AS TO THE ADMISSIBILITY OF
Application No. 22410/93
by Geoffrey and Margaret ROBINS
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 18 January 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 14 March 1993 by
Geoffrey and Margaret Robins against the United Kingdom and registered
on 3 August 1993 under file No. 22410/93;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to:
- the Commission's decision of 22 February 1995 to declare the
applicantion partly inadmissible and to communicate the remainder
to the respondent Government for observations on its
admissibility and merits;
- the observations submitted by the respondent Government on
25 May 1995 and the observations in reply submitted by the
applicants on 28 July 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicants, husband and wife, are British citizens born in
1942 and 1943 respectively and resident in Crediton and London. The
facts as submitted by the applicants may be summarised as follows.
In 1982, in a case brought against the applicants by their
neighbours, Mr. and Mrs. T., the applicants were found liable to pay
damages of £ 2, 363.69 in respect of damage caused by them to the
neighbours' sewage. In 1988, the applicants instituted an action
against Mr. and Mrs. T., alleging that their sewage was seeping onto
and under the applicants' land. The applicants were legally aided.
By a judgment of 1 May 1991, the applicants' claims were
dismissed. Legal aid taxation of the applicants' costs was ordered.
The applicants' appeal was dismissed by the Court of Appeal on
19 October 1992.
On 31 May 1991 solicitors representing Mr. and Mrs. T. requested
a further hearing before Judge Clarke to determine costs. On 5 August
1991 Judge Clarke ordered that the parties appear before him on the
issue of costs. Hearings were held on 3 September and again on
19 September 1991. As the question of costs could not be resolved
because of factual disputes and conflict between the parties, on
24 September 1991 Judge Clarke made a direction that the enquiry should
be adjourned and not restored until a number of points concerning the
applicants' entitlement to legal aid had been clarified.
On 25 November 1991 Exeter Combined Court Centre, where the case
was pending, received a report from the Legal Aid Board outlining
events from the time the applicants first applied for legal aid. On
14 January 1992 a copy of this report was sent to the parties who were
informed that the matter could now be re-listed upon receipt of a time-
estimate.
On 4 February 1992 the Legal Aid Board informed the Court that,
for the purposes of further legal aid, a fresh Department of Social
Security assessment of the applicants' means was required in view of
the fact that the applicants were not living together any longer.
On 11 August 1992 an order was issued for a hearing date to be
fixed.
In a letter from the Department of Social Security, filed with
the Court on 10 November 1992, it was explained that a delay of
9 months had been caused because those undertaking the assessment of
means were under the wrong impression that the applicants had
separated.
The restored hearing was held on 12-13 November 1992 before Judge
Darwall-Smith as Judge Clarke had fallen ill. On 13 November 1992,
after hearing Mrs. T., the applicants and an officer from the Legal
Aid Board, Judge Darwall-Smith found that the balance of money retained
by the Legal Aid Board (£ 4,599) should be paid to the defendants
forthwith. He further found that, notwithstanding that the applicants
had originally been eligible for legal aid with a nil contribution,
they were liable to pay Mr. and Mrs. T. a sum of £6000 (payable in
instalments of £100 per month) in respect of costs.
The applicants sought legal aid to appeal against this decision.
By notice dated 11 January 1993, the applicants applied for an
extension of time for appealing as it had expired on 11 December 1992.
Subsequently queries were raised by one of the Civil Appeals
Office lawyers as to whether leave to appeal, as well as an extension
of the time for appealing were required, and the matter was referred
to the Registrar.
Counsel's opinion dated 11 August 1993 indicated that there was
a ground of appeal in that the judgment of Judge Darwall-Smith
indicated that he took into account an irrelevant or improper
consideration in reaching his decision, namely, the applicants'
dwelling house which is exempt under the relevant legal aid
regulations.
In September 1993 and again in March 1994 the applicants
contacted the court asking why there was a delay in dealing with the
application.
On 10 April 1994 the Registrar directed that leave to appeal
against the costs order was not required. On 15 April 1994, the Civil
Appeals Office wrote to the applicants informing them that their
application had been referred to the Full Court to determine the
question of the extension of time and, if granted, to hear the appeal
immediately. The applicants were requested to lodge the relevant
documents by 2 May 1994.
Subsequently the applicants had to apply several times for
extensions of this time limit as they were unable to obtain some of the
documents. All applications for extension were granted.
The applicants had approached the county court with a view to
obtaining the notes of the relevant judgments which had to be lodged
with the Court of Appeal. By letter dated 17 June 1994, the Chief
Clerk informed the applicants that he had difficulty in providing the
documents requested but that the notes of the hearing of 3 September
1991 were being prepared. It later transpired that the judges's notes
had been either lost or did not exist, but that a tape of the hearing
of 12-13 November 1992 had been located. The applicants were unable
to afford the transcription of the tape and the Civil Appeals Office
having been informed, the County Court were instructed to pass the
tapes to the Court of Appeal for transcription from public funds. The
applicants were also informed in a letter of 16 November 1994 from the
Chief Clerk of the County Court that the notes of the other hearings
were not considered necessary at this stage and the file was to be
transferred to the Court of Appeal once the transcript was received at
which point further directions would be forthcoming.
The applicants contacted the respective offices regularly by
telephone and by mail asking for more expeditious handling of their
requests. On 1 March 1995 the Chief Clerk in a letter to the
applicants apologised for the delay in answering to their latest faxed
letter and informed them that the search for Judge Clarke's notes had
been fruitless which meant that either such notes did not exist or had
been lost.
On 6 March 1995 some bundles of documents on the case were lodged
with the Court of Appeals Office. On 29 March 1995 a Lord Justice
directed that the application be listed ex parte in the first instance
before the full court. A hearing was listed for 19-20 June 1995. R
Relevant domestic law and practice
Regulations as regards legal aid provide that in assessing the
assisted person's means, the resources of his or her spouse are treated
as his or her resources unless the person concerned and the spouse are
living separately and apart.
Jurisdiction to extend time limits at the Court of Appeal stage
is conferred by Rules of Court on the full Court of Appeal, the single
Lord Justice, and the Registrar of Civil Appeals. Where there are good
reasons why the appellant's documents cannot be lodged within the time
limit provided, an extension may be granted. A hearing date will not
normally be arranged until the appeal documents have been lodged and
any defect remedied. Rules of Court provide that it is for the
appellant to obtain, and pay for, transcripts.
COMPLAINTS
The applicants complain under Article 6 para. 1 of the Convention
about the length of the costs proceedings following the judgment of
1 May 1991.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 14 March 1993 and registered
on 3 August 1993.
On 22 February 1995 the Commission declared inadmissible the
applicants' complaints under Articles 6, 8, 13 and 14 of the Convention
concerning the civil proceedings ending with the decisions of 1982 and
1991. The Commission decided to communicate to the respondent
Government pursuant to Rule 48 para. 2(b) of the Rules of Procedure the
applicants' complaint under Article 6 para. 1 of the Convention insofar
as it concerned the length of the cost proceedings.
The Government's written observations were submitted on
25 May 1995 after an extension of the time-limit fixed for that
purpose. The applicants replied on 18 July 1995.
THE LAW
The applicants complain of the length of the cost proceedings
following the judgment of 1 May 1991. They rely on Article 6 para. 1
(Art. 6-1) of the Convention which, insofar as relevant, provides as
follows:
"1. In the determination of his civil rights and obligations
... , everyone is entitled to a ... hearing within a reasonable
time ..."
The Government accept that the proceedings at issue concerned the
determination of the applicants' civil rights and obligations within
the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. They
also agree that the period to be taken into account runs from the
judgment of 1 May 1991.
The Government submit that the cost proceedings in the
applicants' case were generally complex because the financial resources
of all parties had to be taken into account and because there existed
factual discrepancies. Allegations were made by the parties about
undeclared assets, which required to be investigated.
Furthermore, the misapprehension that the applicants had
separated, which caused a delay of 9 months between February and
November 1992, was due to an impression created by the applicants,
albeit unintentionally. Also, the delay of 11 months between 15 April
1994 and 6 March 1995 was the result of the applicants' failure to
produce certain documents.
At the same time the courts handled the matter with expedition
and arranged production of transcripts at public expense. Moreover,
what was at stake for the applicants in the cost proceedings was
nothing more than their liability for legal costs, an inevitable and
predictable consequence when a plaintiff loses civil proceedings.
The applicants reply that the proceedings have been pending for
more than four years and one month.
They submit that the allegations of the other party to the cost
proceedings as regards undeclared assets were not connected with the
delays. In any event, a legal system should not allow one party to
civil proceedings to suffer because of the vexatious allegations of
another.
The applicants contend that the delays were the responsibility
of the Legal Aid Board, the Department of Social Security and the
courts, which were all state organs.
Moreover, it is untrue that the applicants, albeit
unintentionally, caused a misapprehension that they had separated. In
fact, the Department of Social Security apologised expressly for having
committed a mistake.
Most of the delays were due to inactivity on the part of the
state organs involved, whereas the applicants made regular telephone
enquiries, sent letters and took all other necessary measures. Thus,
the delay of 11 months between March 1994 and April 1995 was not in any
way caused by the applicants as the required documents could only be
obtained from the courts who, despite the applicants' active efforts,
did not provide them.
The Commission finds that the applicants' complaint under Article
6 para. 1 (Art. 6-1) of the Convention concerning the length of the
cost proceedings raises serious questions of fact and law which are of
such complexity that their determination should depend on an
examination of the merits. This complaint cannot, therefore, be
regarded as being manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention, and no other ground for
declaring it inadmissible has been established.
For these reasons, the Commission, unanimously,
DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE,
without prejudging the merits of the case.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy