AS TO THE ADMISSIBILITY OF
Application No. 14551/89
by J.R. and W.A.
against the United Kingdom
The European Commission of Human Rights sitting in private
on 4 December 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
Sir Basil HALL
Mr. F. MARTINEZ
Mrs. J. LIDDY
Mr. L. LOUCAIDES
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 10 January 1989
by J.R. and W.A. against the United Kingdom and registered on 16
January 1989 under file No. 14551/89;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant is a citizen of the United Kingdom who
was born in India in 1927 and is normally resident in Fribourg,
Switzerland. The second applicant is also a citizen of the United
Kingdom, born in 1958 and normally resident in London.
Before the Commission the applicants are represented by Messrs
James and Sarch, solicitors, London.
This is the applicants' second application to the Commission.
The first application, No. 14074/88, concerned proceedings as a result
of which the applicants were found guilty of civil contempt and
committed to prison in absentia for periods of two years and six
months respectively from the date of their apprehension.
The facts of the present case, as submitted on behalf of the
applicants, may be summarised as follows:
On 9 March 1988 the applicants were found guilty of civil
contempt and committed to prison for two years and six months
respectively. An appeal to the Court of Appeal against the decision
of 9 March 1988 was made on 22 April 1988. On 15 September 1988 an
application was made by the solicitors for the plaintiff in the
contempt proceedings that the applicants should make payment into
court of £ 18,320.50 as security for costs of the appeal, in default
of which the appeal should be stayed. On 28 November 1988 the
Registrar of the Court of Appeal ordered the applicants to make
payment into court of £ 14,600 on or before 21 December 1988 in default
of which the appeals were to stand dismissed. The Registrar found,
inter alia, as follows:
"[The plaintiff's] case was that [the applicants] had
procured breaches of ... undertakings, as a result of
which assets of a very substantial value belonging to [a
company] were spirited away abroad out of the reach of the
liquidator of [the plaintiff] ...
Security for costs is sought on the grounds that [the
applicants] are resident abroad and do not have assets in
this country available to meet [the plaintiff's] costs of
the appeal if the appeal is unsuccessful ...
Here the award of security is resisted on the grounds that
the appeal involves the liberty of the subject ...
... although the Court as a general rule will not award
security for costs where the liberty of the appellant is at
stake on the appeal, it is possible for the Court to award
security in an appropriate case. In my judgment the test
should be: would it, in all the circumstances, be a denial
of justice to the appellants to require them to furnish
security for costs? The following factors have led me to
the conclusion that in this case it would not be a denial of
justice to [the applicants] to require them to furnish
security for the costs of their appeals.
(1) They have both been found guilty of procuring
deliberate and dishonest breaches of the undertakings
given to the Court in this action.
(2) There is not, and indeed could not, be any
suggestion that [the applicants] have not had a fair
trial. It is clear that the learned Vice-Chancellor
gave them every indulgence. ... It is not without
significance that neither of the applicants chose to
give any evidence or to come anywhere near giving a
satisfactory answer to the charges of contempt brought
against them. ... Their appeals are based on technical
points not the broad merits.
Furthermore, in my view their grounds of appeal,
although not hopeless, are weak...
(3) The case for awarding security for costs here is
particularly strong. The settled practice of the
Court of Appeal in awarding security where the
appellant is resident outside the United Kingdom is
not the product of any discrimination against foreign
nationals or against those who reside abroad. The
rationale of this Court's settled practice of awarding
security for costs in such cases is that the
difficulty (or, in some cases, impossibility) of a
successful respondent being able to enforce any order
for costs made in his favour by the Court of Appeal
against a non-resident appellant who has no assets in
this country.
I am satisfied on the evidence before me - in
particular the uncertainty about where [the
applicants] are living and generally their past
behaviour - that the chances of being able to enforce
any costs order against them are remote, if not
non-existent.
(4) The award of security will not prevent the
appellants pursuing their appeals. ... Here the
evidence before me does not establish that the
applicants would be unable to pay security of the
amount which I propose to order. On the contrary, the
indications are the other way. They have been able to
afford to have solicitors and counsel acting for them
throughout these proceedings which have already
involved a number of hearings at first instance, two
appeals to the Court of Appeal, and one application to
the House of Lords...
If an appellant wishes to contend that he is unable
to pay security for costs and therefore any award of
security will stifle his appeal he must adduce
credible evidence to that effect in the proper form...
I am not satisfied that these appellants would be
unable to pay.
... it would, in my judgment, be a denial of justice to
[the plaintiff] to allow these two dishonest individuals to
bring a third appeal to the Court of Appeal safe in the
knowledge that if the appeals are unsuccessful they will be
able to evade liability for [the plaintiff's] costs".
As to quantum, the Registrar found that the settled
practice of the Court of Appeal was to award an amount of security
equal to the best estimate the court could make of the full costs of
the appeal taxed on the standard basis. He considered the time
estimated, two days, "certainly not an over-estimate", but reduced the
time for solicitor's preparation from 55 hours partner's time to 30
hours. He considered that the proposed fee for counsel of £ 5000 with
a refresher of £ 750 was reasonable, and would normally be allowed on
standard basis taxation.
The applicants' appeal against the security for costs order
was heard on 19 December 1989. The appeal was dismissed and the
Registrar's order of 28 November was affirmed.
No payment was made into court before 21 December 1988 and the
applicants' appeals stood dismissed.
COMPLAINTS
The applicants submit that the requirement that they make
payment of £ 14,600 as security for costs in their appeal from the
decision of 9 March 1988 constitutes a breach of Article 6 of the
Convention. They contend that the contempt proceedings constitute
criminal charges, that Article 6 applies to the Court of Appeal and that,
in view of the potentially extensive risk of loss of liberty for the
applicants, they should not have had to make payment as a condition of
the appeal.
THE LAW
The applicants allege a violation of Article 6 (Art. 6) of the
Convention by virtue of the requirement that they pay £ 14,600 as
security for costs before they were permitted to proceed with their
appeal against an order committing them to prison for civil contempt.
The first sentence of Article 6 para. 1 (Art. 6-1) states:
"1. In the determination of his civil rights and obligations
or of any criminal charge against him, everyone is entitled
to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law."
The Commission notes that the Convention does not guarantee a
right to appeal either in civil or in criminal cases, and that Article
2 of Protocol No. 7 (P7-2), which has not been ratified by the United
Kingdom, provides for an appeal only in criminal cases. Where an
appeal is provided, however, the fundamental guarantees of Article 6
(Art. 6) must be respected, although the way in which the provision applies
must depend on the special features of such proceedings (cf. in the
context of a criminal appeal, Eur. Court H.R., Delcourt judgment of 17
January 1970, Series A no. 11, paras. 25 and 26).
The Commission is not required to decide in the present case
whether this provision applies to appeals in proceedings in which the
defendants are committed to prison for civil contempt, nor whether a
requirement to pay security for the costs of an appeal is generally
compatible with Article 6 (Art. 6) of the Convention as, even if both
questions were to be decided in the affirmative, the application is,
in any event, inadmissible for the following reasons:
The applicants must be understood to be complaining of a
denial of access to court by virtue of the requirement that they pay
into court security for costs of £ 14,600. The Commission refers here
to the judgment of the Registrar of the Court of Appeal, in which the
Registrar set out at length his reasons for granting the application
for security. In particular, the Commission notes that considerable
assets had left the country by the time of the order for security,
that the evidence did not establish that the applicants were unable to
pay the security, that the indications were that they were able to pay
it, and that the function of the security was to prevent the other
party to the proceedings from being at a financial disadvantage if
required to defend any appeal with little or no prospect of recovering
the costs that would be awarded if his defence was successful.
Further, the Registrar's assessment of the quantum of the security to
be awarded makes clear that the amount of security was based on the
actual costs likely to be incurred. It is true that the applicants'
liberty was at issue in the contempt proceedings (unlike in No.
7973/77, Dec. 28.2.79, D.R. 17, p. 74), but the overall circumstances
justified the order. The applicants' access to court was not denied.
It follows that the application 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)
Full & Egal Universal Law Academy