AS TO THE ADMISSIBILITY OF
Application No. 27435/95
by James Lockie THAW
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 21 May 1997, the following members being present:
Mrs. J. LIDDY, President
MM. E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
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 21 March 1994 by
James Lockie THAW against the United Kingdom and registered on 31 May
1995 under file No. 27435/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
27 November 1996 and the observations in reply submitted by the
applicant on 22 January 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1923 and resident in
Gateshead, Tyne and Wear. The facts as submitted by the parties may be
summarised as follows.
In March 1988, the applicant agreed to sell his house at
7 Kirkstone Gardens ("the property") in an attempt to avoid bankruptcy.
However, on the date of completion, 15 July 1988, the applicant's
solicitor advised him not to complete, since a bankruptcy petition had
been presented on 23 February 1988 and all his property was therefore
subject to bankruptcy proceedings. The applicant had already given the
intended purchasers, Mr. and Mrs. F, the keys and they had moved into
the property.
On 5 November 1988, the Alliance and Leicester Building Society,
which had a mortgage over the property, ordered the applicant to give
possession of the property within 28 days but did not then pursue
proceedings. Mr. and Mrs. F therefore continued to occupy the property
without having purchased it and without paying rent.
On 1 August 1989, Mr. and Mrs. F took action to obtain specific
performance of the contract for sale of the property. By letter dated
10 November 1989 the applicant's solicitors applied for legal aid to
defend these proceedings. The applicant wanted the property to be sold
on the open market by either the Building Society or the trustee in
bankruptcy since he believed that a better price would now be achieved
than the one he had agreed with Mr. and Mrs. F in March 1988. On
8 December 1989 legal aid was refused on the basis that inter alia the
applicant had not shown reasonable grounds for taking, defending or
being party to the proceedings.
On 18 May 1990 the Newcastle County Court ordered the property
vested in the trustee in bankruptcy to be transferred to Mr. and Mrs. F
upon payment of £34,000 plus accrued interest. On 20 February 1991, the
Registrar of the High Court of Justice in Bankruptcy refused the
applicant leave to appeal from that decision. On 30 April 1991 the
applicant lodged an appeal from the Registrar's order by way of an
application to a single High Court judge of the Chancery Division. On
5 July 1991, the applicant appeared before the Vice Chancellor who
overturned the order of 20 February 1991 and granted the applicant
leave to appeal out of time against the order of 18 May 1990. On
12 November 1992 a single High Court judge upheld the order of
Newcastle County Court of 18 May 1990 and dismissed the applicant's
appeal. The applicant appealed to the Court of Appeal, the appeal
being set down on 2 March 1993. In December 1993 the Civil Appeals
Office, having been in contact with the trustee in bankruptcy, informed
the applicant that the trustee in bankruptcy did not consent to the
appeal proceedings. The applicant sent a letter to the Civil Appeals
Office, received on 6 January 1994, that made representations about his
rights. On 13 January 1994 the applicant was informed that the Civil
Appeals Office would liaise further with the trustee. On 8 March 1994
the trustee further confirmed that consent to the appeal proceedings
would not be forthcoming and on 9 March 1994 the trustee joined the
other parties' (Mr. and Mrs. F) request that the applicant's
application for leave to appeal be dismissed. The Registrar of the
Civil Appeals Office declined to authorise disposal of the matter by
consent until further consideration could be given to whether the
trustee was fully competent to join in a request for dismissal of the
application. On 9 October 1996 a single Lord Justice of the Court of
Appeal dismissed, by consent, the applicant's application for leave to
appeal.
COMPLAINTS
The applicant complains of the length of proceedings under
Article 6 para. 1 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 21 March 19994 and registered
on 31 May 1994.
On 26 June 1996 the Commission decided to communicate the
applicant's complaint concerning the length of the proceedings to the
respondent Government and to declare the remainder of the application
inadmissible.
The Government's written observations were submitted on
27 November 1996, after an extension of the time-limit fixed for that
purpose. The applicant replied on 22 January 1997.
THE LAW
The applicant complains that the length of proceedings exceeded
a reasonable time, in violation of Article 6 para. 1 (Art. 6-1) of the
Convention.
Article 6 para. 1 (Art. 6-1) of the Convention provides, so far
as relevant, as follows:
"1. In the determination of his civil rights and obligations
... everyone is entitled to a fair and public hearing within a
reasonable time ..."
The Government consider that the applicant had no actionable
claim in relation to the property.
The Government state that taking into account the complexity of
the case, the proceedings, which they consider as commencing on 18 May
1990, were determined within a reasonable time.
The Commission notes that the proceedings began on 1 August 1989,
which was the date when Mr. and Mrs. F sought specific performance of
the contract for sale of the property. On 9 October 1996 a single Lord
Justice of the Court of Appeal dismissed the applicant's application
for leave to appeal against the decision of the High Court of
12 November 1992, thus terminating the proceedings.
The total duration of the proceedings was seven years and two
months.
The Commission considers that, in the light of the criteria
established in the case law of the organs of the Convention concerning
"reasonable time" (complexity of the case, conduct of the parties and
the conduct of the authorities dealing with the case), the application
raises serious issues of fact and law, including the question of the
applicability of Article 6 para. 1 (Art. 6-1) of the Convention, which
cannot be resolved at the present stage of the examination of the
application, but call for an examination of the merits.
For these reasons, the Commission, unanimously,
DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE,
without prejudging the merits of the case.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy