CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 juillet 1987

.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 }  AS TO THE ADMISSIBILITY   Application No. 10594/83 by J.H. MUNRO against the United Kingdom             The European Commission of Human Rights sitting in private on 14 July 1987, the following members being present:                   MM.   C.A. NØRGAARD, President                      J.A. FROWEIN                      S. TRECHSEL                      F. ERMACORA                      E. BUSUTTIL                      A.S. GÖZÜBÜYÜK                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                      G. BATLINER                      H. VANDENBERGHE                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 MM.   F. MARTINEZ                      C.L. ROZAKIS                 Mrs.   J. LIDDY                   Mr.   H.C. KRÜGER, Secretary to the Commission             Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 7 September 1983 by J.H. MUNRO against the United Kingdom and registered on 19 October 1983 under file No. 10594/83;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having regard to:   -        the Commission's decision of 13 March 1984 to bring the         application to the notice of the respondent Government and         invite them to submit written observations on its admissibility         and merits;   -        the observations submitted by the respondent Government on         12 July 1984 and the observations in reply submitted by the         applicant on 7 September 1984;   -        the Commission's decision of 11 October 1986 to invite the         parties to submit further observations in writing on the         admissibility and merits of the application;   -        the further observations submitted by the respondent         Government on 20 January 1987 and the further observations         submitted by the applicant on 28 January 1987.           Having deliberated;           Decides as follows:   THE FACTS           The facts as they have been submitted by the applicant's representatives, Messrs.   J.P. Mewies & Co., Solicitors of Ilkley, and Mr.   Anthony Lester QC of counsel, on behalf of the applicant, a British citizen born in 1936 and living in Yorkshire, who has been unemployed since May 1977, and which are apparently not in dispute, may be summarised as follows:           In December 1973 the applicant was appointed to the post of Personnel and Management Services Officer with a local authority.   In May 1977 the applicant returned from a long period of sick leave and was interviewed by his immediate superior, the Chief Executive of the local authority, in relation to a number of matters concerning his employment and his conduct in his post.   This interview had been preceded by correspondence between the Chief Executive and representatives of the applicant's union concerning the complaints and allegations which the Chief Executive was making against the applicant and which were to be the subject of a meeting on 25 May 1977.           The applicant's employment was terminated following that meeting.   The Manchester Industrial Tribunal ("the Tribunal") held in January 1978 that the applicant had been constructively dismissed ("the first decision").   In the course of the judgment, the Tribunal record that they did not regard the applicant as a reliable witness on questions of fact, describing him as unduly emotive and imaginative. The Tribunal stated that they unhesitatingly accepted and preferred the Chief Executive's evidence over that of the applicant, since they found the Chief Executive a frank and honest witness.   The local authority's application for a review of the Tribunal's decision was subsequently dismissed as was the applicant's request.           Thereafter the applicant took further proceedings before the Tribunal to establish whether he had been unfairly dismissed.   The hearing took place on 23, 24 and 26 October 1978 and on 22 November 1978 the Tribunal held the applicant's claim to fail ("the second decision").   The Tribunal held that the principal reason for the applicant's dismissal was his employer's belief that he had submitted incorrect car expense claims, which would constitute gross misconduct and justify summary dismissal.   In addition, other matters which formed secondary reasons for the dismissal included the failure to observe hours of work, absenting himself from his place of work without authority or permission, unsatisfactory performance of his duties, his inability to supervise, control and work with his subordinates and his taking of holidays to which he was not entitled. The Tribunal held that the applicant was given every opportunity to explain these matters, but that his explanations did not satisfy the Chief Executive.           The Tribunal's findings were quite clear in that they considered:           "On the evidence that we have heard and having considered         the documentary evidence adduced, we consider that (the         ex-employers) had reasonable grounds to form the view that         (the applicant) had in fact made wrongful claims for journeys         which he had undertaken by car and that there was sufficient         evidence for (the ex-employers) to reach the view that (the         applicant) had taken holidays to which he was not entitled;         that the holiday sheet had been altered in order to facilitate         taking of those holidays. ...   We consider and so find that the         principal reason for his dismissal was (the ex-employers')         belief that (the applicant) had submitted wrongful car expense         claims.   For a man holding the position which (the applicant)         held this would constitute, and we so find, gross misconduct;         it would justify (the ex-employers) summarily dismissing him."             The Tribunal then went on to state:           "We certainly dismiss any suggestion which has been introduced         by the applicant, that his dismissal had been engineered         politically or that (the Chief Executive) wished to be rid of         him.   The true position is that (the applicant's) dismissal         was brought about for the reasons referred to above; they were         reasons that related solely to his conduct and capability.   He         was given every opportunity to give explanations.   Those         explanations were not, in the view of (the Chief Executive),         satisfactory.   We consider that (the Chief Executive) was         fully entitled, having regard to the evidence before him, to         reach and form that view."             The Tribunal concluded that they were:           "quite satisfied ... in the circumstances, having regard to         equity and the substantial merits of the case, that (the         applicant's) dismissal was not unfair..."             There were no grounds upon which an appeal to the Employment Appeals Tribunal could be successful, since this could only consider appeals on points of law.           The applicant contends that the contents of letters sent by the Chief Executive to representatives of his union and to the Department of Employment on 9 March 1977 and 26 July 1977 respectively were libelous in alleging that he had made false returns for his car user expenses.   The applicant has provided evidence in the course of his application which he claims disproves the allegations made by the Chief Executive.           The applicant has sought legal advice with a view to issuing proceedings for libel against the Chief Executive of the local authority and the local authority itself on the basis of its vicarious liability.   On 1 September 1978 (that is, in the period between the first decision and the second decision) Counsel gave a written opinion on this question.           Counsel advised that whereas the Chief Executive's evidence before the Tribunal would be wholly privileged (i.e. could not form the basis of an action for libel) his correspondence with the applicant's union and with the Department of Education would be subject to qualified privilege.   Qualified privilege arises where the actions which were alleged to have been libelous result from the proper performance of the duties of the person who uttered the libel. Counsel therefore advised that in order to succeed in an action for libel the applicant would have to show that the Chief Executive had been motivated by malice and that his dominant motive in making the publications complained of was an improper one.   An improper motive is a motive which the court would not accept as a justification for the publication.   Counsel went on to advise that it was generally conclusive evidence of malice against an individual that he knew what he published was false or published it recklessly and without any positive belief that it was true.           Counsel then reviewed the specific evidence which the applicant had presented to him to support the contention that the Chief Executive was motivated by malice.   He concluded this assessment in the following terms:           "taken overall, the foregoing matters do, on the face of it,         constitute a fairly strong case that (the Chief Executive) was         malicious.   But a number of them require further amplification         or confirmation and, bearing in mind the different impressions         which (the applicant) and (the Chief Excecutive) made on the         (Tribunal), I find it impossible to say at this stage that the         chances of proving malice against (the Chief Executive) at a         trial are better than 50%."             Counsel continued by advising that in the event that malice was shown, the applicant could expect to recover "fairly substantial damages" amounting to between £1000 and £1500 for each publication.           Counsel did not however address himself to the question of the veracity of the statement made by the Chief Executive, the proof of which would be a complete defence in defamation proceedings.           The applicant, who has been unemployed since the termination of his employment with the local authority in question, and who ascribes his failure to obtain a further post despite his qualifications, to the refusal of the local authority, in particular the Chief Executive, to provide him with a reference, has been unable to pursue proceedings for libel in the absence of legal aid.   Under the terms of Sections 6 and 7 and clause 1 of Part II of Schedule 1 to the Legal Aid Act 1974, legal aid is not available in England and Wales for proceedings "wholly or partly in respect of defamation".   The applicant has nevertheless issued a writ of summons to initiate proceedings for libel against the local authority.   The writ is dated 25 July 1983, and claims as follows:           "The plantiff's claim is for damages for libel from the defendant         who by its employee (the Chief Executive) falsely and maliciously         wrote and published in a document dated 26 July 1977 to the         Department of Employment of and concerning the plaintiff and of         his honesty and competence."           This writ has been issued in order to preserve the cause of action for one year from the date of issue and in order to remain within the period of limitation for the action.   On several occasions the applicant has applied to renew and extend the writ, in view of the proceedings pending before the Commission.   If the applicant chooses to proceed with the action he must prepare a full statement of claim. The applicant submits that such a pleading would have to be settled by a barrister because of the complex nature of defamation proceedings.           The applicant contends that he is unable to pursue the libel action although he has a prima facie case, since he is in receipt of supplementary benefit from the Department of Health and Social Security and cannot afford the services of a solicitor and a barrister.   He argues that the highly technical and complex requirements of defamation proceedings in the High Court prevent him from proceeding unrepresented.   He contends that the absence of civil legal aid in these circumstances, coupled with the complexity of the proceedings themselves, deprive him of the right of access to court to vindicate his civil rights and specifically to pursue the proceedings for defamation.     COMPLAINTS           The applicant complains that he is denied access to court for the determination and/or enforcement of his civil rights by reason of the non-availability of legal aid under the Legal Aid Act 1974 in relation to proceedings "wholly or partly in respect of defamation". He further contends that the absence of legal aid in these circumstances prevents him from obtaining a fair and public hearing by an independent and impartial tribunal established by law.   He claims that he is discriminated against on grounds of property and his poverty from pursuing his civil rights.           The applicant contends that he has been subject to a difference in treatment on three different bases:           1.       The applicant has been treated less favourably         than persons seeking to enforce all other civil rights         before the ordinary courts.   Such persons are entitled to         legal aid upon satisfying the relevant criteria.           2.       The applicant has been treated less favourably         than the persons who have sufficient means to be able to         afford to bring legal proceedings to enforce their civil         rights.   Even if a contracting State is not obliged to         operate a system of civil legal aid as such under the         Convention, where a system does exist legal aid must be         provided without discrimination.           3.       The applicant has been treated less favourably than         certain public officials, such as police officers, who are         entitled to use public money to issue defamation proceedings.           The applicant invokes Articles 6 and 14 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 7 September 1983 and registered on 19 October 1983.           On 13 March 1984 the Commission decided to bring the application to the notice of the respondent Government and invite them to submit written observations on its admissibility and merits pursuant to Rule 42 (2)(b) of the Commission's Rules of Procedure.   The respondent Government's observations are dated 12 July 1984.   On 19 July 1984 the President of the Commission decided that legal aid should be granted to the applicant, who appointed Messrs.   David R. Pedley & Co., Solicitors of Keighley, West Yorkshire, to represent him.   The applicant's observations in reply to those of the Government are dated 7 September 1984.           On 10 December 1984 the Commission resumed its examination of the admissibility of the application, which it decided to adjourn.   On 7 March 1985 the Commission resumed its examination of the admissibility of the application which it again decided to adjourn pending the receipt of the parties' observations in Application No. 10871/84 (Dec. 10.7.86 unpublished).           On 16 September 1985 the applicant informed the Commission that he had appointed Messrs.   J.P. Mewies & Co., Solicitors, Ilkley, to represent him in place of his former representative.   On 22 October 1985 the applicant's new representatives informed the Commission that they had instructed Mr.   Anthony Lester QC of Counsel on the applicant's behalf.           On 12 December 1985 the Commission resumed its examination of the application, which it then decided to adjourn.           On 12 March 1986 the Commission resumed its examination of the admissibility of the application and decided to invite the parties to a hearing on the admissibility and merits.   On 19 June 1986 the President of the Commission decided that legal aid should be extended to cover work in the case up to and including the hearing scheduled for 12 November 1986.           On 11 October 1986 the Commission decided to cancel the hearing which it had proposed to hold on 12 November 1986 in the light of its decision on the admissibility of Application No. 10871/84. The Commission decided to invite the parties, pursuant to Rule 42 (3)(a) of its Rules of Procedure, to submit such further observations in writing on the admissibility and merits of the application in the light of that decision on admissibility as they considered necessary. The legal aid granted on 19 June 1986 was cancelled and replaced by legal aid to cover work in the case up to the close of the written submissions.           The respondent Government's further observations are dated 20 January 1987 and the applicant's further submissions are dated 28 January 1987.   SUBMISSIONS OF THE PARTIES     Submissions of the respondent Government     1.       Domestic law and practice           Legal aid           The availability of legal aid and the conditions on which it may be granted to a person to pursue civil proceedings in England and Wales is governed by Part 1 of the Legal Aid Act 1974 (as amended by the Legal Aid Act 1979 with effect from 28 April 1980) and the regulations made under it.   Section 7 of the 1974 Act provides that legal aid is available in connection with such proceedings as are set out in Part I of Schedule 1 to the Act, and is not available in connection with proceedings mentioned in Part II of that Schedule. Section 7 (2) of the 1974 Act provides that the provisions of Schedule 1 may be varied by regulations.   Proceedings wholly or partly in respect of defamation are excepted proceedings for this purpose under Part II of Schedule 1 to the 1974 Act.           The 1974 Act provides that legal aid shall consist of representation by a solicitor and, so far as necessary, by counsel, such representation to include all such assistance as is usually given by a solicitor or counsel in steps preliminary or incidental to any proceedings, or in arriving at, or giving effect to, a compromise to avoid or to bring to an end any proceedings.           To be eligible for legal aid, a person's disposable income and capital must fall within the limit specified for the time being in Section 6 of the 1974 Act.   In addition to these financial limits, Section 7 (5) of the 1974 Act provides that "a person shall not be given legal aid in connection with any proceedings unless he shows that he has reasonable grounds for taking, defending, or being a party thereto".           The new Section 7 (5A) of the 1974 Act, implemented on 28 April 1980, further provides that "a person may be refused legal aid if, in the particular circumstances of the case, it appears:-           (a)      unreasonable that he should receive it;           (b)      more appropriate that he should receive assistance by way                 of representation".           Section 15 (1) of the 1974 Act requires the Law Society to make arrangements for securing that legal aid is available as required under Part 1 of the 1974 Act.   Legal aid is not available at all in respect of proceedings for defamation.           Defamation           Proceedings for damages for defamation may lie where words have been used about a person which tend to lower him in the estimation of right thinking members of society generally.   A person aggrieved by allegedly defamatory statements may seek damages or an injunction to prevent publication or repetition of the defamatory statement.   Damages may be awarded on a basis that the plaintiff should be compensated for the injury to his reputation caused by the publication of the defamation about which complaint has been made.           There are a number of possible defences to defamation proceedings:   (i)      Justification - if a defendant can prove that the allegations         which he made against the plaintiff were true, then no action         will succeed against him.   The defendant need not prove the         literal truth of the words but will succeed provided he         establishes the substance or sting of the words complained of.         Justification is a complete defence to any defamation action;   (ii)     Privilege - a defendant may also argue that the allegedly         defamatory statement was privileged.   An example of absolute         privilege is a statement made in the course of judicial or         quasi-judicial proceedings.   In such circumstances the         person enjoying the privilege cannot be compelled to produce         the document or to repeat the statement (as the case may be)         in evidence.   Furthermore, a statement made in pursuance of         a legal, social or moral duty to a person who has a         corresponding duty or interest to receive such a statement         enjoys qualified privilege.   Such qualified privilege can only         be overcome by the person bringing the defamation proceedings         if it can be shown that the statement was made maliciously.           Defamation proceedings are civil proceedings which may only be brought, except in some exceptional cases, in the High Court.   2.       Admissibility           (a) Res judicata           The respondent Government submit that the application is inadmissible as incompatible with the provisions of the Convention, and in particular Article 6, or is manifestly ill-founded under Article 6 para. 1 of the Convention.           They contend that the applicant has already had his claim brought before a court i.e. the right enunciated by the Court in the Golder case (Eur.   Court H.R., Golder judgment of 21 February 1975 Series A, no. 18) has been satisfied.   The Tribunal decided the question, inter alia, of whether the applicant's dismissal by the local authority was unfair.   An appeal lies on a point of law from the Tribunal to the Employment Appeal Tribunal.   The local authority was the respondent in the proceedings before the Tribunal as it would be a defendant in any defamation proceedings.   The Tribunal heard evidence on the issues which the applicant now claims to be defamatory and preferred the evidence given on behalf of the respondent authority to that given by and on behalf of the applicant.   The detailed findings of fact made by the Tribunal indicate that the matters which the applicant now wishes to raise in defamation proceedings were considered fully by the Tribunal which found against the applicant on all counts.           The respondent Government explain the principle of English law that it is an abuse of the process of the court to initiate proceedings in a Court of Justice for the purpose of mounting a collateral attack on a final decision against the intending plaintiff, which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff could contest the decision in the court by which it was made.   (Hunter v.   Chief Constable of West Midlands and another (1981) HL 3 A ER 727.)   This principle is not confined to the issues which the court is actually asked to decide, but also covers issues or facts which are so clearly part of the subject matter of the litigation and could so clearly have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them.   The rationale of this principle is to ensure that there is a final end to litigation and to prevent hardship on the individual by being vexed twice for the same cause.           The respondent Government contend that since the Belgian Linguistic case (Eur.   Court H.R., Belgian Linguistic judgment of 9 February 1967, Series A no. 5) it is accepted that the Convention does not guarantee a right of appeal against an initial determination where there is no evidence or suggestion that those initial proceedings were biased or were in any way themselves contrary to the requirements of Article 6.   Article 6, by analogy, does not guarantee successive rights of access to different tribunals for the purpose of gaining further adjudications of the same facts or issues, and to allow the applicant further access to a court in the circumstances of his case would be an abuse of the process of the English courts and would, in effect, guarantee a right under the Convention which does not, in fact, exist.           (b) Legal aid in defamation proceedings           The respondent Government submit that the application is incompatible with the provisions of the Convention and in particular Article 6 para. 1 or is inadmissible as being manifestly ill-founded.           Following the decision of the Court in the Airey case (Eur.   Court H.R., Airey judgment of 9 October 1979 Series A no. 32) and the Commission's decision on admissibility in X v. the United Kingdom (No. 8158/78, Dec. 10.7.80, D.R. 21 p. 95) the respondent Government contend that Article 6 para. 1 of the Convention leaves to the State a free choice of the means to be used to provide an effective right of access to the courts.   The Convention does not place an obligation on the State to provide legal aid for every dispute relating to a "civil right".   Furthermore, in operating any legal aid system, a balance must be struck between the private interest of the individual litigant and the public interest that public money should not be used to finance suits or appeals which are improperly brought, or which stand no reasonable prospect of success.   Under Sections 7 (5) and (5A) of the Legal Aid Act 1974 an applicant may be refused legal aid if, in the particular circumstances of the case, it seems unreasonable that he should receive it.   The aim of this provision, to ensure that the limited funds available for legal aid are not squandered on undeserving applicants, was recognised in Application No. 8158/78 (supra) as legitimate both because it would be unreasonable for a legally aided party to exploit that financial advantage against an unaided opponent and because the result is to discourage further litigation which would overburden the courts.           (i)      The general law           The respondent Government submit that, in view of the principles enumerated above, it is inappropriate and unreasonable to provide legal aid in the case of defamation proceedings.   Such proceedings were excluded from the scope of the Legal Aid Act 1949 (the predecessor of the 1974 Act) on the basis that experience had shown that they were among a class of actions in which there was most room for bringing vexatious, frivolous, unmeritorious or unnecessary claims.   Whilst it was accepted that not all actions for defamation fitted such a description it was thought to be an inherently risky form of action readily open to such abuse.           In 1968 the Lord Chancellor's Advisory Committee reported on the question of whether legal aid should be extended to defamation proceedings.   It concluded that this step was not desirable since they considered "the risk of unmeritorious applications to be a very real one".   Although the experienced Law Society Committees could be trusted not to grant legal aid in such cases the Advisory Committee was "mindful of the need to keep down administrative costs". Furthermore, the prospect of recovering damages in a defamation action was slender save in the rare case of a meritorious action against a rich defendant.           The respondent Government submit that defamation proceedings as a class are intrinsically precarious and uncertain and are more likely to prove fruitless, trivial or ill-founded than other types of proceedings.   Although there are mechanisms built into the legal aid scheme to exclude unmeritorious proceedings, the outcome of defamation proceedings is uniquely difficult to foresee and even if those mechanisms were strengthened in defamation cases they would probably not be effective in preventing the waste of money on ill-advised proceedings.   The Convention, under Article 6 para. 1, cannot be said to require the State to fund proceedings at the public expense which are unmeritorious.           (ii)     The applicant's case           The respondent Government contend that the application is in any event inadmissible as being manifestly ill-founded under Article 27 of the Convention since the applicant does not show that he has been a victim of a breach of the Convention.           Had legal aid been available for defamation proceedings the test set out in Section 7 of the 1974 Act would have been applied.   In all the circumstances the applicant would not have been able to satisfy the statutory tests by persuading a General Legal Aid Committee that he had reasonable grounds for bringing the proceedings.           The Committee would take into account all the facts of the case:- the proceedings before the Tribunal; the Tribunal's findings of fact, and in particular the fact that they preferred the evidence given on behalf of the respondent rather than that given on behalf of the applicant, and the consequent likelihood that a later tribunal would form the same view; the length of time that had passed since the defamatory statements complained of and the difficulty of bringing witnesses up to proof after such a delay; and finally the inherently precarious and risky nature of defamation proceedings.           In this final respect the Government emphasise that when counsel advised the applicant in writing that it was impossible to say that the chances of proving malice were better than fifty per cent he did not consider at any length the possibility that a defence of justification might be raised.   Also, his advice was given before the Tribunal proceedings relating to the unfair dismissal claim had been concluded.           (c) The respondent Government's comments on admissibility             in the light of the Commission's decision in Application             No. 10871/84 (Dec. 10.7.86 unpublished)           The respondent Government submit that in Application No. 10871/84, the Commission was concerned with precisely the same issue under Article 6 para. 1 of the Convention as arises in the present case.   The respondent Government in particular draws attention to the following paragraph of the Commission's decision in that case (paragraph 4):           "The next question to be determined is whether the         unavailability of legal aid for defamation effectively denied         the applicant access to court, as ensured by Article 6 of the         Convention.   In this respect the Commission recalls that,         unlike Article 6 para. 3 (c) which expressly provides for         legal aid in criminal cases where necessary, the Convention         does not guarantee such a right of assistance in civil cases.         The means by which a State ensures effective access to civil         courts is thus within its margin of appreciation (Eur.   Court         H.R., Airey judgment of 9 October 1979, p. 15 para. 26).           The Commission notes that even where legal aid may be         available for certain types of civil action, it is reasonable         to impose conditions on its availability involving, inter         alia, the financial situation of the litigant or the         prospects of success of the proceedings (cf.   No. 8158/78,         Dec. 10.7.80, D.R. 21 p. 95).   The Commission considers,         similarly, that, given the limited financial resources of         most civil legal aid schemes, it is not unreasonable to         exclude certain categories of legal proceedings from this         form of assistance.   The fact that the English legal aid         scheme excludes assistance in defamation proceedings has         not been shown to be arbitrary in the present case."             The respondent Government submit that the fact that the English legal aid system excludes assistance in defamation proceedings has similarly not been shown to be arbitrary in the present case, and that the exclusion of legal aid for defamation is fully justified and within the margin of appreciation left to States in this field.           The respondent Government submit that the present applicant is not a person who can claim that he has been denied access to a court.           The applicant's allegations had already been considered twice by a court in the proceedings in which he contended he had been unfairly dismissed, and his evidence had been rejected.   On each occasion the Tribunal, in deciding whether the applicant's dismissal was fair, considered evidence on precisely the same matters as the applicant now seeks to make the basis of his allegations of defamation.   On each occasion the Tribunal preferred the evidence given on behalf of the local authority, his previous employer, (including that of the person against whom defamation is claimed) to that given by and on behalf of the applicant.           The respondent Government note that, although the applicant sought counsel's opinion in 1978 on whether the allegations were defamatory, this was scarcely encouraging.   In writing, counsel's opinion states that he could not say "that the chances of proving malice ... are better than 50%.   The respondent Government point out that it was not until 25 July 1983, six years after the alleged defamation and five years after the last decision by the Industrial Tribunal, that the applicant commenced proceedings for defamation.           The respondent Government submit that the applicant would not have received legal aid even if legal aid had been available for defamation proceedings.           In considering Article 6 para. 1 of the Convention in conjunction with Article 14 of the Convention the respondent Government submit that the claim that the applicant has been discriminated against on the ground of poverty in respect of his rights under Article 6 para. 1 is, in the circumstances of the present case, no more than a re-statement of the issue arising under Article 6 para. 1 taken alone.   In the Government's submission, it would be appropriate for the Commission to find that, having decided the issue on the basis of Article 6 para. 1 alone, no separate issue arises under Article 14 and that the applicant's complaint, if any, of a separate breach of Article 14 is manifestly ill-founded.     Submissions of the applicant             Admissibility           (a) Res judicata           The applicant accepts the principle that subsequent proceedings must not seek to mount a collateral attack on previous proceedings which have already determined the question.   However, in his judgment in Hunter v.   Chief Constable of West Midlands Lord Diplock formulated the principle as being "that the identical question sought to be raised has been already decided by a competent court".   The applicant contends, relying upon various dicta of Lord Diplock, that this necessarily raises the question of whether in both sets of proceedings (i) the standard of proof was the same, and (ii) the facts to be decided upon were the same.   If either of these conditions is not satisfied, the restrictions on pursuing subsequent proceedings cannot apply.           On the question of standard of proof the applicant submits that it is generally recognised that the rules of evidence of industrial tribunals are not the same as those which bind the formal courts.   This is a result of deliberate government policy designed to render the industrial tribunals accessible to the layman by reducing the technicalities involved.   Hence written statements, which would not be admissible in a court of law, may be admitted in evidence at the discretion of an industrial tribunal which may also accept hearsay evidence which would be excluded from court proceedings.   The applicant submits that the result of such differences of approach is that the facts of his case would not have been investigated by the Tribunal in the rigorous and thorough way in which they would be considered by the High Court in defamation proceedings.           On the subject of the particular facts to be decided by the different tribunals the applicant contrasts the questions which the Tribunal considered and those which the court would have to consider. The Tribunal had to decide whether the applicant had been unfairly dismissed, that is to say whether, at the time of the dismissal, the employer acted reasonably (Schedule 1 para 6 (8) of the Trade Union and Labour Relations Act 1974).   In contrast, in considering the applicant's claim that he had been defamed, the defendant would have to persuade the court that one of the defences to such a claim applied - that is either that the statements complained of were true (justification) or that the statements were protected by a privilege, and that if such privilege were qualified there was no malice on the part of the person making the statement.           The applicant points out that in its decision the Tribunal restricted itself to considering the matter according to the statutory test set down to decide the question of unfair dismissal, and it did not make any specific comment on whether or not it considered the statements which found the allegation of defamation to be true.   The applicant argues that, even if the tribunal had arrived at a conclusion regarding the truth of the statements, the facts would have been considered according to different rules of evidence and generally in a different manner, and thus such a finding would not have been conclusive under the rule in Hunter (supra).           As regards malice, the applicant argues that this need not have been considered by the Tribunal in considering whether the local authority, through their employee, had acted reasonably.   The Chief Executive could, for example, have been personally malicious but nevertheless have acted reasonably in the employer's interest in dismissing the applicant.   In any event, the Tribunal expressed no view on the question of malice.           The applicant points out, as a further example of the way in which the procedure before the Tribunal differs from the proposed defamation proceedings, that the respondent in the proceedings before the Tribunal was the local authority while the primary defendant in any defamation proceedings would be the Chief Executive personally.           Having indicated the difference between the proceedings before the Industrial Tribunals and the proposed defamation proceedings, which differences he submits are sufficient to take the matter outside the rule in Hunter, the applicant moreover contends that the fact that the English courts would or might find against him in the defamation proceedings, which he denies to be the case, is in any event irrelevant since the Convention is concerned, inter alia, to limit any restriction of liberty which national courts may seek to impose upon the individual.   The Commission and the Court are thus not prevented from considering a matter merely because the national court would not consider it, and to the extent that the submissions of the respondent Government rely upon such a formulation they should be disregarded.           The applicant further contends that since legal aid was not available before the Tribunal the present application is relevant under the Convention in relation to the question of the availability of legal aid irrespective of any claim of res judicata.           (b) Legal aid in defamation proceedings           The applicant accepts the right of Governments to devise a system to prevent frivolous or vexatious cases being litigated at the public expense.   However, he does not accept the respondent Government's argument that such a right must result in the exclusion of defamation proceedings f