FOURTH SECTION
DECISION
Application no. 19149/05
by Shirin IQBAL
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 23 June 2009 as a Chamber composed of:
Lech Garlicki, President,
Nicolas Bratza,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Ledi Bianku,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 12 May 2005,
Having regard to the unilateral declaration submitted by the respondent Government on 7 October 2008 requesting the Court to strike the application out of the list of cases and the applicant’s acceptance of that declaration,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Shirin Iqbal, is a British national who was born in 1957 and lives in Liverpool. She is represented before the Court by Mr R. Manson, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms E. Wilmott of the Foreign and Commonwealth Office, London.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant and her husband were the sole shareholders in and joint directors of two companies trading in the Freeport in the City of Liverpool during the 1980s: Streed Ltd., incorporated on 21 August 1984 and Streed (UK) Ltd., incorporated on 21 January 1986. They engaged in the import of linen and other cloth materials from Pakistan, which were made up into bed linens and bed materials which were then exported to Scandinavia. Both companies maintained accounts with the Manchester Branch of the Habib Bank.
In May 1990 the Bank informed the applicant and her husband that their accounts were in huge arrears and exercised a lien on import consignments of raw materials which were sold within the United Kingdom.
On 14 November 1990, the applicant, acting as director, issued a writ in the High Court against the Bank claiming conversion, trespass to goods and damages due to false accounting and loss of business.
On 17 December 1990 the High Court granted the Bank an extension of time to serve the defence. A further extension was granted on 7 March 1991. The Bank’s defence and counter-claim were served on 16 July 1991.
On 19 September 1991 the court granted the applicant leave to amend her writ and claim but ordered the action to be stayed pending the payment of the defendant’s wasted costs.
The proceedings appear to have re-started in May 1993. On 16 June 1993 the applicant requested further and better particulars of the amended defence and counter-claim.
The court granted three applications by the Bank for an extension of time.
On 23 November 1994 the Bank issued a writ against the applicant’s husband for enforcement of a guarantee. Service and counter-service of the claim, defence and counter-claim took place from 1996 to early 1997.
On 3 December 1996 the court ordered the applicant to be made co‑plaintiff with the two companies in her action against the Bank. On 30 May 1997 the court set this order aside.
In July 1997, following the liquidation of the two companies, the liquidators assigned their claims in the proceedings to the applicant. She applied to be re-joined as co-plaintiff. A hearing on this summons was held on 19 May 1998 when she was re-joined to the proceedings. On 16 May 1998 and 7 June 1998, respectively, the re-amended pleadings were issued.
On 24 March 2000 the High Court judge ordered that the action be consolidated with the guarantee action, that documents be exchanged by 30 June 2000 and a case management conference be held at the earliest date after 1 September 2000.
On 28 September 2000 the judge ordered consolidation of the counterclaim, that the parties produce a statement of agreed facts and that a case management conference be held in January 2001.
On 26 January 2001 the judge ordered trial of the preliminary issues but on 30 May 2001 it was ordered that all issues be tried together from November 2001.
On 28 November 2001 the hearing began. Oral evidence closed on 17 December 2001. Further closing and written submissions were made between January and April 2002.
On 21 November 2002 the High Court judge issued his draft judgment on the guarantee action, in which he found against the Bank. The draft judgment on the applicant’s claims was issued to the parties on 11 January 2003, generally in her favour.
On 3 March 2003, at the hearing at which the judgment was to be formally handed down, various inconsistencies were drawn to the judge’s attention by counsel. On 11 September 2003 the final judgment was sealed and served. It found that the applicant had made out her claim for wrongful exercise of a lien over goods and stated that directions would be given for trial of the issue of the re-writing of the companies’ bank accounts. No order was ever drawn up. The Bank sought a stay of the proceedings and appealed to the Court of Appeal, particularly attacking the delay in production of the judgment and its inconsistencies as showing that the judge had not got properly to grips with the case.
From 14 to 16 June 2004 the Court of Appeal heard the appeal.
In its judgment dated 29 July 2004, the court noted that the judge had not provided it with an explanation for the delay in producing his judgment. It found that the delay was unacceptable, and that it was unsatisfactory that he had delivered his judgments in instalments with so much that called for reconsideration and correction. It was left with real concern that the judge had dealt less than adequately with the issues of fact. While it upheld the judge’s findings on the guarantee, it found the judge’s approach to the evidence on the applicant’s claims flawed and his findings, insofar as they could be understood, insufficiently supported. With reluctance, it was driven to the conclusion that the only appropriate course was to allow the appeal and to direct that the applicant’s claim be re-tried before a different judge. On its own view of the evidence, however, it found it hard to see how the applicant could hope to establish that the Bank was substantially indebted to the companies in the face of the Bank’s contemporary evidence and with no contemporary evidence from the companies to gainsay this.
On 16 December 2004 the House of Lords refused leave to appeal. According to the information in the case file, the case was reheard in 2007 and judgment issued. It is not apparent whether the applicant is appealing further.
COMPLAINT
The applicant complained under Article 6 § 1 that she did not receive a fair hearing within a reasonable time, with the proceedings taking over fourteen years and much of the delay being attributable to the Bank and the courts failing to take reasonable steps to bring the case to trial.
THE LAW
By letter dated 26 June 2007 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“The Government of the United Kingdom regrets that there was an unreasonable delay in the way in which the domestic case proceeded at first instance, and acknowledges the criticisms made by the Court of Appeal in its judgment of 29 July 2004 that “the delay that incurred was unacceptable”. The Government therefore accepts that there was a violation of the reasonable time requirement under Article 6 of the Convention in relation to those proceedings to the extent acknowledged by the Court of Appeal (and covered by the Applicant’s complaint to this Court).
As regards the unreasonable delay, the Government refers the Court to changes that have been made, since the delay arose in this case, to the way in which the Mercantile Court in Manchester (which also sits in Liverpool) operates. Those measures, which are intended to eliminate the possibility of a similar delay occurring, are:To allow the Mercantile Court to call on Chancery judges and judges from the Technology and Construction Court to supplement the two mercantile judges who are based in Manchester, but also sit in Liverpool.To open a new Manchester Civil Justice Centre later this year, which will house the Mercantile Court, the Chancery Court and the Technology and Construction Court when sitting in Manchester. That will have the consequence of ensuring that Manchester cases will not be heard in Liverpool and that case files will not have to be transferred between the two courts.Time for pre-reading and preparing judgments has been given since 2003 and adopted by the Manchester Mercantile Court in 2004.Every outstanding judgment has been monitored since 2003. The judges sign the monitoring report before it goes to the Regional Director’s Office and then to the Presiding Judges.IT systems have changed since 2004 and now allow Liverpool and Manchester Mercantile Courts (as well as their judges) to see each centre’s case progress. The technology allows correspondence to be logged and tracked. E-mail allows judges to respond to urgent correspondence. In addition an electronic diary has been introduced for staff in Liverpool and Manchester.There are now no outstanding judgments in Manchester.
In these circumstances, and having had regard to the particular facts of Mrs Iqbal’s case, the Government declares that it hereby offers to pay ex gratia to the Applicant the amount of £3,400 (which equates to approximately 5,050 euros). The sum of £3,400, which also covers legal expenses connected with the case, will be paid in pounds sterling to a bank account named by the Applicant within three months from the date of the striking-out decision of the Court pursuant to Article 37 of the ECHR. This payment will constitute the final settlement of the Applicant’s case.”
The applicant, in a written reply dated 9 November 2007, considered that the amount proposed by the Government was derisory and unacceptable.
The Government revised the unilateral declaration with a view to resolving the issues raised by the application and submitted it to the Court on 7 October 2008. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The revised declaration provided as follows:
“The Government of the United Kingdom regrets that there was an unreasonable delay in the way in which the domestic case proceeded at first instance, and acknowledges the criticisms made by the Court of Appeal in its judgment of 29 July 2004 that “the delay that incurred was unacceptable”. The Government therefore accepts that there was a violation of the reasonable time requirement under Article 6 of the Convention in relation to those proceedings to the extent acknowledged by the Court of Appeal (and covered by the Applicant’s complaint to this Court).
As regards the unreasonable delay, the Government refers the Court to changes that have been made, since the delay arose in this case, to the way in which the Mercantile Court in Manchester (which also sits in Liverpool) operates. Those measures, which are intended to eliminate the possibility of a similar delay occurring, are:To allow the Mercantile Court to call on Chancery judges and judges from the Technology and Construction Court to supplement the two mercantile judges who are based in Manchester, but also sit in Liverpool.To open a new Manchester Civil Justice Centre later this year, which will house the Mercantile Court, the Chancery Court and the Technology and Construction Court when sitting in Manchester. That will have the consequence of ensuring that Manchester cases will not be heard in Liverpool and that case files will not have to be transferred between the two courts.Time for pre-reading and preparing judgments has been given since 2003 and adopted by the Manchester Mercantile Court in 2004.Every outstanding judgment has been monitored since 2003. The judges sign the monitoring report before it goes to the Regional Director’s Office and then to the Presiding Judges.IT systems have changed since 2004 and now allow Liverpool and Manchester Mercantile Courts (as well as their judges) to see each centre’s case progress. The technology allows correspondence to be logged and tracked. E-mail allows judges to respond to urgent correspondence. In addition an electronic diary has been introduced for staff in Liverpool and Manchester.There are now no outstanding judgments in Manchester.
In these circumstances, and having had regard to the particular facts of Mrs Iqbal’s case, the Government declares that it hereby offers to pay ex gratia to the Applicant the amount of €10,000, which includes the sum of € 5,000 in respect of legal expenses and VAT in connection with the case, to be paid in pounds sterling to a bank account named by the Applicant within three months from the date of the striking-out decision of the Court pursuant to Article 37 of the ECHR. This payment will constitute the final settlement of the Applicant’s case.”
A copy of the revised unilateral declaration was sent to the applicant on 9 October 2008 for comments. In a letter dated 11 May 2009 her representative advised the Court that “she gave instructions to consent to the terms of the proposed declaration with reluctance”.
The Court notes that the applicant has, albeit reluctantly, expressed her willingness to accept the terms of the Government’s revised declaration. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Lawrence EarlyLech Garlicki
RegistrarPresident
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