CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 avril 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. 26374/95                       by Harry JOHNSTON and Brian WARD                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 12 April 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                  B. CONFORTI                  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 21 November 1994 by Harry JOHNSTON and Brian WARD against the United Kingdom and registered on 1 February 1995 under file No. 26374/95;        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 applicants are British citizens born in 1947 and 1944 respectively.   They are building contractors and live in Manchester. They are represented before the Commission by Mr. P. Wainwright, solicitor, of Messrs. Graham, Leigh, Pfeffer & Co, Manchester.   The facts of the case, as submitted by the applicants' representative, may be summarised as follows.   The particular circumstances of the case        In 1990 the applicants were sued in the Salford County Court on a contract which they had entered into in 1985 with a doctor.   The contract related to the sale of a piece of land next to the doctor's surgery and included provision for the land to be flattened and cleared.   Judge Bernstein gave judgment on 2 October 1992.   She found that the applicants had failed to fulfil their part of the contract, and awarded the plaintiff £2,000.00 by way of damages for the work he had had to have done himself - half of the amount he had claimed.        The applicants state that they had been trying to establish before the trial whether the plaintiff had instructed a quantity surveyor in 1985, as, if he had, he would have known about the state of the site at the time.   It was only after the plaintiff had claimed at the trial that a quantity surveyor had not been involved, that an architect (who had been involved) offered to contact the quantity surveyor.   The quantity surveyor had evidence which contradicted the plaintiff's case and supported the applicants' case.   He also had photographs and documents relating to his initial survey in 1985.        On 3 December 1992 the applicants applied for a re-trial under Order 37 rule 1 of the County Court Rules.   On 10 December 1992 the judge - the original trial judge - granted leave to have the matter re- heard.   The plaintiff applied for leave to appeal against that order. On 19 May 1993 Lord Justice Kennedy rejected the application on the ground that the judge had correctly applied the principles governing applications which are laid down in Ladd v. Marshall [1954] 3 All ER 745.   The plaintiff further applied to the Court of Appeal for leave to appeal.   Lord Justice Staughton granted leave to appeal on 21 July 1993, and on 11 January 1994 the Court of Appeal allowed the plaintiff's appeal.   Lord Justice Glidewell set out the history of the dispute, and noted that there had been a complete conflict of evidence before the first instance judge, and that she had preferred the evidence of the plaintiff.   He also noted that she had not accepted the amount of damages claimed, and had reduced it from £4,000.00 to £2,000.00 plus interest.   He further noted that in hearing the application for a re-trial, the judge had directed herself in accordance with the principles in the County Court Practice and the principles in Ladd v. Marshall.        Lord Justice Glidewell considered that of particular importance was what evidence could properly have been obtained on behalf of the applicants for the trial.   He considered that the quantity surveyor could have been required to attend, and that the applicants' solicitor could have consulted with him.   He concluded:        "For my part, I take the view that the judge was wrong to      conclude that the evidence of [the quantity surveyor], including      the documents he now produces, could not have been obtained with      reasonable diligence for use at the trial.   I think with      reasonable diligence they could have been obtained and they      should have been obtained."        In allowing the plaintiff's appeal, Lord Justice Glidewell added that although the evidence submitted could indicate that the value of work omitted by the applicants did not exceed £750.00, that was of limited relevance as it could only affect the quantum of damages, and the application had been for a re-trial, not a re-trial on damages only.        The House of Lords refused the applicants leave to appeal to it on 23 May 1994.   Relevant domestic law        The County Court Practice at the relevant time provided that:        "In special and exceptional circumstances a new trial may be      granted because new evidence has been discovered, but it is      essential that as a preliminary step a party asking for a new      trial on this ground should show that there was no remissness on      his part in adducing all possible evidence at the trial."        In Ladd v. Marshall ([1954] 3 All ER 745) Lord Denning M.R. held:        "In order to justify the reception of fresh evidence or a new      trial, three conditions must be fulfilled: first, it must be      shown that the evidence could not have been obtained with      reasonable diligence for use at the trial: second, the evidence      must be such that, if given, it would probably have an important      influence on the result of the case, although it need not be      decisive: third, the evidence must be such as presumably to be      believed, or in other words, it must be apparently credible,      although it need not be incontrovertible."        Lord Justice Hodson, in the same case, considered the discretion to re-hear a matter (under the Rules of the Supreme Court, which apply in the High Court), and noted that "[t]hat discretion has been always exercised in the light of the maxim interest reipublicae ut sit finis litium".   COMPLAINTS        The applicants allege a violation of Articles 6 and 13 of the Convention.   They consider that the right to a fair hearing must include the right to a new hearing where the first hearing was unfair, and that a hearing is unfair if it proceeds in the absence of relevant evidence.        The applicants consider that the "reasonable diligence" test in Ladd v. Marshall places a disproportionately severe limitation on a party's opportunity to present his case fully, and that even if the test as such is compatible with the Convention, the Court of Appeal in the present case infringed the Convention by forming the incorrect view that the applicants failed to use reasonable diligence.   In particular, the applicants claim that the Court of Appeal overstepped its jurisdiction in domestic law, and that they did in fact exercise reasonable diligence.        The applicants underline that the trial judge - who was best placed to decide whether there should be a re-trial - granted the application.        It is contended that the refusal of leave to appeal to the House of Lords violated Article 13 of the Convention.   THE LAW        The applicants allege a violation of Articles 6 and 13 (Art. 6, 13) of the Convention.   Article 6 (Art. 6) of the Convention provides, so far as relevant, as follows.        "1.    In the determination of his civil rights and obligations      ..., everyone is entitled to a fair and public hearing ..."        The Commission recalls its case-law that Article 6 para. 1 (Art. 6-1) of the Convention does not apply to proceedings concerning an application for a review of civil proceedings (Nos. 13601/88 & 13602/88, Dec. 6.7.89, D.R. 62, p. 284, with further references).   The position will, however, be different where an application for a re- trial is granted, since those (re-opened) proceedings do determine civil rights or a criminal charge, as the case may be (in the context of a criminal case which was referred to the Court of Appeal by the Home Secretary, see Eur. Court H.R., Edwards judgment of 16 December 1992, Series A no. 247).        In the present case, the Court of Appeal eventually decided that there should not be a re-trial of the case, and so the guarantees of Article 6 (Art. 6) do not apply to the proceedings which began with the applicants' application of 2 December 1992 and ended with the House of Lords refusal of leave to appeal of 23 May 1994.   The decision of Judge Bernstein never became final because the plaintiff appealed against it, and so the applicants cannot rely on it.        The applicants claim that Article 6 (Art. 6) itself guaranteed a right to a re-trial in the circumstances of the present case.        The Commission here recalls that Article 6 (Art. 6) does not guarantee a right to an appeal, although Article 6 will apply to any appeal which is provided (see, for example, No. 16598/90, Dec. 16.12.90, D.R. 66 pp. 260, 263 with further references).   The same applies to re-trials: the Convention does not guarantee a right to a re-trial, although if one is granted, the guarantees of Article 6 (Art. 6) will apply as they did at the first trial (see above).        To the extent that the applicants allege that the first instance trial was not fair, the Commission notes that they make no allegations of unfairness other than the question of the new evidence they wished to bring.   In any event, they did not appeal the decision of 2 October 1992.        As to Article 13 (Art. 13) of the Convention, the Commission recalls that in connection with similar arguments to those under Article 6 (Art. 6) of the Convention, the requirements of Article 13 are less strict than, and may well be absorbed by, those of Article 6 (Art. 6) (Eur. Court H.R., Kamasinski judgment of 19 December 1989, Series A no. 168, p. 45, para. 110).   In any event, Article 13 (Art. 13) cannot afford a right of appeal to a superior court (No. 13135/87, Dec. 4.7.88, D.R. 56, pp. 268, 274).        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, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber        President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)