The European Commission of Human Rights sitting in private on
12 May 1986, the following members being present:
MM. C. A. NØRGAARD, President
G. SPERDUTI
J. A. FROWEIN
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
G. TENEKIDES
S. TRECHSEL
B. KIERNAN
A. S. GÖZÜBÜYÜK
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs G. H. THUNE
Sir Basil HALL
Mr J. RAYMOND, Deputy Secretary to the Commission
Having regard to Art. 25 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (Art. 25);
Having regard to the application introduced on 23 November 1983 by
H.W-J. against the United Kingdom and registered on
26 January 1984 under file No. 10782/84;
Having regard to the report provided for in Rule 40 of the Rules of
Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, Mr H.W-J, born in 1925, is a solicitor by
profession at present residing in England.
He has been practising as a solicitor in Dorset for 24 years in his
own firm, known as Wallace-Jones and Company. His firm specialises in
property and probate matters. During the existence of his firm he
used the telephone services of the Post Office and the name of his
firm was included in the local telephone directory for the Bournemouth
area. In 1981 responsibility for telephone services was passed to
British Telecommunications (Telecom) by the British Telecommunications
Act 1981 and a new directory was issued in November 1982.
The name of the applicant's firm was omitted from this directory and
also from the trade directory (Yellow Pages) which was issued by
British Telecom (BT) in January 1983. On complaining to BT, it was
pointed out to him that Section 23 of the 1981 Act provides that no
proceedings in tort can lie against the Corporation in respect of any
loss of damage suffered by a person by reason of an error in or
omission from a telephone directory (1).
The applicant's name was absent from the directory for a period of
18 months and from the Yellow Pages for a period of 12 months. He
claims that the consequent loss of business was considerable, as he
would normally expect to acquire two or three new clients per week as
a result of telephone enquiries. He considers that he will have lost
at least £30,000 during this period, in addition to the loss of
existing good will.
_______________
(1) Section 23 (1) of the British Telecommunications Act 1981:
No proceedings in tort shall lie against the Corporation
in respect of any loss or damage suffered by any person
by reason of
(a) failure to provide, or delay in providing, a tele-
communication service, apparatus associated therewith
or a service ancillary thereto;
(b) failure, interruption, suspension or restriction
of a telecommunication service or a service ancillary
thereto or delay of, or fault in, communication by
means of a telecommunication service; or
(c) error in, or omission from, a directory for use
in connection with a telecommunication service.
...
---------------
He states that efforts have been made by his Member of Parliament to
secure a settlement, without success, and that his complaint against
BT falls outside the competence of the Parliamentary Commissioner of
Administration (the Ombudsman). By a letter dated 28 January 1983 the
solicitor to BT pointed out that there was no contractual liability to
him as there was no contract between himself and BT - the telephone
service being supplied by virtue of statutory powers. On
24 February 1983 a further ex gratia offer was made of the equivalent
of one year's free rental of his telephone, the cost of an
advertisement in a local newspaper once a month for six months and, if
required by the applicant, the interception of calls to his home
telephone number to direct business callers. This offer and a further
ex gratia offer of £200 in a letter of 20 July 1983 was rejected by
the applicant.
COMPLAINTS
The applicant complains that there has been a breach of Article 6
para. 1 of the Convention (Art. 6-1) in that his civil right to pursue
a remedy before the United Kingdom courts has been expressly excluded
by Section 23 of the 1981 Act.
He states that he had no alternative to utilising the services of
British Telecom but is denied a legal remedy in respect of its
negligence.
He also complains of a breach of Article 13 of the Convention
(Art. 13).
He states the object of the application is (a) to secure compensation
in respect of his business loss; (b) to ensure that any future error
from the directory carries with it the right for the individual to
obtain adequate and reasonable compensation for such negligence and/or
breach of contract.
SUMMARY OF THE OBSERVATIONS
Respondent Government
Domestic law and practice
The British Telecommunications Act 1981 transferred from the Post
Office to a new public corporation known as British Telecom (BT) power
to provide telecommunications and data processing services.
Telecommunications services were supplied to the public in the same
manner as under the Post Office Act 1969, that is, by virtue of
schemes made under statutory powers. With certain exceptions the
telecommunications service continued to be supplied without any
contractual relationship between the new corporation and users.
Exemption from liability in tort under the 1981 Act (Section 23 - see
FACTS) was similar to that contained in previous legislation, e.g. the
Telephone Act 1951 and Post Office Act 1969.
At the time of the omission of the applicant's entry from the
telephone directories, telephone services were provided under the
terms of the Telecommunications Scheme 1981. Paragraph 75 of the
Scheme empowered BT to take such measures as it thought fit to
mitigate any inconvenience which might be suffered by a subscriber in
consequence of an omission from a telephone directory notwithstanding
the existence of the exemption.
Every telephone directory published by BT contains on its first page a
statement that BT will not be liable in respect of any error or
omission from any directory. It also contains the following entry:
"Although we cannot reprint the directory we will try to mitigate the
inconvenience by suggesting one or more of a wide variety of measures,
including giving postage paid printed cards to send to contacts and
friends, paying for a notice in a local or trade press or, in the case
of telephone calls, having them re-directed. In special cases we may
consider allowing an ex gratia payment of a sum up to a year's
rental."
The telephone directory also outlines a complaints procedure.
Complaints should initially be taken up at the Area Office of BT
following which a reference could be made to the Regional
Headquarters. In the event of a customer continuing to be
dissatisfied, the Post Office Users National Council could be
consulted. This is an independent statutory body set up in 1969 which
could make representations on behalf of the complainant and take the
matter up with BT. If the customer remains dissatisfied, he could
take the complaint up with an independent complaints panel drawn from
members of the Chartered Institute of Arbitrators. After considering
the evidence a fellow of the CIA would make a recommendation which
would be circulated to all the parties concerned. Although such a
recommendation would not be legally binding, BT would normally
consider itself honour bound to accept it.
To succeed in establishing liability in negligence before the courts
in tort he would need to show that there was a recognised duty of care
owed to him by BT, that BT was in fact careless and that it was
reasonably foreseeable that damage would be suffered by him and damage
of the kind of which he complains. The United Kingdom courts have
traditionally been reluctant to allow the recovery of economic loss
without physical damage having also been caused.
Following the passing of the Telecommunications Act 1984 the powers
and duties of BT with respect to the provision of telecommunications
services were vested in a public company limited by shares (BTPLC). In
November 1984 50% of the shares in the company were sold to the public
and since that date BT has operated as a commercial enterprise. BT
now enters into contracts with its customers for the provision of its
services. It also limits its liability in contract and tort under the
terms of those contracts. Such terms are subject to the provisions of
the general law and to the Unfair Contract Terms Act 1977 under which
any provision of a contract with a consumer seeking to exempt or
restrict liability is subject to a test of reasonableness. With the
change in character of the undertaking it was considered no longer
appropriate for the new company to have statutory exemptions from
liability and thus Section 23 was repealed.
Admissibility and Merits
Article 6 para. 1 (Art. 6-1)
The Government submit that in the light of the nature of BT the duties
imposed on it by statute the relationship between the applicant and BT
belonged to the domain of public law. Accordingly, no civil right was
involved.
In the alternative, the limitation of liability was within the margin
of appreciation allowed to States. It pursued a legitimate aim and
was justified by the nature, scale and complexity of BT's operations
(Ashingdane case, Eur. Court H.R., judgment of 28 May 85, para. 57).
In particular:
- it is normal in the United Kingdom and elsewhere, for
commercial enterprises providing a service to the public, e.g.
transport operators, removals, warehouse men, cleaners, to do so on
contractual terms limiting or excluding liability in tort. Such terms
are lawful provided they are reasonable.
- there were more than 23 million entries in the local telephone
directories and 2.5 million entries in the yellow pages. BT could not
offer a fault-free service at a reasonable price. Any costs borne by
BT as a result of claims made against it would have to be made by
telephone users generally, there being no question of private profit.
- the provision of a public service at a reasonable cost was a
legitimate aim to be secured by the legal provisions which govern BT's
operations, including Section 23.
It is a feature common to the provision of telecommunications services
in many countries in Europe, the U.S.A. and elsewhere that there are
similar exemptions. Commonly, liability is limited to personal injury
or physical damage and compensation for economic loss is limited to a
refund of rental charges only. The restrictions in Section 23 are
not, therefore, unusual in the field of telecommunications services.
Finally the Government point out that the applicant did not accept the
offers of compensation made to him under BT's scheme of compensation,
nor did he avail himself of the opportunity for arbitration.
In addition, the applicant's access to court is not wholly excluded
since the Section 23 exemption was confined to loss or damage related
to omissions from a directory. It does not in practice restrict
claims against BT in respect of personal injury - death or physical
damage caused by its operations.
Finally, it is submitted that in the absence of Section 23 it would
have been open to BT to argue that such business loss was not
recoverable under ordinary principles of United Kingdom law.
Article 13 (Art. 13)
It is submitted that no separate issue arises under Article 13
(Art. 13) insofar as the applicant complains under this provision that
his right of access to the courts of the United Kingdom has been
limited by Section 23.
In addition, with reference to the Commission's Report in the case of
Young, James and Webster (Comm. Report. 14.12.79, para. 177) it is
submitted that Article 13 (Art. 13) does not require a remedy against
legislative provisions.
The applicant
The applicant states that his name and that of his firm were
completely eliminated from the 1982 directory after they had been
included for the previous 22 years. BT was well aware of the nature
of his profession which, at that time, forbade any form of advertising
other than that included in telephone or yellow pages directories. In
such circumstances, British Telecom should have realised the absolute
necessity of ensuring the accuracy of the relevant entry. A complete
omission was grossly negligent. Two months after the directory error
BT repeated the omission in the much smaller yellow pages directory
for the Bournemouth District.
Any legal action would be completely ineffective since a statutory
defence exists under Section 23 (1)(c) and an application to have the
matter struck out before reaching court would be a mere formality. In
a letter from BT dated 28 January 1983 it was stated:
"In the circumstances I am sure you will agree that there would be no
point in instituting legal proceedings where the relevant statutes
provide for clear exclusions of liability".
It is immaterial under Article 6 para. 1 (Art. 6-1) whether
proceedings would have been successful or unsuccessful since this
provision provides for a right to individuals to plead their case
before a tribunal.
It is not unreasonable that BT should be held responsible for the
occasional error which may creep into the directories. BT controls
and operates the only public telephone service in the United Kingdom.
As such their duty of care to the public is considerably greater than
that of a private company or even an individual.
Finally, the applicant points out that common law nuisance, defamation
and certain cases of trespass are obvious examples of matters where
the courts will award damages in the absence of physical injury or
physical damage.
Article 13 (Art. 13)
It is true that under the code of practice issued by BT, it is
possible to refer a complaint to arbitration. However, paragraphs 38
to 46 of Section 5 of the Code of Practice state that a claim for loss
of business occasioned by a fault or omission on behalf of BT is
expressly excluded from the arbitration process. The maximum award
under the Code of Practice amounts to no more than the annual rental
charge of approximately £100. Such an amount is considerably less
than consequential loss of business resulting from his firm's omission
from the directory and yellow pages.
THE LAW
1. As regards Article 6 para. 1 (Art. 6-1)
The applicant complains that he is unable to sue British Telecom (BT)
for alleged losses arising from the omission of his firm's name from
the telephone directory and yellow pages because of the existence of a
statutory immunity from liability in tort. He alleges a breach of
Article 6 para. 1 of the Convention (Art. 6-1).
The relevant part of Article 6 para. 1 (Art. 6-1) provides as follows:
"1. In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair and
public hearing within a reasonable time by an independent and
impartial tribunal established by law. ..."
In the view of the Commission, Section 23 of the Telecommunications
Act 1981 is to be regarded as a provision defining the extent of a
civil right and not as a provision removing the jurisdiction of the
civil courts.
The Commission recalls that Article 6 para. 1 (Art. 6-1) does not
confer on the Commission the competence to determine or review the
substantive content of the civil law which ought to obtain in a State
Party. Nevertheless the Commission has emphasised that a real threat
to the rule of law could emerge if a State were arbitrarily to remove
the jurisdiction of civil courts to determine certain classes of civil
action (See Ashingdane v. United Kingdom, Comm. Rep. 12.5.83,
para. 93; see also Dyer v. United Kingdom, No. 10475/83, Dec. 9.10.84,
paras. 1 - 11 to be published in D.R.).
Following the above approach, the scope of the Commission's review is
limited to examining whether the limitation of the civil claim in
question is arbitrary (see No. 10475/83, loc. cit., para. 7).
In the present case the Commission notes that Section 23 (1) of the
British Telecommunications Act 1981 states that proceedings in tort
will not lie in respect inter alia of omissions from "a directory for
use in connection with a telecommunications service".
The Commission notes that, in the field of telecommunications, such a
limitation of liability is considered to be an essential condition of
producing telephone directories which contain millions of user entries
(see above p. 5) as well as offering a telephone service to the public
at a reasonable cost.
Finally, the Commission notes the existence of a compensation scheme,
albeit of a limited nature, in respect of such omissions and that in
the circumstances of the present case an offer of compensation had in
fact been made.
In the Commission's view, therefore, the limitation of the applicant's
civil claims cannot be described as arbitrary.
The Commission concludes, therefore, that this part of the application
does not reveal a breach of Article 6 para. 1 (Art. 6-1) and must be
rejected as manifestly ill-founded within the meaning of Article 27
para. 2 of the Convention (Art. 27-2).
2. As regards Article 13 (Art. 13)
The applicant further complains that he is denied an effective remedy
in respect of his complaint.
Article 13 (Art. 13) provides as follows:
Everyone whose rights and freedoms as set forth in this Convention are
violated shall have an effective remedy before a national authority
notwithstanding that the violation has been committed by persons
acting in an official capacity.
However, both the European Court of Human Rights and the Commission
have held that this provision does not guarantee a remedy in respect
of complaints directed against legislative provisions as in this case
(see case of James & Others, Eur. Court H.R., judgment of 21 February
1986 para. 85; see also Young, James & Webster v. United Kingdom,
Comm. Rep. 14.12.79, para. 177).
This complaint must therefore be rejected as incompatible ratione
materiae with the provisions of the Convention within the meaning of
Article 27, para. 2 of the Convention (Art. 27-2).
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(J. RAYMOND) (C. A. NØRGAARD)