CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 28 février 1996

.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. 25353/94                       by Michael C. G. McMULLEN                       against Ireland        The European Commission of Human Rights (First Chamber) sitting in private on 28 February 1996, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 6 April 1994 by Michael C. G. McMULLEN against Ireland and registered on 29 September 1994 under file No. 25353/94;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The facts as submitted by the parties may be summarised as follows. The applicant is a British citizen living in Ireland and he was born in 1942.        In 1983 the applicant claims that he discovered that three Irish firms of solicitors ("Defendants 1, 2 and 3") had been negligent in respect of advices given to him on provisions in a lease pursuant to which lease the applicant occupied a large castle in Ireland. Since at least 1977 relations between the landlord and the applicant had been bad and questions, relating to the right of the applicant to alienate or change the use of the castle without the landlord's consent, arose.        By summons dated 19 March 1986 the applicant issued negligence proceedings in the High Court against Defendants 1, 2 and 3. From then until its hearing of the case, the High Court considered a number of interim applications made by all parties including a number of applications for judgment made on behalf of the applicant. Most of these applications were dealt with by the court on consent namely, on the basis of prior agreement having being reached between the parties.        The case was set down for hearing on 21 March 1991 and in July 1991 the High Court heard the applicant's case over a period of nine days. The case against Defendant 1 was dismissed as it was found that the applicant had failed to establish any negligence against that firm and because, in any event, the case against that Defendant was instituted out of time. The High Court reserved judgment as regards Defendants 2 and 3.        A detailed written judgment (41 pages) was delivered on 18 February 1992 finding Defendants 2 and 3 negligent. The applicant was awarded £2,210 damages (representing certain planning fees) against Defendants 2 and 3 jointly, that being the only item of damage claimed which the court found was attributable to the negligence established. Costs to date were awarded against Defendants 2 and 3 in the applicant's favour and against the applicant in favour of Defendant 1.        On 1 May 1992 the High Court refused the applicant's application for, inter alia, an order indicating that the costs to be recovered by the applicant should be at the High Court scale. This meant that the costs recoverable would follow the District Court scale in view of the level of damages awarded by the High Court, the District Court being the appropriate jurisdiction for an award of damages of that level.        On 25 May 1992 the applicant appealed to the Supreme Court on the grounds that the damages awarded were inadequate. On 28 May 1992 Defendant 2 also appealed contesting the finding of negligence and, in the alternative, claiming that even if negligence was established the applicant had not demonstrated any causal link between any such negligence and the damages claimed. Defendant 3 did not appeal separately but rather contested the applicant's appeal.        On 6 November 1992 the transcript of the High Court hearing was delivered to the Supreme Court Office, the applicant's books of appeal were lodged on 22 December 1992, on 18 January 1993 the transcript of the High Court hearing was sent to the High Court judge for approval which judge returned the transcript approved on 25 January 1993 and on the 27 January 1993 the case was set down for trial at which stage it went into the Supreme Court list of cases awaiting a hearing date.        The case was heard by the Supreme Court on 26 January 1994.    The Supreme Court, by judgment dated 9 February 1994, confirmed the finding as to the negligence of Defendants 2 and 3 but found that the negligence of Defendant 2 was not a causative feature of any damage the applicant suffered. The Supreme Court therefore dismissed the applicant's appeal and confirmed the award of damages against Defendant 3 only.        The Supreme Court on 12 July 1994, after hearing submissions from the parties representatives on appeal costs, ordered that the applicant pay the costs of Defendant 3 in respect of the applicant's Supreme Court appeal and no costs order was made in relation to Defendant 2 (in which case both the applicant and Defendant 2 each were each liable for their own appeal costs). It is submitted by the applicant that the Supreme Court stated on this date that the length of time taken for the High Court to deliver its judgment was of "no importance".        On 16 December 1994 the Supreme Court made no order following the applicant's motion seeking a stay of execution on all costs orders awarded him. The applicant attended this hearing and made submissions but was not legally represented.   COMPLAINTS        The applicant mainly complains that he has been denied a fair hearing. In particular, he complains about the decisions of the courts about the merits of the case, damages and costs. He also takes issue with the courts' handling of certain evidentiary matters. The applicant submits that, as a result, he has been financially punished for bringing the negligence action despite the fact that there was a finding of negligence.        The applicant further complains of bias on the part of the courts which he claims were, inter alia, protecting its own officers (the Defendants), which bias was compounded by the absence of a jury to hear his case. The applicant also complains about the length of time it took for the High Court to deliver its judgment. The applicant invokes Articles 6 para. 1 and 14 of the Convention together with Article 1 of Protocol 1 and Article 2 of Protocol 4.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 6 April 1994 and registered on 29 September 1994.        By letter dated 20 April 1995 the member of the Commission acting as Rapporteur requested the Government to supply, pursuant to rule 47 para. 2(a) of the Commission's Rules of Procedure, factual information in relation to the progress of the proceedings and in relation to the various costs orders made.        By letter dated 26 May the Government submitted the information requested and the applicant's comments were received on 3 July 1995.   THE LAW   1.    Article 6 (Art. 6) of the Convention        The applicant mainly complains that the proceedings were unfair and he invokes Article 6 para. 1 (Art. 6-1) of the Convention which, insofar as relevant, reads as follows:        "1.    In the determination of his civil rights and obligations      ..., everyone is entitled to a fair and public hearing within a      reasonable time by an independent and impartial tribunal      established by law..."        The Commission considers that, insofar as the proceedings involved the determination of the liability of the applicant's former solicitors for negligent advice, those proceedings involved the determination of the applicant's civil rights (No. 10475/83, Dec. 9.10.84., D.R. 39, p. 251).   (a)   As to the allegation of bias, the applicant submits that the relevant judges were biased in favour of the Defendants because of the applicant's nationality (British) and due to the Defendants' identity (solicitors) and that that bias was compounded by the absence of a jury. However, the Commission does not find that the absence of a jury rendered the courts less than impartial in any way and considers that the applicant has not demonstrated that the judges involved in his case were biased against him or in favour of the Defendants. The Commission therefore considers this complaint unsubstantiated and, as such, manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   (b)   Insofar as the applicant complains about the absence per se of a jury, the Commission notes that there is no right guaranteed by the Convention to a jury trial (see, for example, No. 8299/78, Dec. 10.10.80, D.R. 22, p. 51) and accordingly finds the complaint incompatible ratione materiae with the provisions of the Convention.   (c)   The applicant also complains about the courts' decisions on the merits and on damages (including challenging the courts' assessment and admission of evidence in these respects). However, the Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention.   The Commission refers, on this point, to its constant case-law (see eg. No. 458/59, X. v. Belgium, Dec. 29.3.60, Yearbook 3, pp. 222, 236; No. 5258/71, X. v. Sweden, Dec. 8.2.73, Collection 43, pp.71, 77; No. 7987/77, X. v. Austria, Dec. 13.12.79, D.R. 18, pp. 31, 45).        In addition, as regards the assessment of the evidence, it is not for the Commission to re-assess the factual or legal elements of the case before the domestic courts, given that the decisions taken had a basis in law and were based on relevant and sufficient reasons (see eg. Eur. Court H.R., Schenk judgment of 12 July 1988, Series A no. 140, Barbera, Messegué and Jabardo judgment of 6 December 1988, Series A no. 146 and De Moor judgment of 23 June 1994, Series A no. 292-A).        In these respects, the Commission notes that the applicant's hearing before the High Court lasted nine days, that he also had a Supreme Court hearing, that he was legally represented before those courts and that the judgments were full and reasoned. In addition it is recalled that the High Court found negligence on the part of Defendants 2 and 3 and considered that no causal link had been established between the heads of damage alleged by the applicant and the established negligence, with the exception of a small sum in relation to planning fees which was awarded to the applicant. Similarly, the Supreme Court found that the applicant had not established that causal link between the heads of damage alleged and the negligence established on the part of Defendant 2.        In such circumstances, the Commission finds these complaints of the applicant manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   (d)   As regards the applicant's complaints about the costs awards, the Commission considers that it is not necessary to determine whether the relevant proceedings constituted a determination of the applicant's civil rights and obligations since the complaint is, in any event, inadmissible for the reasons set out below.        The Commission notes that the applicant's case against Defendant 1 was rejected as, inter alia, having been instituted out of time and that the applicant was obliged to pay that Defendant's costs. Once the negligence of Defendants 2 and 3 was established in the High Court, the applicant was awarded his costs to date but (because of the level of damages recovered) he received those costs on the District Court scale. In addition, the applicant's appeal was unsuccessful in the Supreme Court and he was obliged to pay Defendant 3's appeal costs. No order as to costs was made by the Supreme Court as regards Defendant 2, the latter being partially successful and unsuccessful in his appeal.        The Commission recalls that it is not an unreasonable requirement of civil litigation that the unsuccessful party pay the adversary's legal costs (No. 15007/89, Dec. 1.10.90, unpublished). In addition and since the motivation behind the award of costs on the District Court scale would appear to be to ensure that proceedings are instituted before the appropriate court, the Commission considers that, insofar as this constitutes a restriction on access to court, it has a legitimate aim (efficient functioning of the judicial system) and demonstrates a reasonable relationship between the means employed (award of costs according to the court's decision as to the correct jurisdiction for the proceedings) and the aim sought to be achieved (See, for example, Eur. Court H.R. Fayed judgment of 21 September 1994, Series A no. 294, pp. 49-50, para. 65).        In such circumstances and in view of the margin of appreciation available to the Contracting States in this respect, the Commission considers that, even assuming that Article 6 para. 1 (Art. 6-1) of the Convention is applicable to this complaint, the costs awards of which the applicant complains do not disclose a violation of Article 6 para. 1 (Art. 6-1) of the Convention. Accordingly, the Commission finds this complaint manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   (e)   In the context of his complaint about the overall fairness of the proceedings, the applicant complains about delay on the part of the High Court in delivering its judgment. The Commission notes in this respect that the proceedings issued on 19 March 1986 and the first hearing on the merits of the case took place in the High Court in July 1991, the High Court judgment was delivered in February 1992 and the Supreme Court delivered its judgment on the merits on 9 February 1994. Approximately five months later the Supreme Court gave its decision on the appeal costs matter.        The Commission recalls that, according to the constant case-law of the Convention organs, the reasonableness of the delay in civil proceedings must be considered with regard to the circumstances of the particular case and with the help of the following criteria: the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case and what was at stake in the litigation for the applicant (see eg. Eur. Court H.R., H. v. United Kingdom judgment of 8 July 1987, Series A no. 120, p. 59, para. 71).        The Commission considers that the length of proceedings issue, to which the application gives rise, involves complicated issues of fact and law and that it cannot, on the basis of the file, determine its admissibility at this stage. It is therefore necessary, in accordance with rule 48 para. 2(b) of the Commission's Rules of Procedure, to request the observations of the respondent Government.   2.    Other complaints   (a)   The applicant also complains under Article 14 (Art. 14) of the Convention alleging that he was treated differently by the Irish courts because of his nationality (British) and in light of the identity of the Defendants (solicitors). While the Commission would consider this complaint in conjunction with Article 6 para. 1 (Art. 6-1) of the Convention, the Commission, having examined the submissions of the applicant, finds no evidence of any such difference in treatment and, accordingly, considers this complaint of the applicant manifestly ill- founded pursuant to Article 27 para. 2 (Art. 27-2) of the Convention.   (b)   The applicant has also invoked Article 1 of Protocol 1 (P1-1) and the Commission notes that, in this context, he challenges the courts' handling of his professional negligence action.        Therefore, insofar as he complains about the impact (on the value of his holding in the property) of the actions of his lawyers, his complaint is incompatible ratione personae with the Convention provisions and insofar as he complains about the decisions of the courts in this respect, the Commission considers that any such complaints are more appropriately addressed, and have been so addressed above, under Article 6 para. 1 (Art. 6-1) of the Convention.   (c)   The applicant also invokes Article 2 of Protocol 4 (P4-2). However, the Commission considers that the applicant has not demonstrated that his right to liberty of movement, to choose his residence or his right to leave a country have been interfered with. Therefore this complaint is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECIDES TO ADJOURN the examination of the applicant's complaint      concerning the length of the negligence proceedings; and        DECLARES INADMISSIBLE the remainder of the application.       Secretary to the First Chamber      President to the First Chamber              (M.F. BUQUICCHIO)                   (C.L. ROZAKIS)