CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 mai 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }    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)