FIRST SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 3338/05
by PROCEDO CAPITAL CORPORATION
against Norway
The European Court of Human Rights (First Section), sitting on 29 April 2008 as a Chamber composed of:
Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Khanlar Hajiyev,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and André Wampach, Deputy Section Registrar.
Having regard to the above application lodged on 13 January 2005,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Procedo Capital Corporation, is a limited liability company registered in and incorporated under the laws of the Republic of Panama. It is represented before the Court by Mr M. Elvinger, a lawyer practising in Luxembourg. The Norwegian Government (“the Government”) are represented by Mrs E. Holmedal, Attorney at the Attorney General’s Office (Civil Affairs), as their Agent.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Factual background to the case
The present application has its background in a civil dispute over securities dealings between Procedo Capital Corporation (hereinafter referred to as “Procedo”) and a Norwegian securities broker, Sundal Collier, based in Norway. In October 1998 the latter brought proceedings against the former before Oslo City Court (tingrett), requesting an order that the applicant company pay an amount of 18,481,808 Norwegian kroner plus interest in respect of shares Sundal Collier had purchased for the applicant company. The applicant company, which received the summons in December 1999, contested the action and brought a counter action requesting an order that Sundal Collier pay compensation, the amount of which was to be determined in subsequent proceedings, with regard to losses sustained by the applicant company due to information and advice received from Sundal Collier.
By a judgment of 4 January 2002, the City Court ordered the applicant company to pay Sundal Collier NOK 18,131,808 plus interest and released the latter of any claim. Each party was to bear its own costs.
The applicant company then lodged an appeal with the Borgarting High Court (lagmannsrett).
2. Appointments of lay members by the High Court at the preparatory stage
At the preparatory stage the High Court decided in view of the financial character of the subject matter to sit with two lay judges with expertise in financial matters and invited the parties to propose candidates. The applicant did not make any proposal. Sundal Collier proposed Mr A., Economist, and the applicant did not object within the set time-limit.
On 14 March 2003 the High Court appointed Mr A. as lay member, after having asked him about impartiality and informed the parties about the prospective appointment of a second lay member, Mr D., Economist. However, since it turned out that Mr D. did not satisfy the impartiality requirements, he was replaced by Mr B, Chartered Accountant.
In the meantime, the applicant appealed against the High Court’s decision of 14 March 2003 to the Appeals Leave Committee of the Supreme Court disputing that it was necessary and desirable to appoint lay judges in general and contesting the procedure whereby Mr A. had been appointed on the proposal of Sundal Collier and not on a joint proposal by the parties. The applicant raised questions about whether his professional background made Mr A. suitable as expert in the case. On 15 May 2003 the Committee upheld the High Court’s decision finding that the appeal had no prospects of success.
3. Oral hearing before the High Court
The High Court held an oral hearing over 20 days between 14 October and 17 November 2003, at which each party was represented by counsel and an assistant lawyer.
There were no objections to the composition of the High Court at the opening of the hearing on 14 October 2003 (section 115 of the Administration of Administration of Courts Act - domstolloven - Law of 13 August 1915 no. 5). On that date and on 15, 16 and 20 October 2003 the lawyers for the applicant made their opening statements. In the morning of 21 October 2003 counsel for the applicant continued and entered his plea. The assistant lawyer for the respondent began his opening statement, whereupon lay member Mr A. informed the parties that in his capacity as an employee of PricewaterhouseCoopers, he had been involved in assignments for ABG Sundal Collier and First Securities in connection with the listing of a company on the stock exchange. The parties gave notice that they wished to consider this matter in further detail and to revert later to the question whether Mr A. should be able to sit in the case.
Before adjourning the proceedings that day, the Presiding Judge provided the parties with further information on the question of the dividing of the proceedings with regard to a first point of the cross-action. The parties were asked to give their final comments on this question before counsel for the respondent commenced on his opening statement in the cross-action.
When the proceedings resumed on the following day, on 22 October 2003, the Presiding Judge opened by taking up the question of the competence of Mr A. in response to pleadings on this subject submitted by the applicant’s lawyer. Mr A. then provided further details of his relationship with ABG Sundal Collier. Since some of the questions raised by the applicant required further investigations on ABG Sundal Collier’s part, it was agreed that the issue of the lay member’s ability to take part in the case should be postponed until the following day.
The assistant lawyer for the respondent then continued his opening statement and entered the pleas.
The Presiding Judge informed the parties that the Court intended to rule on the various procedural questions raised in the case the next day.
When the proceedings resumed in the morning the following day, on 23 October 2003, counsel for the applicant asked that Mr A. be absent from the proceedings during the exchanges on the question of his competence. The High Court adjourned briefly to consider the question and, when the proceedings resumed, decided that Mr A. should not take part in the continuing exchanges on the question.
Counsel for each of the parties then argued the question of competence with reference to section 108 of the Administration of Courts Act.
The parties were given the opportunity to argue their views on the question of division pursuant to Article 98 (2) of the Code of Civil Procedure.
The High Court adjourned the proceedings until the afternoon and then withdrew to deliberate and vote on the questions of competence and division in camera.
On the same date, 23 October 2003, the High Court delivered two decisions, signed by the three professional judges and one of the lay members but not by lay member Mr A. who did not take part.
The first decision concerned the disqualification matter, in which the High Court observed inter alia:
“During the appeal proceedings lay member [Mr A.], Economist, remembered a circumstance that he thought appropriate to mention to the other members of the bench and which was then passed on to the parties.
[Mr A.] is a partner in PricewaterhouseCoopers DA. At the time of writing this company is engaged in an assignment for ABG Sundal Collier Norge ASA (referred to in the following as ABG Sundal Collier), the parent company of one of the parties in this case, Sundal Collier & Co ASA. In collaboration with a second company, First Securities ASA, ABG Sundal Collier has undertaken a consultancy assignment for a company that is seeking listing on the Oslo Stock Exchange. PricewaterhouseCoopers’ assignment consists of providing certain auditing and accounting services in connection with the stock exchange launch. The assignment was given last spring following a tendering competition and according to the information provided most of the work on the assignment is being performed by PricewaterhouseCoopers’ Bergen office. Mr [A] has been entrusted with the task of providing advice in connection with the assignment and will thus be one of the people who will provide the services in question. In this context he has also had some direct contact with a representative of ABG Sundal Collier. According to the submitted documents, the fee for the assignment will be approximately NOK 300,000. The assignment has not yet been completed. The company seeking listing will ultimately be liable for payment to PricewaterhouseCoopers.”
After [Mr A.] had provided an outline of the situation, the [applicant] requested further information from the opposing party, and the parties have since exchanged pleadings on the question of competence. At today’s hearing F.A. Gade, acting for [the applicant], filed an objection to the competence of lay member [Mr A.]. The parties have been given the opportunity to comment on the question. [Mr A.] was not present in Court during the arguments and decision on the question of his competence.
[The applicant] argues that lay member [Mr A.] is disqualified pursuant to section 108 of the Administration of Courts Act. The company points among other things to an information that PricewaterhouseCoopers has obtained approximately six per cent of the commissions carried out for ABG Sundal Collier during the three past years. A commission concerning a stock market introduction is very prestigious and is currently a rare occurrence. It is obvious that PricewaterhouseCoopers has considerable interest in obtaining this type and other kinds of assignments for ABG Sundal Collier, which is a main actor in this market. As a partner in PricewaterhouseCoopers, [Mr A.] has a direct financial interest in the company’s income and future income potential. What is decisive is how this matter would appear to the public. The counter action in the case concerns a considerable compensation claim against Sundal Collier & Co ASA. According to the information available, there is currently no activity in this company, and it is obvious that for the purpose of the impartiality issue this company ought to be identified with ABG Sundal Collier, which has continued the daughter company’s activity. There is clearly too close a connection between [Mr A.] and the respondent for [Mr A.] to serve as a judge in the case. A further disqualifying circumstance is that [Mr E.] of ABG Sundal Collier is a central witness in the case with regard to the question whether [the applicant’s] representative during a meeting with Sundal Collier & Co ASA, attended by [Mr E.], made statements which could provide a basis for demanding confiscation of assets. It is unsustainable that [Mr A.] should assess the sustainability of witness statements from a person with whom he has a relationship of continuous professional cooperation.
At the preparatory stage [the applicant] has been particularly concerned about the need for any lay members appointed to have the sufficient independence from the parties and in this connection the company pointed to the close business relations between the large companies in the financial sector. It should also be emphasised that the law firm of counsel for the respondent had carried out commissions for ABG Sundal Collier in connection with the stock market introduction [at issue].
Sundal Collier & Co ASA claim that lay member [Mr A.] was not disqualified from taking part in the case. His connection to the respondent in the appeal is too weak. This is illustrated by the fact that [Mr A.] in the beginning did not think at all that there could be a ground for him to be disqualified. The assignment in question is very small and [Mr A.] does not play a central role in this. He is primarily to provide advice to PricewaterhouseCoopers office in Bergen, which is handling the consultancy. Billing and fees are done to ABG Sundal Collier and First Securities, but it is the company which is to be introduced on stock market which is going to cover the costs. [Mr A.] does not have any daily or continuous dealing with the consultancy. This is a singular consultancy consisting in objective accountancy considerations. [Mr A.] is not personally the contact person and PricewaterhouseCoopers has no direct or indirect interest in the outcome of the court case. [Mr A.] will be removed from the consultancy. No one from counsel’s law office who is directly involved in the case has been aware of the matter. The law office has no commission for ABG Sundal Collier in connection with the stock market introduction but only for the company whose introduction is being sought.
The Norwegian financial milieu is small and there are very few big accountancy firms which are able to take on such consultancies. A strict interpretation of section 108 of the Administration of Courts Act would lead to a very narrow choice of competent lay judges in cases where particular competence in finance and accountancy is required. ...
The High Court is of the view that there is nothing to suggest that lay member [Mr A] is not fully able to reach an impartial decision in the case, notwithstanding the contractual relationship between ABG Sundal Collier and PricewaterhouseCoopers. The Court notes that [Mr A] himself did not view this relationship as a problem, and it was not until the second week of the proceedings that it struck him that he should mention the relationship. This is not decisive, however, since the question of disqualification must be considered on the basis of a more general assessment of what relationship between a lay judge and a party will be deemed unacceptable pursuant to section 108 of the Administration of Courts Act.
The High Court notes that objections to the competence of the lay judge have been entered by [the applicant] and the Court makes reference to [the applicant]’s submissions as quoted above. Having considered the matter in its entirety, the Court is of the view that in light of the circumstances the lay member [Mr A] should withdraw.
The decision is unanimous.
Conclusion
[Mr A] is ordered to withdraw.”
In the second decision the High Court decided to divide the case:
“Having put the question of dividing the proceedings pursuant to Article 98(2) paragraph of the Code of Civil Procedure to the parties, the Court adopted a unanimous ruling that with regard to the cross-action – item 2 of the [applicant]’s statement of claim – the following two questions should be considered first:
1.Whether in light of the negotiating situation between the parties Sundal Collier & Co ASA were in breach of their obligations in relation to [the applicant], in other words whether there was an obligation for SCC not to apply for attachment in Norway, Sweden and/or Luxembourg.
2.Whether there exist other fault-based or strict grounds for liability in connection with the applications for attachment in Norway, Sweden and Luxembourg.
The decision means that as at present the Court will not review questions relating to causal effect for the claimed losses or the question whether there should be imputation of liability between the [the applicant] and company Plenteous.
After the proceedings had been completed in accordance with this decision the High Court ruled, following deliberations, that decision should be rendered in both the primary and the cross-action on the basis of the decision adopted.”
When the proceedings resumed on Monday, 27 October 2003, counsel for the applicant filed a motion for the case to be discontinued on the grounds of the High Court’s order of 23 October 2003 requiring lay member Mr A. to withdraw. Counsel for the respondent objected. Thereafter the Presiding Judge informed the parties that the High Court had unanimously decided that the proceedings should continue, pursuant to section 15 (1) of the Administration of Courts Act. As stated in the High Court judgment of 22 January 2004:
“The disqualification of the lay member [Mr A.] did not disqualify the other judges and the need for expertise was safeguarded in the further proceedings.”
As for the remainder of the hearing, the following may be read in the transcripts of the High Court’s hearing record:
“Proceedings resumed the following day, 6 November, at 9 a.m.
...
Witness 8:
[Mr R], Attorney at Law
Born on ...
Address: ... Oslo
Not connected to the parties. The Respondent referred to Record 16 page 1459 (exemption from duty of confidentiality with respect to Sundal Collier in connection with the District Court’s hearing of the cross-action) and that a corresponding exemption also applied during the Court of Appeal’s hearing. The witness is under a duty to testify in full on all relevant questions relating to the negotiations with Procedo in September 1988 and the attachment applications filed in September 1998. The witness was admonished, gave an affirmation and then testified.
The witness’ testimony was given in camera and those present were bound to confidentiality.
...
Proceedings resumed on Monday, 10 November at 9 a.m.
...
Witness 11
(testified by telephone): [Ms D.], Attorney at Law
Tel.: ....
..., Luxembourg
Was informed of her duties as a witness, gave an affirmation and then testified.
After the witness had testified, [counsel for the applicant] asked that the record of the proceedings on the subject of his examination of [Ms D] show that he had been precluded from asking questions concerning her duty of confidentiality, with the exception of a single question about when she had been approached by Sundal Collier.
The Presiding Judge pointed out that Sundal Collier had not revoked [Ms D]’s duty of confidentiality, except as regards the question that [counsel for the applicant] had been permitted to put.
The Presiding Judge also pointed out that the examination conducted by Sundal Collier contained no questions that she was unable to respond to without the revocation of the duty of confidentiality. He also noted that the question put by [counsel for the applicant] and answered by [Ms D] had been put with the consent of the opposing party, and that this consent applied to this question only. Consent in this form was granted before [counsel for the applicant] put his question.
...
The Presiding Judge then stated that the proceedings had been concluded as regards the primary action and that this aspect of the case had been set down for judgment. On the subject of the cross-action, the Presiding Judge stated that the decision on whether the proceedings should continue or not would be communicated to the parties on Monday, 17 November.
Court adjourned at 3 p.m.
The Court conducted its deliberations on the following day, 14 November at 9 a.m. in camera.
The Court continued its deliberations on Monday, 17 November at 10 a.m. in camera. Following deliberations on 14 and 17 November, the Court ruled that decisions should be rendered in both the primary action and the cross-action on the basis of the proceedings that had been conducted. The decision is attached to the record of the proceedings.”
In a decision of 17 November 2003 the High Court reiterated its decision of 23 October 2003 on the division of the proceedings and affirmed that the appeal proceedings had been conducted in accordance with this decision until 13 November 2003. It further stated that after its deliberations on 14 and 17 November 2003 it had decided to close the proceedings and adjudicate the case, both the principal action and the counter action as it had been pleaded.
By a judgment of 22 January 2004 the High Court upheld the City Court’s judgment in the main and ordered the applicant company to pay specified amounts for Sundal Collier’s legal costs both before the City Court and the High Court.
According to the High Court’s judgment of 22 January 2004 referred to above, at an unspecified time after the City Court’s judgment of 4 January 2002, Sundal Collier & Co ASA’s broker activity was taken over by the mother company ABG Sundal Collier and since then there had been no economic activity in the former company.
The applicant company sought to appeal against the High Court’s procedure and judgment to the Supreme Court (Høyesterett).
In so far as the procedure was concerned, the applicant company argued that the High Court judgment ought to be quashed. In the first place, the High Court had been unlawfully constituted by reason of the participation of lay judge A., who had been disqualified under section 108 of the Administration of Courts Act (Article 384 (2) item 2, of the 1915 Code of Civil Procedure). In the alternative, the applicant maintained that lay judge A’s participation must have had an influence on the High Court judgment (Article 384 (1)). The proceedings had lasted for “seven” days when lay judge A was ordered to withdraw. The substantive questions concerned relatively old facts, which meant that the parties’ pleadings and the case documents would be central to the High Court determination of the case. Moreover, the decisions to respectively disqualify lay judge A. and to divide the proceedings had been taken in the same court session. A decision to divide the proceedings presupposed that the judges had discussed the substance of the case, an issue that had been raised already on the fourth day of the hearing. In the further alternative, the applicant submitted that for the High Court to continue the proceedings, with reference to section 15 of the Administration of Courts Act, after A.’s withdrawal, had constituted an error of procedure.
Secondly, the company complained about limitations on the possibility to cross-examine two advocates, Mr R. and Ms D., who had appeared as witnesses at the High Court hearing on the adversary party’s behalf, due to the fact that the adversary party had not lifted their duty of confidentiality or had done so only in part. For these reasons, the applicant company had not been afforded a fair hearing before an independent and impartial tribunal, in breach of Article 6 of the Convention.
On 16 July 2004 the Appeals Leave Committee of the Supreme Court (Høyesteretts kjæremålsutvalg) refused the applicant leave to appeal with regard to the High Court’s procedure, finding it obvious that the appeal had no prospects of success. As for the remainder, the Committee refused such leave on the ground that the appeal represented no interest beyond the particular case and that no other reasons warranted the appeal being heard by the Supreme Court.
B. Relevant domestic law
The requirements of impartiality of judges and lay judges are set out in sections 106 to 108 of the Administration of Administration of Courts Act (domstolloven - Law of 13 August 1915 no. 5). In the present case, the national High Court relied on section 108, which reads:
Section 108
“Nor may a person sit as a judge or juror if there are other particular circumstances which are liable to weaken the confidence in his impartiality. This applies in particular if a party requests that he withdraws on this ground.”
As for the procedure for handling questions of impartiality, the following provisions of the 1915 Act were relevant:
Section 111
“A party wishing to request that a person be excluded from taking part should do so as soon as he becomes aware of the matter which justifies the request.
He may no longer request exclusion according to section 108 if he was aware of the particular circumstances but nonetheless has proceeded to plead the case before the court.
The request may be submitted either orally or in writing and shall state the reasons relied on.
Section 115
“Before the hearing of the particular case begins, the president of the court shall inform the jurors or lay judges that they are excluded from serving if they conform to any of the conditions referred to in section 106 or section 107, or if, for their part, such circumstances exist as referred to in section 108, and he shall call upon them and the parties to disclose the fact if this should be the case.”
Section 15
“If any of the members of the court or the jury is unable to attend after the main hearing has begun, the hearing may be continued without summoning a replacement provided that there is only one juror or lay judge and only one other judge less than is normally required. Both in civil and criminal proceedings, a judge who, pursuant to section 12 (1) may serve as the president of the court must always be present.
When the Court of Appeal is composed only of three professional judges, the proceedings may not be continued if any of them is unable to attend.”
Relevant provisions of the former Code of Civil Procedure (tvistemålsloven- Law of 13 August 1915 no. 6; replaced with effect from 1 January 2008 by a new Code):
Article 98
“The court may consolidate one or more cases for joint hearing and in such case for joint ruling when hearing of the case may thus be facilitated or accelerated and when at least one of the parties is the same in all of the cases.
The court may decide that there shall be a separate hearing concerning one or more of the claims consolidated in a single case or concerning individual issues in dispute concerning the same claim.
The decisions of the court pursuant to this section may not be challenged or appealed.”
Article 205
“Without the consent of the person entitled to the preservation of secrecy, the court may not receive any statement from clergymen in the state church, priests or pastors in registered religious communities, lawyers, defence counsel in criminal cases, conciliators in matrimonial cases, medical practitioners, psychologists, chemists, midwives or nurses about anything that has been confided to them in their official capacity.
The same applies to subordinates and assistants who in their official capacity have acquired knowledge of anything that has been confided to the persons mentioned above.
If the person who is entitled to the preservation of secrecy does not consent to the examination taking place in public, the statement shall only be communicated to the court and to the parties at a sitting in camera and subject to an order to observe a duty of secrecy.”
COMPLAINTS
The applicant company complained under Article 6 § 1 of the Convention that due to the participation of lay member, Mr A., in parts of the proceedings before the High Court and the refusal of the latter to discontinue the proceedings and refer the case to a differently composed High Court, there had been a violation of the right to a fair hearing by an impartial tribunal.
Under the same provision, the applicant company complained that it had not been afforded a proper opportunity to cross-examine two lawyers who had appeared as witnesses for Sundal Collier, as it had not been clarified in advance whether their duty of confidentiality had been lifted wholly or in part.
THE LAW
The applicant company complained that, in the proceedings before the High Court, it had not been afforded a fair hearing before an impartial tribunal as provided in Article 6 § 1 of the Convention, which reads as follows:
“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.”
The Government disputed the applicant’s complaints and requested the Court to declare the application inadmissible as being manifestly ill-founded.
A. Complaint under Article 6 § 1 of the Convention about lack of impartiality of the High Court
1. Submissions of the parties
(i) The applicant company’s arguments
The applicant company complained that the High Court had failed to comply with the requirement of impartiality in Article 6 § 1 on account of its having pursued its examination of the case notwithstanding its decision of 23 October 2003 that lay member A had been disqualified from taking part in the case. This decision had been taken on the sixth day of the hearing, after the High Court, with lay member A’s participation, had heard the applicant company’s opening speech on all aspects of the case and the respondent party’s opening speech on the main action and the merits of the counter action (albeit not the causation and quantum aspects of the latter claim), and had deliberated. Although it had been beyond dispute that lay member A had been disqualified from taking part in the case, the High Court did not seem to have examined the issue whether its remaining members satisfied the requirement of impartiality.
Moreover, on the above mentioned date, 23 October 2003, the High Court decided to divide the proceedings relating to the counter action, that separate proceedings should first be conducted on the merits of the counteraction while leaving aside, at that stage, the causation issues. This did not mean that the High Court would have to give a separate judgment on the former issues. However, as was apparent from its decision of 17 November 2003, already on 23 October 2003 had the High Court entertained serious doubts as to the need for continuing the proceedings by hearing the parties on the causation issues. The decision to divide the proceedings made sense only because, as early as 23 October 2003, the High Court held a prima facie view, as it indeed decided on 17 November 2003, that it would not wish to hear the parties on causation issues since the counter claim would fail on its merits.
Such a prima facie assessment of the merits was not binding on the High Court and, from a strictly legal point of view, the decision to divide the case had merely concerned a procedural matter. However, the fact that the High Court was in a position to divide the proceedings on 23 October 2003 without any lengthy formal deliberations (if any), confirmed that, as common sense also suggested, there had naturally been a continuous exchange between the judges composing the High Court who by then had heard the case over several days. Whether such exchanges could be qualified as deliberations from a formal legal point of view was not decisive. Thus it could not be seriously denied that the High Court’s decision to divide the proceedings which, de facto implied a prima facie assessment of the case – might well and was actually likely to have been influenced by lay member A.’s participation in the first six days of the proceedings.
The fact that lay member A., despite his having been invited to inform about any disqualifying circumstances prior to his appointment, did not disclose his links with Sundal Collier until at a time when the proceedings had been well under way, could not but enhance the applicant’s legitimate concern about A’s position and the influence he may have had on the proceedings.
(ii) The Government’s arguments
The Government stressed that lay member A.’s withdrawal had been motivated not by subjective factors but by objective reasons only. However, his connection to Sundal Collier had solely consisted of a relatively minor role of giving advice in an assignment involving Sundal Collier’s parent company. In reality the commission had been carried out on behalf of the company for which a stock-exchange introduction was being considered, as could be deduced from the fact that it was this company that had been responsible for paying the consultancy fees. None of the parties to the case before the High Court had been involved in the assignment. The weak connection between Mr A. and Sundal Collier was also illustrated by the fact that he had not thought of raising the impartiality issue until the hearing had lasted for four and a half days. The High Court had been very cautions and had allowed a wide margin of safety when it, in spite of the weak connection between Mr A. and Sundal Collier, had decided that he should withdraw. It could reasonably be questioned whether there were sufficient reasons to doubt his objective impartiality. These considerations ought to be taken into account when considering whether A.’s participation could have affected the impartiality of the remaining members of the High Court formation.
In the Government’s view it was significant that, while the impartiality issue was raised already after four and a half hearing days, the High Court, with the applicant’s approval, had deferred its decision on the withdrawal until the sixth day. It must be assumed that in the interval, the possible incapacity of Mr A. had made him and the other judges particularly cautious. For example, he had not participated in the decision on withdrawal nor in that on the division of the proceedings.
The Government stressed that there was no shred of evidence to support the applicant’s allegation that Mr A., during the first six days of the proceedings, not only had been present in the hearings but had also participated in deliberations and presented views in relation to the case at hand. As was customary in all civil cases before the domestic courts, the deliberations on the merits had been held after the hearing had ended, which in this case had taken place 21 days after Mr A. had been discharged.
In light of the above, the applicant had no legitimate reason to fear that the High Court was not impartial.
In no way did the High Court’s decision under Article 98 (2) of the Code of Civil Procedure to divide the proceedings imply a lack of impartiality. Such a decision only related to the progress of the proceedings and did not imply any appraisal of the merits. This was shown by the fact that it was not until after the oral hearings had been concluded and the High Court had deliberated for two days that it found that the cross-action had been ill-founded. To continue the proceedings concerning the cross-action had therefore become unnecessary. Accordingly, the previous decision on division of the proceedings cannot be considered as an indication of any predisposition on the part of the High Court.
The High Court had considered the question on impartiality and had found that lay member Mr A.’s participation did not disqualify the other judges. It should be noted that the applicant did not lodge any motion for disqualification, which it could have been expected to do if it had considered this as a problem. The High Court’s assessment of its own impartiality was also upheld by the Supreme Court.
Finally, the Government pointed out that, as a result of the strict manner in which the Norwegian rules on impartiality were applied, it was not infrequent in practice that a judge or juror had to withdraw on objective ground after the hearing had commenced. A principle whereby the withdrawal of one member would automatically require the withdrawal of the court as a whole and a full hearing before a differently composed tribunal, would not only be unnecessary but also expensive and time-consuming and would lead to practical problems for smaller tribunals.
2. Assessment by the Court
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of facts and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that the complaint 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.
B.Complaint under Article 6 § 1 about failure to observe the principle of equality of arms
1. Submissions of the parties
(i) The applicant company’s arguments
The applicant further complained that the High Court had failed to comply with the principle of equality of arms inherent in Article 6 § 1, as a result of the fact that the adversary party had been allowed to rely on the testimonies of its own lawyers, Mr R. and Ms D., without having to waive the attorney-client privilege. Since the adversary had not waived the said privilege, the applicant’s representatives had been denied the right to cross examine them at their own discretion, after the adversary itself had examined those witnesses. Without the adversary’s specific consent, the lawyers in question had been unable to answer any questions covered by professional secrecy. As a result, the applicant had been prevented from obtaining full testimony from the Sundal Collier’s lawyers on the circumstances in which the attachments had been sought and obtained, although this had been at the heart of the applicant’s counter claim against Sundal Collier. In contrast, the latter had been allowed to rely, just as it saw fit, on its own lawyers’ testimonies. The High Court should only have admitted such testimonies on the condition that Sundal Collier waive the client-attorney privilege and thus enable the applicant to cross-examine those witnesses without any undue restrictions resulting from professional secrecy constraints.
(ii) The Government’s arguments
The Government argued that it was beyond doubt that the applicant had been given the opportunity to cross-examine the witnesses Mr R. and Ms D. on the same conditions as its opponent, Sundal Collier. As Mr R. and Ms D. had assisted Sundal Collier in their capacity of lawyers, they had both been subject to a duty of confidentiality pursuant to Article 205 of the Code of Civil Procedure and could not, without their client’s consent, testify on circumstances which their client had entrusted to them.
The rules on client confidentiality set forth in Article 205 of the Civil Procedure Code applied in every civil case, as it did for both parties in the present case. The applicant and its opponent could both decide to uphold the client confidentiality, and none of them could prevent their lawyers from being questioned on circumstances not comprised by the client confidentiality. Accordingly, the fact that Sundal Collier had the opportunity to refuse, and in fact did refuse to waive the lawyers’ professional secrecy, did not imply any inequality between the parties.
As regards the limited exemption from Mr R.’s duty of confidentiality, it should further be noted that, neither before the City Court nor the High Court, had the applicant objected to this limitation. All of the questions listed in the applicant’s appeal to the Supreme Court and which it – hypothetically – had been barred from posing, fell within the ambit of the waiver given and thus would have been answered by Mr R. had they had been put. However, no such questions had been set forth by the applicant during the proceedings.
Ms D. could merely be questioned regarding circumstances not comprised by the professional secrecy. Both parties had acted accordingly. None of them had asked questions which were comprised by Ms D.’s client confidentiality, except for on question which Sundal Collier had expressly consented to be asked by to the applicant to Ms D. Otherwise, the parties had been given the same opportunity to ask questions. Accordingly, the manner in which Ms D. had been questioned did not give rise to any imbalance between the parties in defiance of the “equality of arms” principle.
2. Assessment by the Court
The Court notes that, in the present instance, the witnesses Mr R. and Ms D. who had been called by the respondent party, Sundal Collier, were under a professional duty of professional secrecy because they had acted as lawyers for that party. Pursuant to Article 205 of the Code of Civil Procedure, as applicable at the material time, the High Court could not receive any statement from them without Sundal Collier’s consent. After the latter had waived the duty of secrecy in part, Mr R and Ms D were called to give evidence within the boundaries of this waiver and the applicant had an opportunity to put questions to them and comment on their statements in so far as it wished to do so.
Against this background, there is nothing to indicate that the applicant company was not afforded a reasonable opportunity to present its case under conditions that did not place it at a disadvantage vis-à-vis Sundal Collier (see Buchberger v. Austria, no. 32899/96, § 50, 20 December 2001; Dombo Beheer B.V. v. the Netherlands judgment of 27 October 1993, Series A no. 274, p. 19, § 33; Ankerl v. Switzerland judgment of 23 October 1996, Reports 1996-V, pp. 1567-68, § 38). Nor is there anything to suggest that the applicant was not given the opportunity to have knowledge of and comment on the observations filed or evidence adduced by the other party (see Buchberger, cited above, ibidem; Ruiz Mateos v. Spain judgment of 24 June 1993, Series A no. 262, p. 25, § 63; Nideröst-Huber v. Switzerland judgment of 18 February 1997, Reports 1997-I, p. 108, § 24; Beer v. Austria, no. 30428/96, § 17, 6.2.2001). In the Court’s view, the circumstances of the present case disclose no appearance of failure on the part of the High Court to observe the principle of equality of arms inherent in the notion of fair hearing in Article 6 of the Convention.
It follows that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention;
Declares admissible, without prejudging the merits, the applicant’s complaint concerning the lack of impartiality of the High Court;
Declares inadmissible the remainder of the application.
André WampachChristos Rozakis
Deputy RegistrarPresident
Full & Egal Universal Law Academy