FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 14180/03
by Christopher Philip RANSON
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 2 September 2003 as a Chamber composed of
MrM. Pellonpää, President,
SirNicolas Bratza,
MrM. Fischbach,
MrR. Maruste,
MrS. Pavlovschi,
MrL. Garlicki,
MrJ. Borrego Borrego, judges,
and Mr M. O'Boyle, Section Registrar,
Having regard to the above application lodged on 23 April 2003,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Christopher Philip Ranson, is a United Kingdom national, who was born in 1948 and lives in Norfolk. He is represented before the Court by Mr R. Bamber, a lawyer practising in Cambridge.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant, a wealthy property developer, married in 1985 and the two children of the marriage were born in 1991 and 1994. In 1993 the family moved to New Zealand for tax reasons, the mother and children returning to the United Kingdom in 1996, the applicant in 1998. The couple divorced in 1999, and there were subsequent proceedings in respect of financial matters (“the ancillary proceedings”) and in respect of the arrangements for the children (“the Children Act proceedings”). The parties had reached agreement in November 1999 regarding the applicant's contact with the children, who had remained with their mother, but the arrangements later broke down and the applicant applied for a residence order, alleging deficiencies in the mother's care.
1. The ancillary proceedings
The hearing, before Mr Justice Singer, began in September 2000, but it became clear that the five day time estimate was insufficient and it was adjourned until February 2001, when it was concluded after fifteen further days. The applicant was represented by leading and junior counsel.
One of the main issues in the case was the relevance of a title defect in a freehold commercial property owned by the applicant, known as 'Site B' and potentially worth up to 11.4 million pounds sterling (GBP). It was by far the most significant asset in issue. Although, back in 1999, an affidavit filed by the applicant showed he had not then sought to rely on the potential consequences of the title defect, his case ultimately was that it meant that he was unable to sell or mortgage the property and that it was effectively worthless save as a source of income from rents (over GBP 700,000 per annum at the time). At worst the defect could give the local authority the right to buy the property for a nominal sum. Counsel for the mother argued that the defect was of a technical nature and need not create significant problems in terms of realising the value of the property. Another significant issue concerned the applicant's ongoing negotiations with the Inland Revenue as to his tax liabilities. Judgment was reserved.
2. The Children Act proceedings
The applicant appeared in person, assisted by his solicitor, having withdrawn instructions from counsel. At the pre-trial review on 3 May 2001, Mr Justice Singer gave directions, including one preventing the applicant from calling witnesses without leave of the court, and set a strict timetable. The applicant considered that the judge had already formed negative views about his character in the ancillary proceedings and felt he would not receive a fair hearing. He applied for the judge to remove himself from the case. The judge refused the application and refused permission to appeal, as did the Court of Appeal.
The hearing began on 14 May 2001. The applicant was cross-examined over three days by counsel for the mother. The applicant subpoenaed the children's head teacher, who expressed the view that the applicant was sincere in his concerns for the children and confirmed that the applicant's son had indicated a wish to be with him, although he also referred to the applicant as a bully. The applicant then began a lengthy cross-examination of the mother, in which the judge intervened frequently and revealed his increasing impatience with the applicant. It was later estimated that over 22 hours of the hearing the judge had intervened, on average, every 50 seconds.
By the morning of 18 May 2001 the applicant decided he was unable to continue with the case and withdrew from the proceedings. He made a statement to the court indicating that he felt that the truth would not come out and that he was unable to have a fair trial before Mr Justice Singer. The applicant declined an invitation from the judge to return to court or for his solicitor to remain on his behalf.
On 18 May 2001 the judge made various interim orders, including an injunction prohibiting publication of the details of the proceedings and a non-molestation injunction. He also ordered a suspension of the applicant's contact with the children until further order of the court. The applicant faxed two letters to the court over the weekend detailing his complaints about the judge's conduct and stating his intention to take his complaints further. He said he felt that he had been treated 'as a criminal' and that the judge had shouted at him, interrupted him and had made increasingly intemperate outbursts, which disclosed his hostility to the applicant. He also complained that the judge had allowed counsel for the mother to question him in an unfair manner, whilst preventing him from asking questions in similar terms. He expressed his belief that the judge had formed a prejudice against him in the ancillary proceedings, had prejudged his application for residence and thereafter had become increasingly and openly hostile.
3. The judgments of Mr Justice Singer
(a) Judgment in the Children Act proceedings
On 23 May 2001, giving judgment in the Children Act proceedings, Mr Justice Singer made a residence order in favour of the mother with contact for the applicant, but reducing that which he had previously enjoyed, to a total of 4 days over a 2 month period. The recommendation of the children and family court reporter had been for a residence order in favour of the mother but with an increase in the applicant's contact (including an extension to weekend contact). The mother had at an earlier stage indicated her agreement to the suggested increase, but had withdrawn it by the time of the hearing. The order was in terms as sought by the mother. The injunction prohibiting publication was retained. The introductory recital to the order invited the applicant to consider submitting himself to a psychiatrist for examination. Paragraphs 1 and 2 dealt with residence and contact. Paragraph 3 of the order included a non-molestation injunction in respect of the mother, a prohibition on any communication with the children except during the defined contact times, and an injunction preventing the applicant approaching within 100 yards of the mother's house or the children's school. By paragraph 5, the mother's application for an order under section 91 (14) of the Children Act 1989, (requiring the applicant to obtain leave from the court before making further applications) was adjourned for full hearing. Paragraph 9 of the order required the applicant to surrender the children's passports. By paragraph 10 he was ordered to pay the mother's costs of the proceedings on an indemnity basis (by which any doubt which the court may have as to whether costs were reasonably incurred or were reasonable in amount is resolved in favour of the receiving party), assessed summarily at GBP 170,000. Finally, the judge reserved the matter to himself.
The orders made on 23 May 2001 were to run until further hearing (in the event, July 2001). The contact was limited to enable the applicant's reaction to the outcome of the hearing to be assessed in relation to any impact it might have upon the children. Mr Justice Singer expressed profound reservations about the applicant's ability to respond perceptively to the children's needs. He held that the applicant was motivated not solely by the interests of the children, but also by a desire to win his own way, establish his superiority and punish the mother. His 'intractability and intransigence' had become clearer as the hearing had progressed. Furthermore, he was unable to accept him as an honest witness. By contrast, he found the mother to be an impressive, honest and dignified witness, who instinctively avoided conflict and who had a consuming concern for the children. The applicant's unreasonable conduct of the litigation and the disparity in the parties' means justified the order for indemnity costs.
The applicant sought permission to appeal. In July 2001, the Court of Appeal adjourned the application, to consider it at an oral hearing, with the appeal to follow if permission was granted. By that stage the applicant had instructed new counsel in the Children Act proceedings.
On 24 July 2001, Mr Justice Singer refused to terminate the order of 23 May.
(b) The judgment in the ancillary proceedings
On 24 July 2001, Mr Justice Singer gave judgment in the ancillary proceedings, in which he was highly critical of the applicant's integrity and motivation. Assessing whether it was plausible that the applicant would exaggerate his liability to the Revenue so as to leave less money for the mother to claim, the judge referred to the Children Act case, saying,
“That experience has fortified me in the conclusion which I have reached about his character and his conduct. He is intensely determined to succeed, apparently at whatever cost. He reacts very strongly, vigorously and manipulatively to what he sees as opposition to him. ... In the child-related proceedings he persuaded me by his conduct of them that he had lost sight of the children's interests in pursuit of his campaign to punish [the mother] for in effect defying his wishes and bringing the marriage to an end. ”
He found that the applicant had been forced to acknowledge dishonesty in his dealings with the Inland Revenue, for example in connection with a “sham” sale of a property, about which he had provided misleading information to his accountant. He had also been selective in the extent and timing of his production of documents. Despite his adverse findings as to the applicant's character however, the judge explicitly stated that his orders were not intended to reward the mother nor to penalise the applicant, and his conduct had not weighed in the overall decision.
On 30 July 2001, Mr Justice Singer ordered that the applicant pay the mother a lump sum of GBP 1.9 million, forthwith, together with her costs of approximately GBP 500,000, assessed on an indemnity basis. He also ordered that a receiver be appointed, with wide powers to take steps to realise the lump sum payment, including a power to enter into negotiations to try and resolve the title defect with Site B. The applicant applied for permission to appeal.
4. The appeals
In October and November 2001 separate constitutions of the Court of Appeal granted permission to appeal and heard detailed submissions from counsel in both sets of proceedings.
(a) Appeal in Children Act proceedings
The applicant submitted that the judge should not have continued to sit in the Children Act proceedings having already made up his mind against the applicant in the ancillary proceedings and he had dismissed the application as vexatious and hopeless. The judge had intervened in a hostile manner, had uncritically accepted the mother's case and dismissed the evidence of the head teacher and the welfare report to the extent that they were supportive of the applicant's case, for example in relation to the wishes of the children. The applicant submitted that the judge's conduct had hampered his presentation of the case to the extent that he had felt compelled to withdraw, leading to flawed and inappropriate orders. He also argued that the judge's reaction to his withdrawal from the proceedings had been intemperate and he had made punitive and unnecessary orders, including ordering the applicant to pay the mother's costs on an indemnity basis.
The Court of Appeal gave judgment in the Children Act proceedings on 7 December 2001. The court, which had read a complete transcript of the hearing at first instance, observed that,
“For us the atmosphere and the emotions with which spoken words were charged are largely lost. Thus any judgment upon whether or not [the applicant] received a fair and impartial trial is necessarily imperfect. On the one hand it can be said that [the applicant] is a robust and skilful man who had educated himself in the processes of litigation and who was throughout accompanied by his solicitor. On the other hand he had already conceived a conviction that the judge had taken against him by the end of the marathon hearing of the money case and he had expressed that conviction by seeking a fresh tribunal for the trial of the Children Act applications.”
The court noted that the judge's task was exceptionally difficult, he having concluded that the applicant had been devious and dishonest in the ancillary case and having then refused to release the later proceedings to another judge. From a careful reading of the transcripts the court considered that the judge's interventions had been plainly excessive, notwithstanding the submissions on behalf of the mother to the effect that the interventions had been necessary for the judge to retain control of the proceedings. At one stage during cross-examination of the mother, there was an exchange between the judge and the applicant covering two pages of transcript, during which the witness did not speak at all.
The court did not accept, however, the submission that the applicant had had an equal or even a fair prospect of success in his application for residence, as on any objective analysis his application was an attempt at a radical departure from an established pattern of care and the conclusion of the children and family reporter was obviously an indicator of the probable outcome. The court went on to say,
“We gain from the transcripts the distinct impression that in the relationship between the litigant and the judge there quickly emerged a conflict of strong personalities and a clash of arms that drew the judge transiently from the judgment seat to join [counsel for the mother] in the arena in harrying the husband. ... But the number of interventions that bear the mark of hostility or unfairness are small in the overall total and do not justify setting aside the fundamental order that these two children should reside with their mother. We are satisfied based on the totality of the evidence that we have read that the judge reached the correct conclusion on this issue.”
The court found that the applicant had not discharged the high burden necessary for it to conclude that he had been driven to withdraw from the proceedings because the hearing was unfair. It did, however, consider that the applicant's submission about the judge's reaction to his withdrawal had “great force”. The judge had proceeded to make orders which were, individually and in their totality, “immoderate”. Mr Justice Singer in his judgment had rejected the applicant's case without qualification and had marginalised the welfare report, without hearing from the author. The court found that the reduction in contact and the prohibition on communication had a punitive flavour and that there was no evidential basis for the non-molestation injunction. The application for an order under section 91 of the Children Act and the suggestion that the applicant see a psychiatrist were nothing but flourishes of advocacy. Both the recital to the order and the requirement to surrender the passports served to stigmatise the applicant in an unwarranted way. The indefinite prohibition on publication was unnecessary. There was no sustainable basis for the order for indemnity costs.
The court concluded however that the prospect of returning the case for trial in the High Court, given the costs involved and the inevitable damage that was being caused to the children, was too unappealing to contemplate and it would therefore substitute its own order for that of 23 May 2001. The court also observed that, since May 2001, the applicant had not seen the children except by chance, having declined to exercise contact on the basis of the judge's order. The residence order was retained, but the recital and paragraphs 2 to 11 of the order were deleted. Contact was ordered on alternate weekends and with half the school holidays, as recommended by the welfare officer. Given the applicant's unreasonable rejection of that proposal prior to the trial and his insistence on calling various lay witnesses the court considered it was not unfair that he should have to pay the costs, but they would be assessed on the standard basis (by which any doubt as to whether costs were reasonably incurred or reasonable and proportionate in amount is resolved in favour of the paying party).
(b) Appeal in ancillary proceedings
A separate constitution of the Court of Appeal gave judgment in the ancillary proceedings on 13 December 2001. The applicant submitted, inter alia, that the judge had reached the wrong conclusions on the evidence, but even on the basis of his findings, the orders made were inexplicable and unjustified. He submitted that the personal animosity of the judge in the Children Act proceedings had carried over into and affected the ancillary judgment.
The Court of Appeal considered that Mr Justice Singer's judgment was detailed and careful and that the judge's conclusions were on the whole “carefully reasoned and manifestly justifiable on the evidence”. The judge's extensive survey of the issues had led him to be strongly critical of the applicant's disclosure and integrity. The court had reserved judgment so as to ensure that the applicant's arguments as to bias in the Children Act proceedings could be aired first. The court noted that in those proceedings the appeal court had not found that the hearing had been unfair overall. Moreover, although the judge had referred in his judgment to his findings against the applicant in the Children Act proceedings, his conclusions in the ancillary case were not dependent on those findings.
The court noted that Mr Justice Singer's findings as to Site B were the crux of the judgment and lay behind the only real issue on appeal. The judge had accepted that there could be major difficulties with an attempted sale of Site B and broadly found in favour of the applicant's submissions as to the potential effect of the title defect in this respect. The judge had clearly been suspicious about the fact that the applicant had not initially relied on the alleged title defects and considered that the applicant may not have revealed the full strength of his hand, so that the true position would only come to light when the applicant actually sought to realise the value of the property. However, he indicated that for valuation purposes he would not treat Site B as a readily realisable asset. The court noted the uncontested evidence to the effect that if a sale of Site B presented problems, then so would any attempt to borrow against it as security.
The court concluded that the applicant's submissions as to bias were generally without validity. In fact, up to its final conclusions, the judgment was a 'detailed and masterly appraisal'. The court did however agree that, given his findings on Site B, it was difficult to see how the judge could have expected the applicant to raise the necessary funds immediately. The court further found that there was no justification for instant enforcement through receivership, which was almost unknown in ancillary relief proceedings. The provision for instant payment and enforcement was oppressive. Given the judge's findings as to the potential problems with Site B, the applicant could only realistically be expected to satisfy the order from the rental income, which was a long term approach. The option of remitting the matter for retrial was unthinkable given the costs already incurred. The court considered that it would take six years to pay off the lump sum by that route and amended the order, allowing the appeal to that extent. The powers of the receiver were also limited to collection and distribution of the income from Site B. The court did not interfere with the costs order.
On 18 November 2002 the House of Lords dismissed the applicant's petition seeking leave to appeal.
B. Relevant domestic law and practice
In a case of alleged bias, the test for the court to consider was set out in R. v. Gough ([1993] A.C. 646). Having ascertained the relevant circumstances, the court should ask itself whether there was a real danger of bias on the part of the relevant member of the tribunal, in the sense that he might unfairly regard with favour or disfavour the case of a party to the issue under consideration, a test confirmed in the case of Locabail (UK) Ltd. v. Bayfield Properties ([2000] 2 WLR 870). In the recent case of Magill v. Porter; Magill v. Weeks [2002] 2 AC 357, Lord Hope stated:
“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention that the judge in the High Court proceedings displayed a lack of impartiality. He also complained that the Court of Appeal, despite criticising the conduct of the judge in the Children Act proceedings, failed to conclude that the applicant's right to a fair trial had been violated in both sets of proceedings. The Court of Appeal had therefore failed to offer any, or any sufficient, remedy for the breach.
THE LAW
The applicant complained that the Court of Appeal, despite making findings of unfair conduct in the Children Act proceedings, failed to hold that his right to a fair trial had been violated and thereby failed to remedy the unfairness at first instance.
Article 6 § 1 of the Convention provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
The Court recalls that there are two aspects to the requirement of “impartiality” for the purposes of Article 6 § 1. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect (see, amongst many authorities, Findlay v. the United Kingdom, judgment of 25 February 1997, Reports 1997-I, p. 281, § 73; Mellors v. the United Kingdom, (dec.), no. 57836/00, 30 January 2003, unreported). As regards the first head, the Court recalls that the personal impartiality of a judge must be presumed until there is proof to the contrary (see Piersack v. Belgium, judgment of 1 October 1982, Series A no. 53, pp. 14-15, § 30).
The Court notes that the mere fact that a judge takes a strongly negative view of an applicant's case or indeed character does not in itself amount to bias or personal prejudice. The trial judge is required to make an assessment of the witnesses before him and in the present case the judge gave detailed reasons for his adverse findings. The Court of Appeal was critical of the nature and extent of the judge's interventions and found that his reaction to the applicant's withdrawal from the proceedings had been intemperate. Whilst sharing the view that the behaviour of the trial judge in this instance was unacceptable, the Court notes that unduly harsh or even oppressive behaviour by a judge is not necessarily a reflection of personal prejudice. The Court notes however, the observation of the appeal court to the effect that, in the Children Act proceedings, the judge had, if only briefly, been metaphorically drawn from the judgment seat into the (adversarial) arena, a finding tending to indicate a lack of partiality. On the other hand, the court hearing the appeal in the ancillary proceedings did not find any substance in the allegations of bias. Neither did it consider that the adverse findings of the judge in the Children Act proceedings had affected his judgment in the ancillary case and emphasised that his findings in the latter case were manifestly justifiable on the evidence.
The Court does not however find it necessary to make a conclusive finding about whether the first instance tribunal lacked impartiality in either of the proceedings, because in determining issues of fairness for the purposes of Article 6 of the Convention, the Court must consider the proceedings as a whole, including the decision of the appellate court (Edwards v. the United Kingdom, judgment of 16 December 1992, Series A no. 247-B, § 34; C.G. v. the United Kingdom, no. 43373/98, judgment of 19 December 2001, § 35). It is not its function to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for these courts to assess the evidence before them. The Court's task is to ascertain whether the proceedings in their entirety were fair (see Doorson v. the Netherlands, judgment of 26 March 1996, Reports 1996-II, p. 470, § 67; Van Mechelen and Others v. the Netherlands, judgment of 23 April 1997, Reports 1997-III, p. 711, § 50; and more recently, S.N. v. Sweden, no. 34209/96, § 42, ECHR 2002-V).
The Court considers that the real issue in the case is whether the Court of Appeal was capable of remedying any perceived unfairness at first instance. It is well established in the Court's case law that a defect at first instance may be remedied on appeal, so long as the appeal body has full jurisdiction. Where a complaint is made of a lack of impartiality on the part of the decision-making body, the concept of “full jurisdiction” involves that the reviewing court not only considers the complaint but has the ability to quash the impugned decision and either to take the decision itself, or to remit the case for a new decision by an impartial body (De Haan v. the Netherlands, judgment of 26 August 1997, Reports 1997‑IV, §§ 53-54; and more recently, Kingsley v. the United Kingdom, no. 35605/97, § 58, 7 November 2000, unreported).
The Court notes that the appeal court in both cases reached its own conclusion as to the appropriate orders, on the basis of the transcripts of the hearings in the High Court, the judgments of Mr Justice Singer and the applicant's counsel's submissions. In doing so, the court considered whether it was appropriate to remit the matter for retrial, but in both cases, came to the conclusion that it was 'unthinkable' to do so in view of the huge costs which had already been incurred in the proceedings. In the Children Act case the court also considered the ongoing damage to the children caused by the proceedings and the fact that the applicant had not seen the children except by chance since the hearing in May 2001. There was, however, no limit on the court's jurisdiction which operated to hinder its ability to review the first instance decision effectively.
The applicant's complaint concerns the conclusions which the appeal courts reached in the two sets of proceedings, rather than the conduct of the proceedings before the Court of Appeal. The applicant complains that the appeal court in the Children Act case clearly formed the view that the judge had failed in his duty of impartiality, because he had formed a subjective bias or prejudice against the applicant, and that the court therefore erred in failing to go on to conclude that the hearing before the judge at first instance violated the applicant's right to a fair trial under Article 6 of the Convention. It does not seem to this Court however, that the Court of Appeal had in fact reached such a clear finding.
Furthermore, although the Court of Appeal in the Children Act proceedings was critical of the judge, it carefully considered whether the criticisms were such as to warrant quashing the primary order that the children should reside with their mother. It found that given the fact that the mother had been the children's primary carer and given the acknowledged likelihood of an order broadly following that recommended by the welfare officer, the applicant could not claim that there was even a fair prospect of a residence order being made in his favour. The applicant submits that the hearing was unfair whether or not the judge had reached the correct conclusion on that central issue, and that the judge's findings should therefore have been overturned in their entirety. However, the Court notes that while the appeal court had the competence to quash the lower court's orders as a whole, it did not, on its assessment of the evidence, consider it necessary or appropriate to do so.
The applicant complains that in the ancillary proceedings the order for indemnity costs was not the subject of detailed argument, but that appears to be a criticism of the applicant's counsel rather than the court. The Court of Appeal did not amend the High Court's order for costs as the appeal court in the Children Act case had done. The Court notes that whilst the court hearing the ancillary appeal found that the judge had erred in some of the orders he ultimately made, it did not find any substance in the complaints of bias, and moreover it found the strong criticisms of the applicant's integrity and disclosure in his financial dealings to be manifestly justifiable on the evidence. It did however overturn those parts of the order concerning payment and enforcement which it found unjustified and oppressive.
As to procedure before the appeal court, the Court notes that the applicant was represented by leading counsel and had ample opportunity to convince the Court of Appeal in both proceedings of the merits of his argument. The court hearing the children case considered a full transcript of the first instance proceedings and both courts had the advantage of reading the lengthy, detailed and reasoned judgments of Mr Justice Singer. In fact, the Court of Appeal did find in favour of the applicant to a large extent and allowed both appeals in part. The Court considers that it does not follow from the fact that the appeal courts did not overturn the High Court judgments in their entirety that they failed to remedy the first instance defect (see mutatis mutandis, C.G. v. the United Kingdom cited above, §§ 36 and 41). There was no reason why the Court of Appeal should not have agreed with the High Court judge's reasoning where it found it manifestly convincing. Accordingly, the Court finds that the proceedings were not overall unfair and that the application is manifestly ill-founded. It must therefore be declared inadmissible under Article 35 §§ 3 and 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Michael O'BoyleMatti Pellonpää
RegistrarPresident
Full & Egal Universal Law Academy