CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 décembre 1988

.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 OF     Application No. 12812/87 by Kathleen and William McKINNON against the United Kingdom             The European Commission of Human Rights sitting in private on 13 December 1988, the following members being present:                   MM.   C.A. NØRGAARD, President                      J.A. FROWEIN                      S. TRECHSEL                      G. SPERDUTI                      E. BUSUTTIL                      G. JÖRUNDSSON                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                      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 17 January 1987 by Kathleen and William McKINNON against the United Kingdom and registered on 20 March 1987 under file No. 12812/87;           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 applicants, mother and son, are British citizens, born in 1921 and 1958 respectively and resident in Leeds.   The facts as submitted by the applicants may be summarised as follows.           In 1972 and 1976, the applicants allege that parts of the garden of their family home were occupied without permission by neighbours, who cut down trees growing on the land.   The applicants commenced proceedings against their neighbours on 19 July 1983 for recovery of their land and damages for trespass.   On 7 September 1984, the defendants to the action were granted legal aid.   The defendants in or about 1985 moved to a new home 400 km away.           On 3 July 1985, the applicants applied for legal aid.   Though they were financially eligible, the General Committee refused legal aid since it "did not consider the subject-matter of the dispute justified the potential cost of the proceedings".   The applicants appealed to the Area Committee, pointing out the defendants were receiving legal aid.   Their appeal was dismissed on 13 January 1986 in the following terms:           "The Area Committee carefully considered the contents of         your application, including your photograph and plans         lodged.   The Committee noted the nature and extent of         the proceedings you have commenced.   The Area Committee         doubted whether you would be able to successfully pursue         the proceedings but, in any event, considered the         subject-matter of the dispute did not justify the further         pursuance of the proceedings."           The applicants applied for judicial review, challenging the decision to refuse them legal aid and also the decision to grant legal aid to the defendants.   Leave to apply for judicial review was refused on 18 June 1986.   The applicants renewed their application and following a hearing before the Divisional Court, their application was dismissed on 18 July 1986, the Court holding as follows:           "This application is to challenge not only the decision to         refuse legal aid to these applicants but also the decision         to grant legal aid to the defendants.   The points which are         made are that the Legal Aid Committee have not properly         considered the documents.   It is said that on the merits         these applicants have a good case, but if they had taken         the law into their own hands and seized back the land in         dispute then the action would have been brought the other         way round and they as defendants might have got legal aid         and the applicants in those hypothetical proceedings might         not.   All of that is as may be.   This court has a         supervisory and reviewing jurisdiction and it is not         appropriate for it to go into the merits of the dispute.           What would have to be established on this application is         that there was an arguable case and that the Law Society's         Committee had in either of these regards, that is the grant         in the one case and the refusal in the other, acted in some         way which was outside their powers or was wholly unreasonable         and irrational or there was some procedural impropriety or         some matter had been taken into consideration which should         not have been or something which should have been taken into         account was not.   None of those matters, it seems to me, are         shown by these papers or by what has been addressed to the         court this morning by <the second applicant>, who has         presented his argument very courteously, but, it seems to         me, if I may say so, without any real substance.           There cannot be any basis upon which there could be challenge         to the grant of legal aid to the defendants.   I would         emphasise what was said by Mr.   Justice Mann, that there is a         world of difference between granting legal aid to a plaintiff         to pursue an action which the Legal Aid Committee does not         think either is a matter of substance or has much chance of         success on the one hand, and granting legal aid to defendants         who are challenged by an action of that kind so as to enable         them to defend their position."           Their appeal to the Court of Appeal was dismissed on 20 October 1986.     COMPLAINTS           The applicants complain that they have been deprived of their right to a fair hearing under Article 6 of the Convention.   They submit that as a result of the refusal of legal aid and of the provisions of the Legal Aid Act 1974, they will be unable to recover their costs.   Section 8(1)e of the Act limits the costs paid by an unsuccessful legally-aided party to an amount which is a reasonable one for him to pay having regard to all the circumstances, including the means of all the parties and their conduct in connection with the dispute.   Section 13(3)a of the Act prevents successful plaintiffs who are not legally-aided from recovering their costs from the legal aid fund.   They submit that this acts as a strong disincentive to continue and puts them to under pressure to settle.   They are forced to continue with the action however since otherwise they would have to pay the defendants costs as well as their own.           They also complain that they are at a disadvantage to the defendants who will be legally represented.   They further complain of the decisions of the Law Society refusing them legal aid.   The applicants also complain under Article 13 of the Convention that they are denied an effective remedy for the violation of their rights under Article 1 of Protocol No. 1 to the Convention to peaceful enjoyment of their possessions.     THE LAW   1.       The applicants complain that they have been deprived of their right to a fair hearing and refused free legal aid to pursue civil proceedings.           The Commission first recalls that Article 6 para. 3 (c) (Art. 6-3-c) of the Convention secures a right to be granted free legal aid, under certain conditions, only to those charged with a criminal offence.   In civil proceedings, however, as in the present case, no right to free legal aid is as such included among the rights and freedoms guaranteed by the Convention (see e.g.   No. 265/57, Dec. 20.7.57, Yearbook 1 pp. 192, 194; Nos. 7823/77-7824/77, Dec. 6.7.77, D.R. 11 pp. 221, 232).           However, the refusal of free legal aid may, in certain circumstances, amount to a denial of the right of access to court secured by Article 6 para. 1 (Art. 6-1) of the Convention to everyone whose civil rights and obligations are to be determined (see Eur. Court H.R., Golder judgment of 21 February 1975, Series A no. 18, para. 36; Airey judgment of 9 October 1979, Series A no. 32, para. 26).           The Commission also recalls its constant case-law which establishes that when an applicant is refused legal aid on the basis that his claim lacks reasonable prospects of success, this would not constitute a denial of access to court unless it could be shown that the decision to refuse legal aid was arbitrary (see e.g.   Application No. 8158/78, Dec. 10.7.80, D.R. 21 p. 95).           The Commission recalls in the present case that the applicants were refused legal aid by the General Committee on the ground that the subject-matter of the dispute did not justify the potential cost of the proceeding and that this decision was upheld by the Area Committee which further doubted whether the applicants would be able successfully to pursue the proceedings.   The Commission further recalls that in the judicial review proceedings, the High Court and Court of Appeal found nothing improper or unreasonable in these decisions.   The Commission also notes that there is no evidence to indicate that the applicants are not able to pursue the proceedings in the absence of legal aid.           The Commission notes that the applicants complain that the refusal of legal aid will also, as a result of the relevant legislation, have the effect that if they are successful they will have poor prospects of recovering their costs and that this acts as a disincentive and places them at a disadvantage vis-à-vis the defendants who are legally aided.   However, while Article 6 para. 1 (Art. 6-1) of the Convention guarantees to litigants effective access to court for the determination of their "civil rights and obligations", it cannot be interpreted as guaranteeing that a successful party be reimbursed his costs either from the other party or the State.   The Commission further notes that the applicants are in fact continuing with the proceedings.   In these circumstances the Commission finds that the applicants have failed to establish that the very essence of their right of access to court has been impaired or that the provision of legal aid to the defendants will deprive them of a fair hearing.           In light of the above circumstances, the Commission finds that the applicants' complaints fail to disclose a violation of Article 6 para. 1 (Art. 6-1) of the Convention.           It follows that this complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicants also complain that they have no effective remedy for the violation of their rights to peaceful enjoyment of their possessions.   They invoke Article 13 (Art. 13) in conjunction with Article 1 of Protocol No. 1 (P1-1).           The Commission recalls however that the applicants are pursuing civil proceedings for the recovery of their land and damages for trespass.   The Commission notes that the applicants have complained of a refusal of a legal aid and that they have poor prospects of recovering any award of costs.   However, the Commission has already found that the applicants have not thereby been deprived of effective access to court and that they are nonetheless able to pursue those proceedings.   Further while an award of costs may not be forthcoming from the legal aid fund, the applicants if successful could still be awarded damages and an order for the recovery of their land.           The Commission accordingly finds the applicants' complaints disclose no appearance of a violation of Article 13 (Art. 13) of the Convention in conjunction with Article 1 of Protocol No. 1 (P1-1).           It follows that this complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.            Secretary to the Commission         President of the Commission                   (H.C. KRÜGER)                      (C.A. NØRGAARD)