SMITH AND SMITH v. THE UNITED KINGDOM

THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application nos. 49167/99 and 62129/00
by Tony SMITH and Owen SMITH
against the United Kingdom

The European Court of Human Rights, sitting on 9 October 2001 as a Chamber composed of

MrJ.-P. Costa, President,
MrW. Fuhrmann,
MrL. Loucaides,
SirNicolas Bratza,
MrP. Kūris,
MrK. Traja,
MrM. Ugrekhelidze, judges,
and Mrs S. Dollé, Section Registrar,

Having regard to the application introduced on 6 December 1998 and registered on 28 June 1999,

Having regard to the Court’s partial decision of 28 September 1999,

Having regard to the observations submitted by the respondent Government and the observations submitted in reply by the applicants,

Having regard to the applicants’ further application (no. 62129/00) introduced on 4 July 2000 and registered on 25 October 2000,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Tony Smith and Mr Owen Smith, are United Kingdom nationals. They live in London, England. The Government are represented by their Agent, Mr H. Llewellyn of the Foreign and Commonwealth Office, London.

The facts of the case, as submitted by the parties, may be summarised as follows.

In 1985 the first applicant became a tenant in a house owned by R. His brother, the second applicant, and his sister subsequently moved in.

The property was later acquired by the London Borough of Hackney (“the Council”) under a compulsory purchase order following protracted negotiations with R. The Council notified the applicants that, as of 8 August 1988, they would henceforth be tenants of the Council. The applicants were also informed that, because the house was in bad condition, arrangements would be made for them to be re-housed. The applicants refused this offer and made unsuccessful attempts as of May 1990 to purchase the property from the Council.

On 25 May 1990 the applicants brought separate actions (Cases 90 14921 and 90 14922) in Shoreditch County Court against the Council for failure to repair the property. The Council did not file a defence and on 24 May 1991 the applicants recovered damages together with costs in default.

The applicants’ further application of 14 June 1992 to recover additional compensation on the ground that the Council was in continuing breach of its covenant to repair and in contempt of court was dismissed on 24 April 1992. The applicants maintain that they brought this action out of concern for their health, the deteriorating state of the property and the Council’s failure to carry out work agreed by both sides’ surveyors. The Government consider that this was not a separate action but an application initiated within the confines of the two previous applications.

The applicants refer to the fact that the Council sought a possession order against the second applicant in early 1992 on grounds of non-payment of rent. In its particulars of claim, the Council mentioned that the property was let to the second applicant on a weekly secure tenancy. The action, referred to by the applicants as Case 92 15917, was dismissed by Shoreditch County Court on 22 September 1992.

The second applicant brought an action in negligence (Case 91 04925) against the Council in or about July 1991 after he was injured when part of the bathroom ceiling fell in. On 5 April 1993 the second applicant applied in the same proceedings through an amendment to his statement of claim for a mandatory order requiring the Council to put the property into a good and proper condition. The second applicant relied in this connection on section 11 of the Landlord and Tenant Act 1985, which implied a covenant to repair into leases of dwelling-houses of less than seven years’ duration. He also invoked section 4 of the Defective Premises Act 1972.

The latter application, which was joined by the first applicant, came before Judge Graham QC on 22 April 1993. The applicants asserted for the first time in their amended particulars of claim, dated 5 May 1993, that they were secure tenants of the entire property and not separate tenants of individual rooms and, on that account, could lawfully compel the Council to repair the property as a whole. According to the Government, this was a necessary averment if the applicants were ever to establish a right under domestic law to buy the property. The Council maintained in its amended defence, dated 4 June 1993, that it had no statutory repair obligation because the property was not let as a separate dwelling, but was in the common occupation of more than one tenant. According to the Government, if the Council was correct in its contention, there was no implied repairing obligation under section 11 of the Landlord and Tenant Act 1985. Hitherto the Council’s argument had been that there was no relationship of landlord and tenant between it and the applicants.

Judge Graham QC proposed that the issue of whether or not the applicants enjoyed a landlord-tenant relationship with the Council be tried as a preliminary issue on 26 August 1993. However, on 25 August 1993 the parties, by consent, agreed to dismiss the preliminary issue, to adjourn generally the applicants’ application for a mandatory order to repair and to set down for trial the applicants’ claim for damages. It would appear that, while the Council henceforth accepted that it was in a landlord-tenant relationship with the applicants, it denied that the applicants were secure tenants within the meaning of section 79 of the Housing Act 1985.

On 19 October 1993 the first and second applicants’ claims for damages were heard and Judge Graham QC awarded them a total amount of GBP 6,000. Judge Graham QC adjourned the applicants’ application for a mandatory order to compel the Council to repair the property pending an inspection of the property. Accordingly, Case 91 04925 was thereafter confined to this particular issue which had, by agreement of the parties on 25 August 1993, been suspended indefinitely.

On 5 May 1994 the applicants issued a writ against the Council to recover the costs of certain repairs which they had carried out on the property at their own expense (Case SD4 01609).

On 6 June 1994 the applicants applied for judgment in default. The court failed to act on the applicants’ application and no judgment was entered. The Council’s defence was received at the court on 20 July 1994 and, although late, was admitted to the file.

On 1 August 1994 Judge Graham QC notified the parties that automatic directions for the trial of the action applied. These directions consisted of a standard time-table for preparation of trial and setting time-limits for the completion of the necessary preparatory steps. On 4 October 1994 Judge Graham QC dismissed the applicants’ applications of 3 and 26 September 1994 to have his automatic directions dismissed and the case transferred to the Court of Appeal. The applicants applied to the Court of Appeal for leave to appeal against this decision.

On 17 June 1994, and in parallel to their action to recover the costs which they had incurred in carrying out repairs to the property (Case SD4 01609), the applicants sought to reactivate their claim (Case 91 04925) for a mandatory order to repair in view of the Council’s continuing failure to carry out repair work on the whole of the property. The applicants submitted a schedule of necessary repairs drawn up by a surveyor engaged by them and dated 2 June 1994. A joint inspection of the property by the applicants’ surveyor and a Council surveyor then took place, giving rise to serious disagreements between the parties.

The matter was heard before Judge Graham QC on 15 August 1994. At the hearing on that date, the Council maintained, inter alia, that the applicants were not secure tenants within the meaning of the Housing Act 1985 by reason of the fact that they did not have separate dwellings in the property. On that understanding, the Council averred that it could not be compelled to repair the whole of the property. Judge Graham QC ordered that the proceedings be adjourned and gave further directions for the trial of the action, including the issue as to whether the applicants had been granted a tenancy of the entire property, or only two rooms plus shared facilities.

The applicants applied to the Court of Appeal for leave to appeal against Judge Graham’s decision of 15 August 1994 to adjourn the proceedings. The Court of Appeal considered their application at the same time as their application for leave to appeal against Judge Graham QC’s automatic directions in their action to recover the costs incurred in repairing the property and to have that action (Case SD4 01609) transferred to it.

In its judgment of 1 February 1995 the Court of Appeal dismissed the applicants’ request for leave to appeal against the adjournment decision of Judge Graham QC in Case 91 04925. Lord Justice Ward found that Judge Graham QC was undoubtedly right to allow an adjournment and to give consequential directions for the resolution of the applicants’ status in law with respect to the Council.

The Court of Appeal also dismissed the applicants’ other two applications of 3 and 26 September 1994 in the context of Case SD4 01609. In so doing, Lord Justice Ward expressed his surprise at the fact that the applicants had not been given judgment in default in Case SD4 01609, in view of the fact that the Council was late in filing its defence. Lord Justice Ward added:

“For reasons which are not at all clear, the local County Court does not appear to have acted expeditiously on that application. As far as I can see from the papers placed before us, no defence was filed in this matter until 20 July. Notwithstanding that lapse of time, the County Court did not enter judgment in default of defence and the defence having been duly received, the court issued the automatic directions to ensure that the matter could go for trial. Although I express surprise at the inactivity of the County Court, I hasten to assure the [applicants] that it would not much matter, for had a judgment been entered in default of defence, it is as certain as night follows day that the local authority would have been given leave to discharge it and would have been given leave to enter the defence which is now properly on record. There is therefore no possible complaint that the [applicants] can make but for the fact that the Court was slow in dealing with its paperwork.”

Lord Justice Ward also expressed sympathy with the applicants’ feeling of frustration with the conduct of the proceedings and, without in any way impugning his fairness, suggested that Judge Graham QC might wish to reconsider his further participation in the case.

Following the Court of Appeal’s decision, Case SD4 01609 was to proceed to trial following the time-table laid down in the automatic directions. The action was automatically struck out on 15 November 1995 because the applicants failed to request a hearing date within the requisite time. An order in respect of costs of the proceedings was made on 25 February 1997. According to the Government, the applicants applied unsuccessfully in April 1997 to take further proceedings in connection with Case SD4 01609, which, in their view, remains struck out. The applicants refer to an Order of Judge Greenburg, dated 23 April 1997, ordering that the action be adjourned generally with liberty to restore.

Meanwhile, on 26 August 1994, the Council had served notices to quit on the applicants. On 6 February 1995 the Council sought a repossession order against each of the applicants. The applicants filed a defence on 23 June 1995 contending that they were secure tenants of the property. They also counter-claimed for damages in respect of the Council’s failure to repair the property after 19 October 1993 and sought a court order that the Council effect repairs on the property. These proceedings became Cases SD5 12397 and 12398.

The Council’s claim for possession and the applicants’ counterclaim for damages and a mandatory repair order were eventually heard by Judge Diamond QC in Central London County Court on 19 March 1996 together with the remaining issue in Case 91 04925, namely whether the applicants were entitled to a mandatory order to repair.

Prior to that date, on 11 March 1996 (the date initially set for the hearing), the Council had applied for an adjournment on the grounds inter alia that it had not been notified of the date of the hearing and that the applicants had not complied with an earlier order for directions. The applicants opposed the application. Judge Diamond QC accepted to delay the beginning of the trial for not more than two days, considering that any longer period would be undesirable. The judge noted that the matter should have been decided long ago. He observed in this connection that the Council had wasted time since the beginning of the litigation and that it should have raised at an earlier stage in the litigation their defence that the applicants were not secure tenants, rather than insisting that the Council was not the applicants’ landlord only to abandon this stance later on. Judge Diamond QC also observed that, although they were represented at earlier stages of the litigation, it was unfortunate that the applicants were not legally represented at the instant trial.

Judge Diamond QC gave directions for the trial of the actions. The directions made it clear that the first and crucial issues to be determined were (a) whether the applicants were granted a tenancy of the entire property or were only tenants of one room each with a right to share other parts of the property and (b) whether they were secure tenants within the meaning of section 79 of the Housing Act 1985. In identifying these issues, Judge Diamond QC observed that the first applicant had informed him that he was no longer seeking a court order that the Council comply with its repairing obligation (the remaining issue in Case 91 04925). The applicants deny this interpretation of their intention at the time. According to the Government, in the light of the first applicant’s concession it was unnecessary for Judge Diamond QC to decide the claim for a mandatory order.

At the trial on 19 March 1996 the applicants objected to the Council’s reliance on an memorandum dated 13 July 1988 which the Council maintained had been drawn up by a council official, M.P., who was not available to be cross-examined in court on its contents. In that statement M.P. recorded that she had visited the property before it was acquired by the Council and noted that the applicant and his brother occupied separate rooms in the property. Judge Diamond QC was satisfied that the memorandum indicated that the applicants rented individual rooms in the property from their former landlord, R., under separate tenancy agreements. The judge did not accept the applicants’ submission that R. had let the property to them as a family unit and found that R.’s testimony in support of this assertion was not reliable. The judge attached weight to a letter dated 13 May 1993 which R.’s surveyor, S., sent to the Council, the contents of which confirmed for the judge that there was a letting of individual rooms to the applicants. Judge Diamond QC found additional support in the evidence before him that this state of affairs continued after the Council had acquired the property, including the fact that the applicants themselves only began to assert after 5 May 1993 that they were secure tenants of the whole of the property.

With reference to the facts as found and to the provisions of section 79 of the Housing Act 1985 and to case-law thereon, Judge Diamond QC concluded in his judgment dated 19 March 1996:

“... that [the first and second applicant] are each tenants of one room of [the property,] with a right to share the use of the kitchen and bathroom, and ... that neither tenancy is a secure tenancy within section 79 of the Housing Act 1985.”

Normally the applicants would have been required to seek permission to appeal within four weeks of the decision of Judge Diamond QC. In the event, the applicants first contacted the Court of Appeal on 13 September 1996.

The applicants filed their bundles on 18 November 1996. A hearing date was set for 18 December 1996, but had to be postponed when it was realised that the applicants were only seeking to appeal against the Order of Judge Diamond QC in respect of their counterclaims and not in respect of the Council’s possession actions. The applicants were requested to clarify the scope of their appeal in order for their case to be re-listed.

On 14 January 1997 the applicants requested the Civil Appeals Office that their appeal be expedited. They were advised in turn that their request should be put in writing. No such request was ever received; nor did the applicants ever clarify in writing that they wished to appeal the order in the possession proceedings.

A further hearing was listed for 23 January 1997, but then adjourned when it was learned that the applicants had not supplied the transcripts of the proceedings before Judge Diamond QC. The transcripts were eventually supplied on 25 April 1997, with the result that a further hearing listed for 7 March 1997 had to be adjourned.

At a hearing on 20 June 1997, the Court of Appeal allowed the applicants’ application for an extension of time in which to appeal and granted leave to appeal. In the leave to appeal proceedings, Lord Justice Phillips acknowledged that the facts of the case raised potentially difficult questions of law as to the determination of the applicants’ status vis à vis the Council and urged them to obtain legal representation for the purposes of the appeal.

The applicants’ bundles for use at the appeal hearing were provided on 5 September 1997, following an extension of time. On being notified that the bundles were incomplete, the applicants supplied on 8 December 1997 the transcript of Judge Diamond QC’s judgment.

On 17 June 1998 the first applicant was informed that a legal aid certificate had been refused on the ground that “it appeared unreasonable that he should receive legal aid in the particular circumstances of the case.”

Before the Court of Appeal the first applicant, who appeared in person, contended that the trial judge had erred in admitting the statement of the Council official as set out in her memorandum of 13 July 1988. He contended that the memorandum did not bear the signature of M.P. but of another person. The Court of Appeal rejected that contention on the ground that it saw no reason to conclude that the signature on the memorandum was not that of M.P.

The applicant further maintained that the trial judge did not allow him to submit an affidavit of R., his former landlord, unless he called R. as a witness. The Court of Appeal dismissed this point, finding that the trial judge could properly exclude the affidavit since R., unlike M.P., was available to give evidence and was in fact willing to testify in court.

As to the applicant’s argument that the trial judge should not have admitted in evidence S.’s letter, the Court of Appeal noted that the trial judge had properly admitted the letter not as evidence of its contents but to allow the Council to rely on it to discredit R.’s credibility as a witness.

The Court of Appeal also found that the trial judge, Judge Diamond QC, could not be faulted for the manner in which he had handled applications for discovery of documents, observing that he had been correct in trying to get the case to trial rather than slowing down the proceedings through the grant of interlocutory orders. The Court of Appeal further found that Judge Diamond QC could not be criticised for refusing the Council’s request for an adjournment at the beginning of the trial. It noted that that decision was taken in the interests of making progress in an action after one year of inactivity in the proceedings and, the fact that an adjournment was refused, did not prejudice the applicants since they had known since 1993 or 1994 what the Council’s case against them was and had come to the trial prepared to answer that case. On that account, the applicants could not claim that they had been taken by surprise when the case started.

The applicants further maintained before the Court of Appeal that leave should be granted to allow them to adduce evidence which the trial judge had refused to admit. The Court of Appeal noted that the evidence relied on was new evidence which could not be introduced at that stage of the proceedings. The Court of Appeal found that there was nothing to suggest that the trial judge had refused the applicants leave to produce any evidence which could be properly produced at the time.

Sir Christopher Staughton, giving judgment, observed:

“It is quite true that the judge told [the first applicant] to sit down, and I dare say he did so in a fairly peremptory manner. The task of controlling a trial is often difficult and if the judge was at times peremptory I think we ought to forgive him for that. But there is no trace whatsoever in the transcript of the hearing of the judge refusing to allow the [the applicant and his brother] to give evidence of that nature.”

The Court of Appeal also refused to admit documents which the Council submitted to it later on in the appeal proceedings.

The Court of Appeal ruled that, even though there was a conflict of evidence, there was material upon which Judge Diamond QC was entitled to find that neither the applicant nor his brother could be deemed secure tenants, and that his direction on the law applicable to the dispute was correct. In the opinion of Sir Christopher Staughton, there were, contrary to the view of Lord Justice Phillips in the leave to appeal proceedings, no difficult questions of law involved in the case, and the trial judge had therefore been correct in proceeding with the trial rather than tolerating further delay in a very long-standing dispute.

Sir Christopher Staughton concluded:

“... having read the transcript (not every word of it but by far the greater part of it) it seems to me that in this difficult case the judge conducted the trial very fairly. I see no ground for interfering with the conclusion he reached and I would dismiss this appeal.”

As to Lord Justice Phillips’ observations in the leave to appeal proceedings that the facts raised potentially quite difficult questions of law as to the status of the applicants, Sir Christopher Staughton opined:

“We are not told what the quite difficult questions of law were. We can see none. The judge’s direction on the law seems to be correct.”

The Court of Appeal dismissed the applicants’ appeal in its judgment of 27 March 1998.

On 3 December 1998 the Appeals Committee of the House of Lords refused the applicant’s petition for appeal.

On 3 March 1999 the solicitors for the Council wrote to the Central London County Court seeking the re-listing of the possession proceedings. In a letter of 11 August 1999 the applicants objected to a decision of the Central London County Court that the actions should proceed to a Case Management Conference and then to trial. Their request for an adjournment was refused and a Case Management Conference was held on 15 October 1999.

The applicants did not appear at the Case Management Conference. In the applicants’ submissions they arrived late on account of traffic congestion and difficulties in locating the correct court room. The applicants state that the presiding judge, Judge Green QC, became hostile when they attempted to explain their late arrival and threatened them with contempt of court. They left the court room. Judge Green QC then gave certain directions regarding matters such as exchange of witness statements, preparation of documents for use by the court and listing. The Council’s actions for possession were listed to be heard on 15 December 1999, and the applicants’ counterclaims for damages beginning on 31 January 2000.

In the exercise of his discretion to allocate the costs of the proceedings and, it appears, as a result of the applicants’ decision to ignore the Case Management Conference (the applicants maintain that this is an incorrect view of the events), Judge Green QC (the applicants point out that the order incorrectly refers to Judge Ford QC) ordered the applicants to pay the Council’s costs of the Case Management Conference, summarily assessed at GBP 550. If the costs were not paid by 4.30 p.m. on 29 October 1999, the applicants’ defences to the Council’s possession action and their counterclaims were to be dismissed without further application. Permission to appeal against the order was refused.

The applicants did not pay the Council’s costs within the period allowed by Judge Green QC’s order; nor did the applicants apply to the court for a stay of the Order or an extension of time in which to pay. As a result, their defences to the possession claims and their own counterclaims were dismissed on 29 October 1999.

The applicants state that they subsequently applied to the Court of Appeal for leave to appeal against Judge Green QC’s order of 15 October 1999. The applicants maintain that the delay in applying for leave was due to the incompetent manner in which the Civil Appeals Office processed their initial application. The applicants state that they were only able to make their formal leave application on 23 December 1999.

The Council’s claims for possession proceeded to a hearing on 15 December 1999. The applicants did not appear at the hearing and, as a result, the actions had to be adjourned to the first open date. Since the applicants’ counterclaims were listed for hearing on 31 January 2000 but had been struck out, the possession proceedings were re-listed for that day. On 31 January 2000 Judge Green QC determined the possession actions in favour of the Council.

On 22 February 2000 the applicants applied for leave to appeal against the possession order of 31 January 2000 as well as a stay of execution pending the determination of their appeal.

The Council obtained an execution warrant in respect of the property on application to Shoreditch County Court. The applicants maintain that this warrant was executed on 17 July 2000 without notice having been given to them, and in disregard of their applications for leave to appeal.

On 18 July 2000 the execution of the warrant was suspended by Clerkenwell County Court on the application of the applicants in order to allow them to re-enter the premises, which had been boarded-up.

The applicants were allowed to re-enter the property on 25 July 2000. According to the applicants, on re-entering the property they discovered that the interior was in disarray, that documents were missing and that items of furniture had been damaged. The applicants maintain that the police failed to investigate these matters.

On or about 25 July 2000 the warrant for possession was suspended.

On 31 August 2000 the Court of Appeal refused leave in respect of the applicants’ leave applications of 23 December 1999 and 22 February 2000.

The applicants state that they are now homeless and that their home has been put up for sale.

THE LAW

Application No. 49167/99

The applicants complain about the unreasonable length of the litigation in which they have been engaged with the Council. They invoke Article 6 § 1 of the Convention, which provides in relevant part:

“In the determination of his civil rights and obligations..., everyone is entitled to a fair ... hearing within a reasonable time...”

The applicants maintain that the domestic courts failed to ensure that the proceedings were concluded within a reasonable time. They allege in this connection that the Council had been allowed to use delaying tactics to frustrate progress in the case and was never sanctioned for its failure to comply with court orders.

A.  The proceedings and period to be considered

The Government state that the period to be considered cannot be isolated from the nature and fate of the various civil rights which the applicants asserted over the course of their litigation.

They submit in this connection that the applicants’ request for a mandatory order requiring the Council to repair the property was abandoned during the hearing in Case 91 04925 before Judge Diamond QC on 19 March 1996 and no determination was made on their request. On that account, the reasonableness of the length of time taken to reach that stage cannot be the subject of a complaint under Article 6. In the alternative, the Government argue that if the Court were minded to consider that the applicants’ civil right to a mandatory order was in fact determined on 19 March 1996 in the proceedings before Judge Diamond QC, any complaint about the length of time taken to secure that determination (approximately three years) must be considered time-barred under Article 35 § 1 of the Convention.

The Government further submit that the applicants’ first claim for damages for failure to repair the property (Cases 90 14921 and 90 14922) was determined in their favour on 24 May 1991. Any complaint based on Article 6 § 1 concerning the length of those proceedings (one year) must also be considered time-barred.

As to Case 91 04925 in which the second applicant claimed damages for personal injury arising out of the Council’s alleged breach of duty, these proceedings were concluded before Judge Graham QC on 19 October 1993. Once again, any complaint about the length of time taken to have that determination must be considered time-barred under Article 35 § 1 of the Convention.

Furthermore, Case SD4 01609, commenced on 5 May 1994, was struck out on 15 November 1995. That date marked the determination of the civil right which the applicants asserted in those proceedings after a period of approximately eighteen months’ litigation. Any complaint based on Article 6 in respect of these proceedings must be considered time-barred.

The Government further submit that, as regards the applicants’ counterclaim for damages in Cases SD5 12397 and 12398, it would appear that these claims were effectively determined by the rejection by the House of Lords of the applicants’ petition for leave to appeal on 3 December 1998. On that understanding, the counterclaims were determined three years and five months after the proceedings were commenced. The Government assert that from this period should be deducted the period of slightly less than seven months between the decision of Judge Diamond QC and the application for permission to appeal from that decision, it being understood that the short additional period of eleven days between the order of the Court of Appeal and the lodging of the applicants’ petition had to be added. Accordingly, the relevant period to be considered is two years and ten months. In the alternative, the Government suggest that the applicants’ civil rights under this head were determined when their counterclaim for damages was dismissed on 29 October 1999. On that basis, the relevant period is three years and nine months.

As to the Council’s actions for possession which were also the subject of Cases SD5 12397 and 12398, the Government submit that these were effectively determined by the House of Lords on 3 December 1998, three years and ten months after the initiation of the proceedings. The above-mentioned seven-month period should also be deducted from this period, leaving a period of three years and three months. In the alternative, the applicants’ civil rights under this head were determined on 31 January 2000 when the County Court granted possession orders against the applicants, orders which could not be the subject of appeal. On that basis, the relevant period is approximately four years and five months, bearing in mind the need to deduct the previously mentioned seven-month period.

The applicants consider that their litigation with the Council has to be seen as a continuum, particularly in the light of the Council’s own admission early on in Case 92 15927 that the second applicant was a secure tenant of the property, the Council’s initial and wrongful insistence that it was not in a landlord-tenant relationship with them, the Council’s denial of responsibility for the repair of the property and the Council’s failure to comply with its repair obligations. These factors lay at the root of the cases which they either brought or defended. The applicants further stress that the proceedings were unnecessarily prolonged on account of the domestic courts’ failure to recognise them as secure tenants, despite clear evidence to the contrary and the Council’s own initial acceptance of their status. All throughout these various sets of proceedings they were in effect exhausting the remedies available to them in domestic law in order to vindicate their right to be recognised as secure tenants.

The applicants further maintain that the order made in Case 92 15917 on 20 October 1992 has not yet been complied with; the Council’s action for possession of their home is still continuing; Case 91 04925 is a continuation of Cases 90 14921 and 14922 and, like Case SD4 01609, has not yet been resolved.

The Court observes that the property at issue has been the subject of much litigation between the applicants and the Council ever since the applicants’ occupancy of the property in 1988. It is the applicants’ principal contention that the various sets of proceedings which they either initiated against the Council or defended in the face of writs issued by the Council cannot be seen as discreet legal actions but have to be viewed as part of an overall and continuing procedure intended to exhaust the domestic remedies available to them. That procedure, in their submission, centred on the right asserted by them to be recognised as secure tenants within the meaning of the Housing Act 1985, to compel, in consequence, the Council to repair the property and to resist the Council’s attempts to evict them from what was their home.

The Court observes that it would have been open to the Council to bring possession proceedings against the applicants shortly after the latter’s occupancy of the property with a view to an early resolution of the applicants’ tenure. However, it did not do so until 6 February 1995, the date on which it first sought a possession order against the applicants. It notes in this connection that the Council did not enter a defence to the actions brought by the applicants on 25 May 1990 (Cases 90 14921 and 90 14922) and, moreover, maintained in the initial stages of the second applicant’s negligence action (Case 91 04925) that it was not the applicants’ landlord. However, it is not for the Court to speculate on the Council’s responses to these claims. It does accept, however, that the Council took a different stance once the applicants began to assert before the domestic courts the right to be considered secure tenants of the entire property; thereafter the Council was determined to resist the applicants’ claims. The Court does not consider that the argument about the possession issue can be considered to have already been joined in Case 92 15917, having regard to the fact that the Council’s claim for possession was based on the second applicant’s failure to pay rent. The Council’s claim for possession in what became Cases SD5 12397 and 12398 was, on the other hand, framed in broader terms. Moreover, Case 92 15917 was never dispositive of the issue of whether the applicants were to be considered secure tenants in law since no determination of that issue was made by the domestic court hearing that action.

The Court further notes that the applicants themselves asserted for the first time on 5 May 1993 in the framework of Case 91 04925 that they were secure tenants of the property, an argument which, as stated above, was shortly afterwards contested by the Council in order to dispute that it had a statutory obligation to repair the property. That issue eventually came before Judge Graham QC at a hearing on 19 March 1996 at the same time as the Council’s claim for possession and the applicants’ counterclaims, firstly, for damages and, secondly, for an order that the Council carry out repairs to the property (Cases SD5 12397 and 12398). It is plainly the case that the resolution of the tenancy issue was crucial for the determination of both the Council’s possession action, the latter initiated by writ dated 6 February 1995, and the applicants’ counterclaims, which were set out in their defence to the Council’s action and filed on 23 June 1995. The Court also notes that no formal decision was ever reached by the domestic courts on the matter left outstanding (a request for a mandatory repair order) in Case 91 04925 following Judge Graham QC’s decision of 19 October 1993 to award the applicants damages in their negligence action. Although the applicants deny that they ever declared in the proceedings before Judge Diamond QC an intention to abandon their request for the mandatory repair order which formed part of Case 91 04925, it is nonetheless true that the request has never been activated by them. In any event, the decision eventually taken on their counterclaim on this matter in Cases SD5 12397 and 12398 can be considered to have finally settled this issue.

With these considerations in mind, the Court finds that the only proceedings whose length must be assessed from the standpoint of the “reasonable time” requirement of Article 6 § 1 began on 6 February 1995, the date on which the Council formally initiated possession proceedings (Case SD5 12397). The proceedings, which later became Cases SD5 12397 and 12398, ended on 31 August 2000 with the Court of Appeal’s decision to refuse the applicants’ application for leave to appeal against the possession order granted by Judge Green QC on 31 January 2000 and the same judge’s decision dismissing their counterclaims. The length of the other cases relied on by the applicants (Cases 90 14921 and 14922: Case 91 04925;Case 92 04295; Case SD4 01609 does not fall for determination, having regard to the dates of the decisions reached in these actions, the date of introduction of the instant application and to the application of the six-months rule laid down in Article 35 § 1 of the Convention.

The impugned proceedings thus lasted approximately five years and five months, over five instances.

The Court will assess the reasonableness of this period in accordance with the circumstances of the cases and having regard to its established criteria: the complexity of the case, the conduct of the parties, including that of the Council and the domestic courts in handling the case, and what was at stake for the applicants (see, among many other authorities, the Robins v. the United Kingdom judgment of 23 September 1997, Reports of Judgments and Decisions 1997-V, p.p. 1810, § 33).

The Court will make a global assessment of the issues on the basis of the parties’ submissions.

B.  The parties’ submissions

1.  The complexity of the case

The Government state that Cases SD5 12397 and 12398 did not raise any factual or legal issues of particular complexity. However, they draw attention to the fact that the proceedings were considered at each possible level of the domestic legal system. Furthermore, the applicants’ appeal from the County Court required two hearings before the Court of Appeal. As to the applicants’ challenge to the decision of Judge Diamond QC, the Government point out that the applicants’ complaint did not concern the law which he applied but rather the evidence which was admitted and not admitted by him. As a result, the applicants’ appeal could only be determined upon a detailed consideration of the full transcripts of the events at the trial. The need for transcripts of evidence required an adjournment of the hearing for permission to appeal on 23 January 1997. It took until 25 April 1997 before the parties could supply transcripts which had to be produced from tapes supplied by the County Court.

The applicants state that the Court of Appeal observed that their case involved not only difficult questions of analysis of evidence but “potentially difficult questions of law”. They maintain and reiterate that the Council knew as from 1988 that they were secure tenants and that the complexity of the litigation is the direct result of the Council’s own dishonesty in concealing the true position. The applicants dispute the Government’s view that they confined their challenge to Judge Diamond QC’s findings to evidential issues. They contend that their arguments went to the heart of their claimed legal status, namely secure tenants.

2.  The conduct of the applicants

The Government draw attention to the applicants’ substantial delay in seeking permission to appeal against the decision of Judge Diamond QC. Furthermore, the applicants did not take any steps to obtain the evidence which was necessary to allow the Court of Appeal to ascertain whether permission to appeal should be granted. As a result, the applicants’ application had to be adjourned on 23 January 1997 until 25 April 1997. In addition, the applicants were required to file bundles of documents for the consideration of the Court of Appeal by 23 July 1997. However the applicants did not complete this requirement until 8 December 1997, almost five months later. Moreover, they did not seek expedition of the hearing of their petition by the House of Lords although requested by the Civil Appeals Office of the Court of Appeal to submit a written application for this purpose. In the event, the petition proceedings were doomed to failure from the outset and should not have been pursued. The applicants’ decision to pursue their petition had the result of causing an additional and unnecessary delay of eight months.

The Government state that the applicants continued to be guilty of delaying the further proceedings in Cases SD5 12397 and 12398. Unlike the Council, they took no steps to procure the re-listing of these actions following the decision of the House of Lords. They point out that the applicants failed to appear at the Case Management Conference on 15 October 1999 and at the possession hearing on 15 December 1999.

The applicants, for their part, deny that they can be held responsible for any period of delay in any of the different sets of proceedings The applicants maintain that they attended the Case Management Conference but were intimidated into leaving the court room by Judge Green QC. Any delay in applying for leave to appeal against Judge Green QC’s Order of 15 October 1999 was the fault of the Civil Appeals Office. This delay resulted in the Council making an abusive and successful application to obtain a possession Order on 31 January 2000. Moreover, the Civil Appeals Office failed to despatch its request for bundles in due time and that the onus lay on the Council to supply the transcripts of the proceedings before Judge Diamond. The applicants further assert that they cannot be faulted for invoking the appellate courts, including the House of Lords, having regard to what was at stake.

In the applicants’ submission, the length of the various cases can only be explained by the conduct of the authorities and their handling of the relevant proceedings.

3.  The conduct of the authorities

With reference to Cases SD5 12397 and 12398, the Government maintain that the Council could conceivably be criticised for only one short delay, which ensued when Judge Diamond QC adjourned the trial for two days in order to permit it to complete the task of preparing its evidence in the case. They reiterate their view that the other cases cannot be impugned from the standpoint of the reasonable time requirement in Article 6 § 1, since any complaints to that effect are time-barred under Article 35 § 1 of the Convention. This is equally so as regards any criticism levelled by the Court of Appeal in Case SD4 01609 at the Shoreditch County Court’s failure to enter a default judgment in favour of the applicants.

The Government stress as far as Cases SD5 12397 and 12398 are concerned, that no period of undue delay can be imputed to the domestic courts.

The applicants reiterate their view that the Council resorted to delaying tactics to achieve their objective, namely to have them evicted. They submit in this connection that the action to have the property at issue repaired has taken over five years and ten months, while the possession actions have exceeded five years. The applicants contend that the domestic courts have allowed the various proceedings to drag on, have refused to sanction the Council’s refusal to comply with court orders early on in the proceedings and the judges hearing the actions have been on occasions “vindictive and malicious” in their attitude towards them. The applicants draw attention, inter alia, to the fact that, although refusing their request for an adjournment, the Court of Appeal granted an adjournment to the Council to enable it to submit a document. Furthermore, listing errors by the courts have been ignored. The applicants also point out that the Court of Appeal in the first leave to appeal proceedings was critical of the inactivity of the county court in Case SD4 01609 and the “inexplicable delay” in dealing with that case.

C.  The Court’s assessment

The Court is prepared to assume that the proceedings were complex. Whether the applicants were secure tenants within the meaning of section 79 of the Housing Act 1985, as alleged by them, involved an assessment of facts on which there was no common ground between the parties. Witness testimony had to be heard and objections were made by the applicants to the admissibility of certain documentary evidence relied on by the Council, as well as to Judge Diamond QC’s general handling of the trial. It is to be further noted that Lord Justice Phillips, at least, found on appeal that the facts of the case raised potentially difficult legal issues.

The Court cannot but observe also that the applicants acted as litigants-in‑person, which undoubtedly hampered the establishment of facts and slowed down court procedures. However, their lack of legal representation was not of their own choosing and the applicants are not to be faulted for acting as litigants-in-person even though this may have added to the complexity, and hence the length, of the case. Suffice it to note that the proceedings at issue involved five instances, including a hearing before Judge Diamond QC, a hearing on appeal before the Court of Appeal, a failed petition to the House of Lords, a re-listing of the possession proceedings following a Case Management Conference and an application to the Court of Appeal for leave to appeal against the possession Order made on 31 January 2000. In the Court’s view, the applicants are not to be criticised for availing themselves of the domestic remedies which were available to them in order to resist being evicted from their home.

As to the applicants’ claim that the Council was guilty of delaying tactics which were never sanctioned by the domestic courts, the Court notes that, following the Council’s initiation of the possession proceedings on 6 February 1995, that party cannot be said to have been responsible for any significant periods of delay which prolonged the outcome of the proceedings. The Council complied with Judge Diamond QC’s decision to limit its request for an adjournment to two days. Apart from this delay, the Council would appear to have prosecuted the possessions proceedings and defended the applicants’ counterclaims with reasonable diligence. Indeed, following the decision of the Appeals Committee of the House of Lords to reject the applicants’ petition to appeal, the Council took steps shortly afterwards to have the possession proceedings re-listed before the County Court.

The Court does not consider that any blame can be attached to the domestic courts as regards the time taken to process Cases SD5 12397 and 12398 through to their final conclusion. It notes that Judge Diamond QC was concerned to ensure that the crucial issue as to whether the applicants could be considered secure tenants in law was resolved as quickly as possible and gave clear directions in this connection. As noted previously, the applicants contested Judge Diamond QC’s determination up to the Appeals Committee of the House of Lords. It further notes that the applicants’ inexperience in court procedures resulted in delays in the listing of their application for leave to appeal to the Court of Appeal. Although the applicants are critical of the advice and service which they received from the Civil Appeals Office, it is nonetheless the case that the Court of Appeal took a generous view of their failure to comply with time-limits and other procedural matters.

The Court does not accept the applicants’ contention that the delay in resolving their status in law was prolonged on account of the domestic courts’ failure to have regard to facts and evidence which, in their view, clearly showed that they were secure tenants. The Court recalls that in its partial admissibility decision of 28 December 1999 it rejected the applicants’ challenge under Article 6 to the fairness of the domestic proceedings. It confirms that decision and recalls that it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed the rights and freedoms protected by the Convention (see, among many other authorities, García Ruiz v. Spain [GC], no. 30544, § 28, ECHR 1999-I). Although the applicants highlight that the domestic courts overlooked their claim that the Council had already considered them secure tenants shortly after their occupancy of the property, it is nevertheless the case that the applicants were unable to adduce any court decision in support of their claim. The applicants’ status was ultimately resolved in Cases SD5 12397 and 12398 on the basis of the evidence adduced by the parties before the domestic courts. It is not for the Court to gainsay the conclusion reached on that point (see the Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45-46).

The Court reiterates that it is cannot speculate on the reasons which led the Council not to assert at a much earlier stage its claim that the applicants were not secure tenants. It would observe, however, that the applicants were aware from the outset of their occupancy that the Council wished to acquire the property and to re-house the applicants. In these circumstances, and given their obvious concern to buy the property, the applicants failure early on to obtain a court order declaratory of their rights may also be questioned.

It cannot be overlooked that there was much at stake for the applicants as regards the outcome to Cases SD5 12397 and 12398. At the same time, it is equally true that had the possession issue been resolved speedily in the Council’s favour they would have been evicted from the property much sooner than was the case.

Making a global assessment and for the above reasons, the Court considers that the applicants’ complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

Application no. 62129/00

In the above application, introduced on 4 July 2000 and registered on 25 October 2000, the applicants raise a number of complaints regarding the fairness of the proceedings involving the Council which continued after the Court’s partial decision of 28 September 1999. In the applicants’ submission, the manner in which they were treated by the courts in those proceedings, the decision to award possession to the Council, and the manner of enforcement of the possession order, give rise to violations of Articles 6 and 8 of the Convention. They further maintain, inter alia, that their right to be considered secure tenants has been ignored, and that they have been harassed by the authorities, prevented from entering their home, ultimately evicted and left homeless and, moreover, are victims of discrimination on account of their racial origin. The applicants invoke Article 14 of the Convention, taken alone or in conjunction with Articles 6 and 8 thereof.

The Court observes that it is not required to revisit the applicants’ challenges to the fairness of the proceedings which were examined in its partial decision of 28 September 1999. The applicants’ complaints under Article 6 were declared inadmissible. That decision is final.

As to their complaints about the fairness of the final stages of the possession, execution and leave to appeal proceedings, the Court finds that the facts relied on do not disclose any appearance of a breach of Article 6 of the Convention. In the first place, the fact that the Council obtained a warrant to enforce the possession Order while their leave to appeal application was still being considered, and without notice to them, cannot be said to have prejudiced the outcome of their leave application since they managed to have the execution of the warrant suspended. As to Judge Green QC’s decision of 15 October 1999 to eject the applicants from the court room, the Court notes that the proceedings at issue were devoted to procedural matters related to the further planning of Cases SD5 12397 and 12398. As such they did not involve the determination of the applicants’ “civil rights” within the meaning of Article 6 § 1. To that extent, Article 6 is inapplicable and this particular complaint is to be rejected as being incompatible ratione materiae with the provisions of the Convention.

The Court does not find either that the facts relied on give rise to any appearance of a breach of Article 8. The applicants have been evicted from their home. However, the eviction was carried out pursuant to a lawful court order following detailed consideration of the applicants’ claims to be secure tenants. The Court sees no reason to doubt that the interference with the applicants’ right to respect for their home was a necessary measure taken in the interests of the protection of health or of the rights asserted by the Council to ownership of the property under the Housing Act 1985.

The applicants complain about damage to their property and to items in it. However, it does not appear that they have taken any measures to sue the Council for alleged failure to prevent third parties from having access to the property. Furthermore, there is nothing in the case-file which suggests that Council officials are responsible for the alleged acts of vandalism and theft.

As to the applicants’ complaint under Article 14 taken alone or in conjunction with the above-mentioned Articles, the Court observes that the applicants have not adduced any evidence which would lay the basis of a claim that they have been discriminated against by the courts or other authorities in the exercise of their rights under these provisions on grounds of race.

For the above reasons the Court considers that the complaints raised in application no. 62129/00 are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Joins the remainder of application no. 49167/99 to application no. 62129/00;

Declares inadmissible the remainder of application no. 49167/99 and application no. 62129/00 as a whole.

S. DolléJ.-P. COSTA
RegistrarPresident

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