further

litigation which would overburden the courts.

 

        (i)     The general law

 

        The respondent Government submit that, in view of the

principles enumerated above, it is inappropriate and unreasonable to

provide legal aid in the case of defamation proceedings.  Such

proceedings were excluded from the scope of the Legal Aid Act 1949

(the predecessor of the 1974 Act) on the basis that experience had

shown that they were among a class of actions in which there was most

room for bringing vexatious, frivolous, unmeritorious or unnecessary

claims.  Whilst it was accepted that not all actions for defamation

fitted such a description it was thought to be an inherently risky

form of action readily open to such abuse.

 

        In 1968 the Lord Chancellor's Advisory Committee reported on

the question of whether legal aid should be extended to defamation

proceedings.  It concluded that this step was not desirable since they

considered "the risk of unmeritorious applications to be a very real

one".  Although the experienced Law Society Committees could be

trusted not to grant legal aid in such cases the Advisory Committee

was "mindful of the need to keep down administrative costs".

Furthermore, the prospect of recovering damages in a defamation action

was slender save in the rare case of a meritorious action against a

rich defendant.

 

        The respondent Government submit that defamation proceedings

as a class are intrinsically precarious and uncertain and are more

likely to prove fruitless, trivial or ill-founded than other types of

proceedings.  Although there are mechanisms built into the legal aid

scheme to exclude unmeritorious proceedings, the outcome of defamation

proceedings is uniquely difficult to foresee and even if those

mechanisms were strengthened in defamation cases they would probably

not be effective in preventing the waste of money on ill-advised

proceedings.  The Convention, under Article 6 para. 1, cannot be said

to require the State to fund proceedings at the public expense which

are unmeritorious.

 

        (ii)    The applicant's case

 

        The respondent Government contend that the application is in

any event inadmissible as being manifestly ill-founded under Article

27 of the Convention since the applicant does not show that he has

been a victim of a breach of the Convention.

 

        Had legal aid been available for defamation proceedings the

test set out in Section 7 of the 1974 Act would have been applied.  In

all the circumstances the applicant would not have been able to

satisfy the statutory tests by persuading a General Legal Aid

Committee that he had reasonable grounds for bringing the proceedings.

 

        The Committee would take into account all the facts of the

case:- the proceedings before the Tribunal; the Tribunal's findings of

fact, and in particular the fact that they preferred the evidence

given on behalf of the respondent rather than that given on behalf of

the applicant, and the consequent likelihood that a later tribunal

would form the same view; the length of time that had passed since the

defamatory statements complained of and the difficulty of bringing

witnesses up to proof after such a delay; and finally the inherently

precarious and risky nature of defamation proceedings.

 

        In this final respect the Government emphasise that when

counsel advised the applicant in writing that it was impossible to say

that the chances of proving malice were better than fifty per cent he

did not consider at any length the possibility that a defence of

justification might be raised.  Also, his advice was given before the

Tribunal proceedings relating to the unfair dismissal claim had been

concluded.

 

        (c) The respondent Government's comments on admissibility

            in the light of the Commission's decision in Application

            No. 10871/84 (Dec. 10.7.86 unpublished)

 

        The respondent Government submit that in Application

No. 10871/84, the Commission was concerned with precisely the same

issue under Article 6 para. 1 of the Convention as arises in the

present case.  The respondent Government in particular draws attention

to the following paragraph of the Commission's decision in that case

(paragraph 4):

 

        "The next question to be determined is whether the

        unavailability of legal aid for defamation effectively denied

        the applicant access to court, as ensured by Article 6 of the

        Convention.  In this respect the Commission recalls that,

        unlike Article 6 para. 3 (c) which expressly provides for

        legal aid in criminal cases where necessary, the Convention

        does not guarantee such a right of assistance in civil cases.

        The means by which a State ensures effective access to civil

        courts is thus within its margin of appreciation (Eur.  Court

        H.R., Airey judgment of 9 October 1979, p. 15 para. 26).

 

        The Commission notes that even where legal aid may be

        available for certain types of civil action, it is reasonable

        to impose conditions on its availability involving, inter

        alia, the financial situation of the litigant or the

        prospects of success of the proceedings (cf.  No. 8158/78,

        Dec. 10.7.80, D.R. 21 p. 95).  The Commission considers,

        similarly, that, given the limited financial resources of

        most civil legal aid schemes, it is not unreasonable to

        exclude certain categories of legal proceedings from this

        form of assistance.  The fact that the English legal aid

        scheme excludes assistance in defamation proceedings has

        not been shown to be arbitrary in the present case."

 

 

        The respondent Government submit that the fact that the

English legal aid system excludes assistance in defamation proceedings

has similarly not been shown to be arbitrary in the present case, and

that the exclusion of legal aid for defamation is fully justified and

within the margin of appreciation left to States in this field.

 

        The respondent Government submit that the present applicant is

not a person who can claim that he has been denied access to a court.

 

        The applicant's allegations had already been considered twice

by a court in the proceedings in which he contended he had been

unfairly dismissed, and his evidence had been rejected.  On each

occasion the Tribunal, in deciding whether the applicant's dismissal

was fair, considered evidence on precisely the same matters as the

applicant now seeks to make the basis of his allegations of

defamation.  On each occasion the Tribunal preferred the evidence

given on behalf of the local authority, his previous employer,

(including that of the person against whom defamation is claimed) to

that given by and on behalf of the applicant.

 

        The respondent Government note that, although the applicant

sought counsel's opinion in 1978 on whether the allegations were

defamatory, this was scarcely encouraging.  In writing, counsel's

opinion states that he could not say "that the chances of proving

malice ... are better than 50%.  The respondent Government point out

that it was not until 25 July 1983, six years after the alleged

defamation and five years after the last decision by the Industrial

Tribunal, that the applicant commenced proceedings for defamation.

 

        The respondent Government submit that the applicant would not

have received legal aid even if legal aid had been available for

defamation proceedings.

 

        In considering Article 6 para. 1 of the Convention in

conjunction with Article 14 of the Convention the respondent

Government submit that the claim that the applicant has been

discriminated against on the ground of poverty in respect of his

rights under Article 6 para. 1 is, in the circumstances of the present

case, no more than a re-statement of the issue arising under Article 6

para. 1 taken alone.  In the Government's submission, it would be

appropriate for the Commission to find that, having decided the issue

on the basis of Article 6 para. 1 alone, no separate issue arises

under Article 14 and that the applicant's complaint, if any, of a

separate breach of Article 14 is manifestly ill-founded.

 

 

Submissions of the applicant

 

 

        Admissibility

 

        (a) Res judicata

 

        The applicant accepts the principle that subsequent

proceedings must not seek to mount a collateral attack on previous

proceedings which have already determined the question.  However, in

his judgment in Hunter v.  Chief Constable of West Midlands

Lord Diplock formulated the principle as being "that the identical

question sought to be raised has been already decided by a competent

court".  The applicant contends, relying upon various dicta of Lord

Diplock, that this necessarily raises the question of whether in both

sets of proceedings (i) the standard of proof was the same, and (ii)

the facts to be decided upon were the same.  If either of these

conditions is not satisfied, the restrictions on pursuing subsequent

proceedings cannot apply.

 

        On the question of standard of proof the applicant submits

that it is generally recognised that the rules of evidence of

industrial tribunals are not the same as those which bind the formal

courts.  This is a result of deliberate government policy designed to

render the industrial tribunals accessible to the layman by reducing

the technicalities involved.  Hence written statements, which would

not be admissible in a court of law, may be admitted in evidence at

the discretion of an industrial tribunal which may also accept hearsay

evidence which would be excluded from court proceedings.  The

applicant submits that the result of such differences of approach is

that the facts of his case would not have been investigated by the

Tribunal in the rigorous and thorough way in which they would be

considered by the High Court in defamation proceedings.

 

        On the subject of the particular facts to be decided by the

different tribunals the applicant contrasts the questions which the

Tribunal considered and those which the court would have to consider.

The Tribunal had to decide whether the applicant had been unfairly

dismissed, that is to say whether, at the time of the dismissal, the

employer acted reasonably (Schedule 1 para 6 (8) of the Trade Union

and Labour Relations Act 1974).  In contrast, in considering the

applicant's claim that he had been defamed, the defendant would have

to persuade the court that one of the defences to such a claim applied

- that is either that the statements complained of were true

(justification) or that the statements were protected by a privilege,

and that if such privilege were qualified there was no malice on the

part of the person making the statement.

 

        The applicant points out that in its decision the Tribunal

restricted itself to considering the matter according to the statutory

test set down to decide the question of unfair dismissal, and it did

not make any specific comment on whether or not it considered the

statements which found the allegation of defamation to be true.  The

applicant argues that, even if the tribunal had arrived at a

conclusion regarding the truth of the statements, the facts would have

been considered according to different rules of evidence and generally

in a different manner, and thus such a finding would not have been

conclusive under the rule in Hunter (supra).

 

        As regards malice, the applicant argues that this need not

have been considered by the Tribunal in considering whether the local

authority, through their employee, had acted reasonably.  The Chief

Executive could, for example, have been personally malicious but

nevertheless have acted reasonably in the employer's interest in

dismissing the applicant.  In any event, the Tribunal expressed no

view on the question of malice.

 

        The applicant points out, as a further example of the way in

which the procedure before the Tribunal differs from the proposed

defamation proceedings, that the respondent in the proceedings before

the Tribunal was the local authority while the primary defendant in

any defamation proceedings would be the Chief Executive personally.

 

        Having indicated the difference between the proceedings before

the Industrial Tribunals and the proposed defamation proceedings,

which differences he submits are sufficient to take the matter outside

the rule in Hunter, the applicant moreover contends that the fact that

the English courts would or might find against him in the defamation

proceedings, which he denies to be the case, is in any event

irrelevant since the Convention is concerned, inter alia, to limit any

restriction of liberty which national courts may seek to impose upon

the individual.  The Commission and the Court are thus not prevented

from considering a matter merely because the national court would not

consider it, and to the extent that the submissions of the respondent

Government rely upon such a formulation they should be disregarded.

 

        The applicant further contends that since legal aid was not

available before the Tribunal the present application is relevant

under the Convention in relation to the question of the availability

of legal aid irrespective of any claim of res judicata.

 

        (b) Legal aid in defamation proceedings

 

        The applicant accepts the right of Governments to devise a

system to prevent frivolous or vexatious cases being litigated at the

public expense.  However, he does not accept the respondent

Government's argument that such a right must result in the exclusion

of defamation proceedings from a legal aid system.

 

        The local authority would be involved in any defamation

proceedings as a defendant and cannot be classified as financially

exploitable as the respondent Government would seem to imply.  He

submits in any case that the argument concerning the exploitation of a

defendent is referable to legal aid for any type of action, and thus

cannot further the conflict over the desirability of its availability

for defamation proceedings.

 

        (i)     The general law

 

        The applicant draws a parallel with English law in which it is

recognised that where a discretion is given to a domestic authority,

that authority should not fetter such discretion by laying down

universal rules totally unrelated to the facts of individual cases.

He maintains that the respondent Government's policy of not permitting

legal aid to be available for any defamation proceedings prevents them

from doing that which the Convention intends them to do in relevant

cases, namely permit the defence of each and every civil right.

 

        He further submits that the respondent Government's attitude -

that it is frivolous and vexatious for anybody ever to take

proceedings in defamation - is similar (although clearly not as

serious), as a decision by the respondent Government to abolish

totally the right to sue for defamation.  Such subjective reasoning

could enable the Government to exclude large areas from the protection

provided by the Convention.

 

        Whilst the applicant accepts that the refusal of access to

legal aid is a lesser infringement on civil rights than the withdrawal

of the right itself, he nevertheless maintains that the selective use

of legal aid could operate as a means of promoting practices which are

contrary to the spirit of the Convention, e.g. if legal aid was

granted only to Government employees.

 

        The applicant complains that the Government's decision to

deny legal aid for all defamation proceedings is "arbitrary" and

thus contrary to the criteria laid down in the Commission's decision

in X. v the United Kingdom (No. 8158/78, Dec. 10.7.80, D.R. 21 p. 95).

 

        He considers that the respondent Government is precluded from

arguing that the law of defamation is basically unsound for three

reasons.  The Government maintain that law in force and must therefore

be considered to approve of its terms; the right of protection of

reputation is recognised by Article 10 para. 2 of the Convention; and

the Court accepted in the Golder case (Eur.  Court H.R., Golder

judgment of 21 February 1975 Series A, no. 18) the need for access to

the courts to institute proceedings for defamation.  Furthermore, the

result of legislation in the United Kingdom is to recognise the

importance of defamation in two respects.  It is one of only four

types of civil action where a trial must be before a jury and not a

judge sitting alone (Section 69 Supreme Court Act 1981 and Section 66

County Courts Act 1984), and it is one of four (different) civil

actions which can only be tried by a County Court if all parties to

the action are in agreement (Sections 15 and 18 County Courts Act

1984).  The applicant further notes that members of various British

Governments including a former Prime Minister and the current

Attorney-General have themselves had no hesitation in bringing actions

in defamation.  In the absence of specific proposals from the

respondent Government for the repeal of the law of defamation the

Commission is entitled to presume that the right to invoke this

legislation in defence of one's reputation is desirable.

 

        The respondent Government's references to the Lord

Chancellor's Advisory Committee Report of 1968 clearly show that the

Committee's conclusion was arrived at on economic rather than social

grounds.  The applicant claims that the European Convention is not

concerned with economic grounds where these conflict with human

rights.

 

        The applicant emphasises that the respondent Government make

no reference to the Committee on Defamation ("the Faulks Committee")

whose Report is published Cmnd 5909.  This Committee reported in 1975

that the absence of legal aid in defamation was anomalous and it

recommended that legal aid be available with certain safeguards to

avoid abuse of such a right.  The applicant argues that since the

findings of the Faulks Committee, which are in contradiction to those

of the other Government Committees referred to by the respondent

Government, were prompted by considerations of principle rather than

finance, they are a more persuasive authority in relation to the

Convention.  He further contends that the omission by the respondent

Government of any reference to the Faulks Committee shows both a lack

of confidence in its own case and a dishonest attitude towards

submissions to the Commission.  He urges that the application should

be declared admissible regardless of any other consideration in order

to prevent the risk of the Commission's complaints procedure from

being undermined by the possibility of disingenuous representations

from Governments.

 

        The respondent Government also failed to refer to the Royal

Commission on Legal Services Final Report (Cmnd 7648) which was

produced in October 1979.  At paragraphs 13.69 and 13.70 the Royal

Commission considers the scope of the legal aid scheme in the United

Kingdom.  The Commission expressed its agreement with the earlier

recommendation made by the Legal Aid Advisory Committee that legal aid

should be made available for defamation proceedings.

 

        Concerning the claim that defamation proceedings are often

frivolous, trivial and ill-founded the applicant compares matrimonial

proceedings, which are attended by the same risks and which

nevertheless come within the legal aid scheme.  If the respondent

Government are doubtful of the ability of the Legal Aid Committees to

deal with applications for legal aid in defamation proceedings, then

it follows that there must be some doubt about their ability to carry

out their tasks in relation to other applications on legal aid

matters.  The respondent Government are thus irresponsible in

continuing to entrust the Committees with such a task.  Insofar as the

respondent Government are also of the view in their submissions that

such Committees could properly carry out their tasks the applicant

argues that they must be required to elect which of these opposite

views they wish to adopt.

 

        (ii)    The applicant's case

 

        The applicant contends that in view of the prima facie

violation of his rights under the Convention the Commission and the

Court should not be expected to undertake detailed administrative and

quasi-judicial tasks in investigating whether or not the applicant

would be likely to receive legal aid in the event of its being

available.  This application should be determined according to the

general principles involved.  The respondent Government should then be

required to remedy any violation by means of whatever internal

administrative procedures they choose.

 

        In so far as the respondent Government complain of the

applicant's delay in seeking to institute defamation proceedings this

was directly caused by the absence of legal aid.  Part of the delay

has also been caused by reasonable, if unsuccessful, attempts made by

the applicant to settle the matter by eliciting an apology from the

Chief Executive of the local authority.  The applicant also complains

that he is the victim of continuing defamation which serves to

minimise the effect of any delay.

 

        As regards the matters to be taken into account by a Legal Aid

Committee in considering whether or not to grant legal aid, the

applicant accepts that the likely success of the proposed action is a

relevant consideration.  However, he emphasises that legal aid is not

limited, either in theory or in practice, to cases where there is a

more than fifty per cent chance of success.  By analogy with the right

of a person charged with a criminal offence to be given free legal

assistance where the interests of justice so require and he has

insufficient means (contained in Article 6 para. 3 (c)), the

Legal Aid Committee should be all the more ready to grant him legal

aid since he seeks to vindicate himself by means of a civil action of

the imputation that he has been guilty of a criminal offence.

 

        (c) The applicant's comments on admissibility in the light

            of the Commission's decision in Application No. 10871/84

            (Dec. 10.7.86 unpublished)

 

        (i)     The applicant's further submissions under Article 6

 

        The applicant cites the case of Airey (Eur.Court H.R.,

Airey judgment of 9 October 1979, Series A no. 32) as authority for

the need for legal representation in certain disputes relating to

civil rights.

 

        The Commission in its decision on the admissibility of

Application No. 10871/84 refers to the fact that the Court in the

Airey case recognised that the means by which a State ensures

effective access to civil courts is within its margin of appreciation

(paragraph 26).  The Commission further noted that even where legal

aid may be available for certain types of civil actions, it is

reasonable to impose conditions on its availability involving, inter

alia, the financial situation of the litigant or the prospects of

success of the proceedings, and that given the limited financial

resources of most civil legal aid schemes, it is not unreasonable to

exclude certain categories of legal proceedings from such assistance.

The applicant does not argue against this and states that there may

well be types of legal proceedings which by their nature, taking into

account, for example, the informality of the forum in which they are

instituted, do not require the provision of legal aid.  Such

proceedings would fall outside the category of cases referred to in

the Airey case, where by virtue of the complexity of the procedure

or of the case, and the fact that assistance is indispensable for an

effective access to court, the State is compelled under Article 6

para. 1 to make provision for legal aid.  It is submitted, however,

that in the light of the Airey case, the guiding principle must be

that the provision of legal aid is required by Article 6 para. 1 in

cases "when such assistance proves indispensable for an effective

access to court ..." (paragraph 26), and can only be excluded in

respect of proceedings where such assistance is not necessary for the

effective conduct of a litigant's case.

 

        The applicant submits that legal aid is indispensable in

defamation proceedings for effective access to court due to the

complexity of the substantive law, the High Court being, except in

some exceptional cases, the forum for the hearing, and the

incompatibility of the emotional involvement of the applicant with the

need for objectivity required by advocacy.

 

        The respondent Government in their Observations argue that

defamation proceedings should be excluded from the legal aid scheme on

the ground that they are more likely to prove fruitless, trivial or

ill-founded than other types of proceedings.  This is an argument,

however, which has been rejected again and again as a reason for

excluding defamation proceedings from the legal aid scheme by a number

of independent and authoritative bodies within the United Kingdom,

which support a change in the law so as to include defamation cases

under the scheme.  Amongst others, the applicant refers to the Faulks

Committee and the Royal Commission on Legal Services and also to the

recommendation made by the Bar, the Law Society, and "Justice" (the

British section of the International Commission of Jurists).

 

        The applicant submits that the recommendation that legal aid

be extended to defamation actions, strongly indicates that, by failing

to change the law in accordance with the unanimous recommendations

made, the respondent Government have exceeded their margin of

appreciation under Article 6 para. 1 of the Convention.

 

        (ii)    The applicant's further submissions under

                Article 14

 

        The applicant complains that the non-availability of legal aid

for defamation proceedings constitutes a breach of Article 6 read in

conjunction with Article 14 of the Convention because its effect is to

discriminate on the ground of the applicant's lack of financial means

in the enjoyment of his right of access to the courts for the fair

determination of his civil rights to vindicate his reputation and good

name.  Its effect is also to discriminate against him as a private

individual compared with public officials (i.e. police officers) who

receive legal aid from public funds.

 

        The applicant states that litigation in the High Court is

expensive and defamation proceedings in particular are notoriously

complex and require the employment of expensive specialist counsel in

order to have a real chance of success, and in the absence of legal

aid, success is a realistic possibility only for the wealthy.

 

        The applicant states that the respondent Government's failure

to provide legal aid in defamation actions thus constitutes an

unjustifiable difference of treatment on the ground of property or

means within the context of the right of access to a court guaranteed

by Article 6 para. 1 read in conjunction with Article 14 of the

Convention.

 

        The applicant states that the unfairness and discriminatory

nature of the present situation is heightened by the fact that certain

categories of public employees, but not private persons, do in fact

have access to State funds for the purpose of bringing or defending

defamation proceedings.  With regard to the police, for example, it is

specifically provided by Statutory Instrument (No. 583 of 1977) made

under the Police Act 1964 that funds held by the Police Federation

(such funds being partly provided by the State) may be used to defray

legal charges incurred by a member of the Federation in the bringing

of a defamation action.  Quite apart from this provision there exists

a practice whereby the local police authority or the Home Office

(which is the police authority for the Metropolitan Police Force) in

certain cases use State funds to finance the institution of defamation

proceedings by police officers.  In Section 48 of the Police Act 1964

provision is made for the payment by the local police authority or the

Home Office of any damages awarded against or costs incurred by a

police officer in defending a tort action, which includes a defamation

action.

 

        The difference of treatment is especially unjustifiable since

the effect of making legal aid available to police officers in

defamation cases is to deter members of the public from complaining

about misconduct by members of the police service.  It is submitted

that, by granting financial assistance to public officers, while

denying it to private individuals, to protect their rights to

reputation in legal proceedings, the respondent Government is

discriminating unjustifiably as between public servants and ordinary

citizens.  Were the applicant a police officer, his position with

regard to the bringing of a defamation action would be quite

different.

 

        A similar example is the capacity of the British Broadcasting

Corporation, with its publicly funded income, to defend defamation

actions with virtual immunity from the financial consequences while

the individual with modest means, such as the applicant, may have his

reputation ruined, lose his job and have no means of redress.

 

        For these reasons, it is submitted that the distinctions based

on property or means or private status created in the context of the

right of access to a court by the denial of legal aid for defamation

actions have no objective and reasonable justification, and that the

principle of equality of treatment guaranteed by Article 14 has

accordingly been violated by the respondent Government.

 

        (iii)   The present application compared with

                Application No. 10871/84

 

        The applicant points out that in the above mentioned

application the Commission was not referred to the views of the

various independent and authoritative bodies previously referred to,

all of which have recommended that legal aid in the United Kingdom be

extended to defamation proceedings.  Furthermore, the applicant's

submissions that the respondent Government is in violation of Article

14 read in conjunction with Article 6 of the Convention were not put

before the Commission.

 

        The applicant states that the facts of the two cases are very

different.  The applicant in the other case did achieve a settlement

of some £5,000, as well as receiving a written apology from the

defendants in the libel suit commenced by him.  The respondent

Government's main submission on the issue of Article 6 para. 1 in

Application No. 10871/84 seems to have been that, as a matter of

fact, that case could be distinguished from the Airey case

because that applicant was not denied effective access to the court in

the same way as Mrs.  Airey, who was totally unable to get an action

for judicial separation on its feet without the financial assistance

of legal aid.  This argument appears to have been accepted by the

Commission in its decision in Application No. 10871/84.  In paragraph

4 of its decision the Commission states that:

 

        "... the facts of the case show that the applicant

        did have effective access to court as a litigant

        in person, albeit inexperienced.  This is borne

        out by the £5,000 settlement of the applicant's

        defamation claim ..."

 

 

        The applicant submits that his case falls into the same

category as that of Mrs.  Airey and is very different from Application

No. 10871/84.  Being unable to get legal aid, the applicant has not

served a writ (although one has been issued), let alone a Statement of

Claim, and the position is therefore that he has been deprived,

through a lack of means, of any real possibility to institute and

pursue proceedings with the aim of clearing his name.  In the

applicant's case there has been no settlement, nor any apology from

the defendants in the action contemplated by him.  Unlike the

applicant in Application No. 10871/84, the present applicant has

received no benefit whatever from the availability under United

Kingdom law of a cause of action in defamation.  The facts of the

present case show, therefore, that as an unaided litigant in person,

the applicant has not had effective access to a court within the

meaning of Article 6 para. 1 of the Convention.  Were he a person of

financial means or a police officer he would have had effective

access, in the latter case with the benefit of financial assistance

from the State.

 

        (iv)    Legal advice received by the applicant as to the

                likelihood of success in defamation proceedings

 

        The respondent Government have raised the issue of the

applicant's chances of success in defamation proceedings instituted by

him, and the Commission in its letter of 26 November 1986 invited the

applicant to clarify the position with regard to the legal advice he

received.

 

        In a written Opinion dated 1 September 1978 specialist

defamation counsel, Mr.  Richard Rampton, expressed his view that in

order to succeed in a defamation action, the applicant would have to

show malice on the part of the maker of the alleged defamatory

statement.  He advised that:

 

        "taken overall, the foregoing matters do, on the

        face of it, constitute a fairly strong case that

        (the maker of the statement) was malicious.  But

        a number of them require further amplification

        or confirmation ..."

 

 

        Without obtaining further information Mr.  Rampton could not

say that the chances of proving malice against the maker of the

statement at a trial were better than 50%.  Once further information

was obtained Mr.  Rampton advised that a jury would be likely to

conclude on a balance of probabilities (the necessary civil burden of

proof), that this maker of the statement was motivated by malice.  In

a letter to the applicant dated 26 April 1984, Mr.  Rampton referred to

the view he had expressed in conference, stating that although he did

not remember it, he could "well believe that you (the applicant) were

able to satisfy me that a jury would be likely to conclude, on the

balance of probabilities, that (the maker of the statment was

motivated by malice)."

 

        The applicant has recently obtained a further Opinion on the

merits of his case by The Rt.  Hon.  Leon Brittan Q.C., M.P. (a leading

defamation specialist as well as a former Home Secretary in the

present Government).  Not having the benefit of seeing the applicant

in conference, Mr.  Brittan agrees with the conclusion reached by

Mr.  Rampton and goes on to say:

 

        "(I can) readily appreciate that Mr.  Rampton may have been

        able ... to clarify a number of the queries that he

        raised in his Opinion and to conclude that  a jury

        would be likely to find, on the balance of probabilities,

        that (the maker of the statement) was guilty of malice."

 

THE LAW

 

1.      The applicant complains that he has been denied access to

court for the determination of his civil rights as no legal aid is

available under the Legal Aid Act 1974 to enable a person to bring a

defamation action.  He complains that the non-availability of legal

aid effectively denies him access to court because he has insufficient

means to instruct a lawyer to represent him and insufficient training

and legal knowledge to pursue his claim unrepresented.  He further

claims that he is discriminated against on the ground of poverty from

pursuing his civil rights.

 

        As regards his primary complaint of a denial of access to the courts

the applicant invokes Article 6 para. 1 (Art. 6-1) of the Convention which

provides, inter alia:

 

        "In the determination of his civil rights and obligations

        ... everyone is entitled to a fair ... hearing ... by an

        independent and impartial tribunal established by law."

 

        It is established, following the Golder case (Eur.  Court

H.R., Golder judgment of 21 February 1975, Series A no. 18), that

Article 6 para. 1 (Art. 6-1) guarantees a right of access to court for

the purposes of the determination of an individual's "civil rights".

Furthermore, the Commission has repeatedly stated that the right to

enjoy a good reputation is a civil right.  This line of case law is

derived from No. 808/60, Isop v.  Austria, Dec. 8.3.62, Yearbook 5 p.

116, where the Commission held that "the right to enjoy a good

reputation and the right to have determined before a tribunal the

justification of attacks upon such reputation must be considered to be

civil rights within the meaning of Article 6 para. 1 (Art. 6-1)".  This

case law was confirmed by the Court in its judgments in the Golder

case (supra) and the Minelli case (Eur.  Court H.R., Minelli judgment

of 25 March 1983, Series A no. 62) (as also by the Commission in No.

7116/75, X. v.  FRG, Dec. 4.12.76, D.R. 7 p. 91; and No. 8366/78, X.

v.  Luxembourg, Dec. 8.3.79, D.R. 16 p. 169).

 

        The present case concerns the scope and content of the right

of access to court.  In particular the applicant complains about the

non-availability of legal aid to facilitate access to court in

defamation proceedings.

 

        The Commission recalls that it is for the domestic authorities

to decide upon the way in which the obligations imposed by the

Convention are to be respected.  The Convention organs retain the

ultimate control of whether the chosen method which the domestic

authorities use complies with the Convention in a particular case.

 

         Article 6 para. 1 (Art. 6-1) does not specifically guarantee

the right to free legal aid in relation to the right of access to

court in the determination of an individual's civil rights and

obligations.  This is to be contrasted with Article 6 para. 3 (c)

(Art. 6-3-c) which provides:

 

        "Everyone charged with a criminal offence has the following

        minimum rights:

        ...

        (c)  to defend himself in person or through legal assistance

        of his own choosing or, if he has not sufficient means to pay

        for legal assistance, to be given it free when the interests

        of justice so require".

 

        However, in its judgment in the Airey case (Eur.  Court

H.R., Airey judgment of 9 October 1979 Series A no. 31) the Court

decided that the right of access to court guaranteed by Article 6

para. 1 (Art. 6-1) is a right which is "practical and effective" and

not merely "theoretical and illusory".  The Court held that, as

regards civil litigation, despite the absence of a provision

equivalent to Article 6 para. 3 (c), (Art. 6-3-c) Article 6 para. 1

(Art. 6-1) might be at issue.  It stated:

 

        "Article 6 para. 1 (Art. 6-1) may sometimes compel the State to provide

        for the assistance of a lawyer when such assistance proves

        indispensable for an effective access to court either

        because legal representation is rendered compulsory, as is

        done by the domestic law of certain contracting states for

        various types of litigation, or by reason of the complexity

        of the procedure or of the case" (para. 26).

 

        The Court emphasised that the Convention did not require the

grant of legal aid in all civil cases.  It was concerned to ensure

"that an individual should enjoy his effective right of access to the

courts in conditions not at variance with Article 6 para. 1 (Art. 6-1)"

(ibid. para. 26).  The means to be used towards this end are within

the discretion of the Contracting State, and it is not in every case

that free legal aid will be appropriate or necessary.

 

        Having considered the distinction between the terms of Article

6 para. 3 (c) (Art. 6-3-c), which guarantees in terms the right to

free legal aid in criminal proceedings in certain circumstances, and

Article 6 para. 1 (Art. 6-1), which makes no reference to legal aid,

the Commission considers that the circumstances in which an

entitlement to legal aid will be necessary to satisfy the requirements

of Article 6 para. 1 (Art. 6-1) are circumscribed.  The High

Contracting Parties specifically undertook to guarantee free legal aid

where the interests of justice so require in criminal proceedings.  It

must be assumed that the omission of such a right in relation to civil

proceedings was equally deliberate.  For this reason the right

enunciated in the judgment of the Court in the Airey case cannot be

comparable in its comprehensiveness to that guaranteed under Article 6

para. 3 (c) (Art. 6-3-c).  This also follows from the fact that the

right under Article 6 para. 1 (Art. 6-1) to a fair hearing must be

determined by reference to the particular facts and circumstances of

an individual case.

 

        The Commission recalls its recent decision on the

admissibility of Application No. 10871/84 (Dec. 10.7.86 unpublished)

in which the lack of legal aid in defamation proceedings was also at

issue.  The Commission in that case noted:

 

        "Even where legal aid may be available for certain

        types of civil action, it is reasonable to impose

        conditions on its availability involving, inter alia,

        the financial situation of the litigant or the prospects

        of success of the proceedings (cf.  No. 8158/78,

        Dec. 10.7.80, D.R. 21 p. 95).  The Commission considers,

        similarly, that, given the limited financial resources

        of most civil legal aid schemes, it is not unreasonable

        to exclude certain categories of legal proceedings from

        this form of assistance.  The fact that the English legal

        aid scheme excludes assistance in defamation proceedings

        has not been shown to be arbitrary in the present case"

        (para. 4).

 

        In the Airey case the applicant sought to obtain a decree

of judicial separation from her husband on the grounds of his alleged

physical and mental cruelty to her and their children.  She could not

afford the services of a solicitor and the procedure in the Irish High

Court was sufficiently complicated to make it impossible for her to

conduct the application in person.  In the present case the applicant

wishes to bring an action for defamation against his ex-employer.  The

Commission accepts that the applicant has insufficient means to pay

for the services of professional legal advisers and that it is

unreasonable to expect him to undertake defamation proceedings

unrepresented because such proceedings, which will normally be dealt

with in the High Court, are extremely complex as regards both formal

pleadings and procedure.  The Commission nevertheless considers

that the present case is to be distinguished from the Airey case.

 

        The general nature of a defamation action, being one protecting

an individual's reputation, is clearly to be distinguished from an

application for judicial separation, which regulates the legal

relationship between two individuals and may have serious consequences

for any children of the family.  Defamation proceedings are moreover

inherently risky and it is extremely difficult accurately to predict

their outcome.

 

        The Commission recognises, furthermore, that the nature of a

claim of defamation is such that it may easily be open to abuse.  As a

result there is an objective risk that proceedings for defamation

may be unreasonably or abusively pursued.  This is reflected in the

common practice of Member States of the Council of Europe to adopt

special procedures to guard against such abuses.

 

        The Commission notes the legal requirements in the United

Kingdom to establish a case in defamation, the requisite burden of

proof and the defences which may be raised.  In particular, the

Commission notes that it is an absolute defence for a respondent to

prove the veracity of the statement forming the basis of the alleged

defamatory statement, and in cases where the respondent may claim

qualified privilege, such as in this case, such qualified privilege

can only be overcome by the person bringing the defamation proceedings

if it can be shown that the statement was made maliciously.

 

        In the present case the question whether the applicant's

dismissal was unfair has already been examined by the Tribunal and in

the proceedings before it the applicant had the opportunity of

presenting his arguments as to why he considered his dismissal to be

unfair and to offer evidence on this subject.  The burden of proof at

the hearing was on the ex-employers to identify the reason, or if

there was more than one, the principal reason, for the applicant's

dismissal.  They were also required to show that it was a reason such

as would justify the dismissal of an employee holding the position

which the applicant held, as required by paragraph 6(8) of the First

Schedule of the Trade Union and Labour Relations Act 1974.  The

Tribunal found this burden of proof satisfied and held that the

applicant's dismissal was "reasonable" as required by the 1974 Act.

 

        The Tribunal's findings were quite clear, namely:

 

        "On the evidence that we have heard and having considered

        the documentary evidence adduced, we consider that (the

        ex-employers) had reasonable grounds to form the view that

        (the applicant) had in fact made wrongful claims for journeys

        which he had undertaken by car and that there was sufficient

        evidence for (the ex-employers) to reach the view that (the

        applicant) had taken holidays to which he was not entitled;

        that the holiday sheet had been altered in order to facilitate

        taking of those holidays.  ...  We consider and so find that

        the principal reason for his dismissal was (the ex-employers')

        belief that (the applicant) had submitted wrongful car expense

        claims.  For a man holding the position which (the applicant)

        held this would constitute, and we so find, gross misconduct;

        it would justify (the ex-employers) summarily dismissing

        him."

 

        The Tribunal then went on to state:

 

        "We certainly dismiss any suggestion which has been introduced

        by the applicant, that his dismissal had been engineered

        politically or that (the Chief Executive) wished to be rid of

        him.  The true position is that (the applicant's) dismissal

        was brought about for the reasons referred to above; they were

        reasons that related solely to his conduct and capability.  He

        was given every opportunity to give explanations.  Those

        explanations were not, in the view of (the Chief Executive)

        satisfactory.  We consider that (the Chief Executive) was

        fully entitled, having regard to the evidence before him,

        to reach and form that view."

 

        Although the Tribunal did not specifically consider the

allegations of defamation which the applicant seeks to bring before

the High Court it did hear evidence from various parties relating to

the dismissal.  Whilst the Commission accepts that the evidence heard

by the Tribunal was applied to the question of whether the dismissal

was "reasonable" it notes the Tribunal's finding that, having heard

witnesses for the present applicant and for his ex-employers, there

were reasonable grounds upon which to form the view that the applicant

had made wrongful expense claims and taken holidays to which he was

not entitled.

 

        The Commission notes the evidential burden in the proceedings

before the Tribunal which is to be contrasted with that required of

the applicant in defamation proceedings.  Whilst it is not possible to

make a direct comparison, the Commission notes the difficulties that

the applicant would have in trying to establish and prove his claim in

a defamation action.  It was on the reasonableness of the Chief

Executive's belief of the veracity of the statement he made concerning

the applicant's wrongful expense claims and the taking of holidays to

which he was not entitled, that the Tribunal found in favour of the

ex-employers, and it would also be, in all likelihood, on the veracity

of this statement that the claim in defamation would fall to be

decided.  The Commission notes that in the proceedings leading to the

first decision the Tribunal quite clearly preferred the evidence of

the ex-employers and the Chief Executive to that of the applicant.

The applicant has not produced any evidence to show that the Tribunal

was wrong in its finding on the evidence and he has not produced any

evidence to show that before any other court, his evidence would be

favoured over that of his ex-employers or the chief executive.

 

        The Commission also notes that the advice received by the

applicant from his counsel did not address the question of any defence

being raised on the basis of the truth of the alleged defamatory

statements.  Even if the court found that there was no truth in the

alleged defamatory statement, the applicant would, in defamation

proceedings, have the further task of overcoming the defence of

qualified privilege and establishing that the chief executive was

motivated by malice in making the statement.

 

        Having considered the proceedings before the Tribunal, the

evidence which was put forward, the findings on the facts, the

evidential burden required, also considering the evidence that the

applicant would need to raise in defamation proceedings and the

defences of veracity of the statement and qualified privilege, on the

facts of this case, the Commisison considers that the applicant has

not shown that he was hindered in his access to court by the

non-availability of legal aid as he did, in fact, have a hearing

which, although it did not specifically consider the allegation of

defamation, considered the same substantive issues as would have been

considered in defamation proceedings.

 

        The Commission considers that the non-availability of legal

aid for defamation proceedings in the present case has not therefore

deprived the applicant of access to court contrary to Article 6

para. 1 (Art. 6-1) of the Convention.

 

        It follows that this aspect of the applicant's complaint is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

 

2.      The applicant also invokes Article 14 (Art. 14+6-1) of the Convention

in conjunction with Article 6 para. 1 (Art. 6-1).  Article 14 (Art. 14)

provides:

 

        "The enjoyment of the rights and freedoms set forth in this

        Convention shall be secured without inequality on any ground

        such as sex, race, colour, language, religion, political or

        other opinion, national or social origin, association with a

        national minority, property, birth or other status."

 

        The Court has held in its judgment in the Belgian Linguistic

case (Eur.  Court H.R., Belgian Linguistic judgment of 23 July 1968,

Series A no. 6) that, although the guarantee laid down in Article 14

(Art. 14) has no independent existence, "a measure which in itself is in

conformity with the requirements of the article enshrining the right

or freedom in question may however infringe this article when read in

conjunction with Article 14 (Art. 14) for the reason that it is of a

discriminatory nature".

 

        The Court went on to state that a difference in treatment

will be discriminatory if it has "no objective and reasonable

justification", that is if it fails to pursue a "legitimate aim" or

there is "no reasonable relationship of proportionality between the

means employed and the aim sought to be realised" (ibid. p. 34

para. 10).

 

        The applicant alleges that the absence of legal aid for

defamation proceedings discriminates against him on the ground of his

poverty and on the ground of the particular civil right which he

seeks to defend.  The effect of the non-availability of legal aid is

that he cannot afford to pay a lawyer to represent him.  The absence

of legal aid would not have the same effect on a more wealthy person

because he would nevertheless have the means to instruct a lawyer to

represent him, thereby improving his chance of success in any legal

proceedings as compared to that enjoyed by an unrepresented applicant.

Similarly, a litigant in proceedings other than defamation might be

eligible for legal aid.

 

        The applicant further alleges that certain individuals, such

as members of the police service, are entitled to use public money to

defend their reputations in defamation proceedings and that this

amounts to further discrimination.

 

        On the facts of the present application the Commission has

already expressed its opinion that the guarantees provided by Article

6 para. 1 (Art. 6-1) have not been breached.  Having regard to the

particular terms of the guarantees provided by Article 6 para. 1

(Art. 6-1), and in the absence of any improper aim or disproportionate

or differential treatment, the Commission does not therefore consider

that there is any breach of Article 14 (Art. 14+6-1) of the Convention

read in conjunction with Article 6 para. 1 (Art. 6-1).

 

        It follows that this aspect of the applicant's 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)

 

 

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