CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 décembre 1989

.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. 14551/89                       by J.R. and W.A.                       against the United Kingdom             The European Commission of Human Rights sitting in private on 4 December 1989, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER              Sir   Basil HALL              Mr.   F. MARTINEZ              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                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 10 January 1989 by J.R. and W.A. against the United Kingdom and registered   on 16 January 1989 under file No. 14551/89;           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 first applicant is a citizen of the United Kingdom who was born in India in 1927 and is normally resident in Fribourg, Switzerland.   The second applicant is also a citizen of the United Kingdom, born in 1958 and normally resident in London.           Before the Commission the applicants are represented by Messrs James and Sarch, solicitors, London.           This is the applicants' second application to the Commission. The first application, No. 14074/88, concerned proceedings as a result of which the applicants were found guilty of civil contempt and committed to prison in absentia for periods of two years and six months respectively from the date of their apprehension.           The facts of the present case, as submitted on behalf of the applicants, may be summarised as follows:           On 9 March 1988 the applicants were found guilty of civil contempt and committed to prison for two years and six months respectively.   An appeal to the Court of Appeal against the decision of 9 March 1988 was made on 22 April 1988.   On 15 September 1988 an application was made by the solicitors for the plaintiff in the contempt proceedings that the applicants should make payment into court of £ 18,320.50 as security for costs of the appeal, in default of which the appeal should be stayed.   On 28 November 1988 the Registrar of the Court of Appeal ordered the applicants to make payment into court of £ 14,600 on or before 21 December 1988 in default of which the appeals were to stand dismissed.   The Registrar found, inter alia, as follows:   "[The plaintiff's] case was that [the applicants] had procured breaches of ... undertakings, as a result of which assets of a very substantial value belonging to [a company] were spirited away abroad out of the reach of the liquidator of [the plaintiff] ...   Security for costs is sought on the grounds that [the applicants] are resident abroad and do not have assets in this country available to meet [the plaintiff's] costs of the appeal if the appeal is unsuccessful ...   Here the award of security is resisted on the grounds that the appeal involves the liberty of the subject ...     ... although the Court as a general rule will not award security for costs where the liberty of the appellant is at stake on the appeal, it is possible for the Court to award security in an appropriate case.   In my judgment the test should be: would it, in all the circumstances, be a denial of justice to the appellants to require them to furnish security for costs?   The following factors have led me to the conclusion that in this case it would not be a denial of justice to [the applicants] to require them to furnish security for the costs of their appeals.           (1) They have both been found guilty of procuring         deliberate and dishonest breaches of the undertakings         given to the Court in this action.           (2) There is not, and indeed could not, be any         suggestion that [the applicants] have not had a fair         trial.   It is clear that the learned Vice-Chancellor         gave them every indulgence. ...   It is not without         significance that neither of the applicants chose to         give any evidence or to come anywhere near giving a         satisfactory answer to the charges of contempt brought         against them. ...   Their appeals are based on technical         points not the broad merits.           Furthermore, in my view their grounds of appeal,         although not hopeless, are weak...           (3) The case for awarding security for costs here is         particularly strong.   The settled practice of the         Court of Appeal in awarding security where the         appellant is resident outside the United Kingdom is         not the product of any discrimination against foreign         nationals or against those who reside abroad.   The         rationale of this Court's settled practice of awarding         security for costs in such cases is that the         difficulty (or, in some cases, impossibility) of a         successful respondent being able to enforce any order         for costs made in his favour by the Court of Appeal         against a non-resident appellant who has no assets in         this country.           I am satisfied on the evidence before me - in         particular the uncertainty about where [the         applicants] are living and generally their past         behaviour - that the chances of being able to enforce         any costs order against them are remote, if not         non-existent.           (4) The award of security will not prevent the         appellants pursuing their appeals.   ...   Here the         evidence before me does not establish that the         applicants would be unable to pay security of the         amount which I propose to order.   On the contrary, the         indications are the other way.   They have been able to         afford to have solicitors and counsel acting for them         throughout these proceedings which have already         involved a number of hearings at first instance, two         appeals to the Court of Appeal, and one application to         the House of Lords...           If an appellant wishes to contend that he is unable         to pay security for costs and therefore any award of         security will stifle his appeal he must adduce         credible evidence to that effect in the proper form...           I am not satisfied that these appellants would be         unable to pay.            ... it would, in my judgment, be a denial of justice to         [the plaintiff] to allow these two dishonest individuals to         bring a third appeal to the Court of Appeal safe in the         knowledge that if the appeals are unsuccessful they will be         able to evade liability for [the plaintiff's] costs".           As to quantum, the Registrar found that the settled practice of the Court of Appeal was to award an amount of security equal to the best estimate the court could make of the full costs of the appeal taxed on the standard basis.   He considered the time estimated, two days, "certainly not an over-estimate", but reduced the time for solicitor's preparation from 55 hours partner's time   to 30 hours.   He considered that the proposed fee for counsel of £ 5000 with a refresher of £ 750 was reasonable, and would normally be allowed on standard basis taxation.           The applicants' appeal against the security for costs order was heard on 19 December 1989.   The appeal was dismissed and the Registrar's order of 28 November was affirmed.           No payment was made into court before 21 December 1988 and the applicants' appeals stood dismissed.   COMPLAINTS           The applicants submit that the requirement that they make payment of £ 14,600 as security for costs in their appeal from the decision of 9 March 1988 constitutes a breach of Article 6 of the Convention.   They contend that the contempt proceedings constitute criminal charges, that Article 6 applies to the Court of Appeal and that, in view of the potentially extensive risk of loss of liberty for the applicants, they should not have had to make payment as a condition of the appeal.   THE LAW           The applicants allege a violation of Article 6 (Art. 6) of the Convention by virtue of the requirement that they pay £ 14,600 as security for costs before they were permitted to proceed with their appeal against an order committing them to prison for civil contempt.           The first sentence of Article 6 para. 1 (Art. 6-1) states:   "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."           The Commission notes that the Convention does not guarantee a right to appeal either in civil or in criminal cases, and that Article 2 of Protocol No. 7 (P7-2), which has not been ratified by the United Kingdom, provides for an appeal only in criminal cases.   Where an appeal is provided, however, the fundamental guarantees of Article 6 (Art. 6) must be respected, although the way in which the provision applies must depend on the special features of such proceedings (cf. in the context of a criminal appeal, Eur. Court H.R., Delcourt judgment of 17 January 1970, Series A no. 11, paras. 25 and 26).           The Commission is not required to decide in the present case whether this provision applies to appeals in proceedings in which the defendants are committed to prison for civil contempt, nor whether a requirement to pay security for the costs of an appeal is generally compatible with Article 6 (Art. 6) of the Convention as, even if both questions were to be decided in the affirmative, the application is, in any event, inadmissible for the following reasons:            The applicants must be understood to be complaining of a denial of access to court by virtue of the requirement that they pay into court security for costs of £ 14,600.   The Commission refers here to the judgment of the Registrar of the Court of Appeal, in which the Registrar set out at length his reasons for granting the application for security.   In particular, the Commission notes that considerable assets had left the country by the time of the order for security, that the evidence did not establish that the applicants were unable to pay the security, that the indications were that they were able to pay it, and that the function of the security was to prevent the other party to the proceedings from being at a financial disadvantage if required to defend any appeal with little or no prospect of recovering the costs that would be awarded if his defence was successful. Further, the Registrar's assessment of the quantum of the   security to be awarded makes clear that the amount of security was   based on the actual costs likely to be incurred.    It is true that the applicants' liberty was at issue in the contempt proceedings (unlike in No. 7973/77, Dec. 28.2.79, D.R. 17, p. 74), but the overall circumstances justified the order.   The applicants' access to court was not denied.           It follows that the application 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)