CEDH · CASELAW;REPORTS;ENG — 4 juillet 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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                              Application No. 22410/93                            Geoffrey and Margaret Robins                                       against                                 the United Kingdom                              REPORT OF THE COMMISSION                            (adopted on 4 July 1996)                                    TABLE OF CONTENTS                                                                              Page   I.     INTRODUCTION       (paras. 1 - 8). . . . . . . . . . . . . . . . . . . . . . . . . . . 1     II.    ESTABLISHMENT OF THE FACTS       (paras. 9 - 23) . . . . . . . . . . . . . . . . . . . . . . . . . . 3   A.     The particular circumstances of the case       (paras. 9 - 21) . . . . . . . . . . . . . . . . . . . . . . . . . . 3   B.     Relevant domestic law       (paras. (22 - 23) . . . . . . . . . . . . . . . . . . . . . . . . . 4     III.   OPINION OF THE COMMISSION       (paras. 24 - 40). . . . . . . . . . . . . . . . . . . . . . . . . . 6         A.     Complaint declared admissible             (para. 24). . . . . . . . . . . . . . . . . . . . . . . . . . 6         B.     Point at issue             (para. 25). . . . . . . . . . . . . . . . . . . . . . . . . . 6         C.     As regards Article 6 para. 1 of the Convention             (paras. 26 - 39). . . . . . . . . . . . . . . . . . . . . . . 6               CONCLUSION             (para. 40). . . . . . . . . . . . . . . . . . . . . . . . . . 8     DISSENTING OPINION OF MRS. J. LIDDY, MM. G.B. REFFI, I. BÉKÉS, G. RESS, K. HERNDL. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9   DISSENTING OPINION OF MR. ROZAKIS, MRS. THUNE AND MR. LOUCAIDES . . . . .11   DISSENTING OPINION OF MR. E. BUSUTTIL . . . . . . . . . . . . . . . . . .12     APPENDIX I:        PARTIAL DECISION OF THE COMMISSION                   AS TO THE ADMISSIBILITY OF THE APPLICATION. . . . . . .13   APPENDIX II:       FINAL DECISION OF THE COMMISSION                   AS TO THE ADMISSIBILITY OF THE APPLICATION. . . . . . .20     I.INTRODUCTION   1.     The present Report concerns Application No. 22410/93 introduced on 14 March 1993 against the United Kingdom and registered on 3 August 1993.   2.     The applicants are United Kingdom nationals born in 1942 and 1943 respectively and resident in Crediton and London.   3.     The respondent Government are represented by their Agent, Ms. Susan J. Dickson.   4.     On 22 February 1995 the Commission (First Chamber) communicated to the respondent Government the applicants' complaint under Article 6 para. 1 of the Convention insofar as it concerned the length of the cost proceedings in their case and declared the remainder of the application inadmissible.   5.     Following an exchange of written observations, the complaint relating to the length of the cost proceedings (Article 6 para. 1 of the Convention) was declared admissible on 18 January 1996.   The decision on admissibility is appended to this Report.   The applicants have submitted observations on the merits on 18 March 1996.   6.     Having noted that there is no basis upon which a friendly settlement within the meaning of Article 28 para. 1 (b) of the Convention can be secured, the Commission, after deliberating, adopted this Report on 4 July 1996 in accordance with Article 31 para. 1 of the Convention, the following members being present:               MM.    S. TRECHSEL, President                   H. DANELIUS                   C.L. ROZAKIS                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER             Mrs.   G.H. THUNE             Mr.    F. MARTINEZ             Mrs.   J. LIDDY             MM.    L. LOUCAIDES                   J.-C. GEUS                   G.B. REFFI                   M.A. NOWICKI                   B. CONFORTI                   I. BÉKÉS                   J. MUCHA                   D. SVÁBY                   G. RESS                   A. PERENIC                   C. BÎRSAN                   P. LORENZEN                   K. HERNDL                   E. BIELIUNAS   7.     In this Report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by the United Kingdom.   8.     The text of the Report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   II.    ESTABLISHMENT OF THE FACTS   A.     The particular circumstances of the case   9.     By a judgment of 1 May 1991 the applicants' claims against their neighbours arising from a dispute over sewerage problems were dismissed.   The applicants' ensuing appeal was dismissed by the Court of Appeal on 19 October 1992.   10.    On 31 May 1991 the applicants' neighbours requested a further hearing to determine costs.   Hearings were held at the Exeter Combined Court Centre on 3 September and again on 19 September 1991, before Judge Clarke.   As the question of costs could not be resolved because of factual disputes and conflict between the parties, on 24 September 1991 Judge Clarke made a direction that the enquiry should be adjourned and not restored until a number of points concerning the applicants' entitlement to legal aid had been clarified.   11.    On 4 February 1992 the Legal Aid Board informed the Court that a fresh Department of Social Security assessment of the applicants' means was required in view of the fact that the applicants were not living together any longer.   12.    In a letter from the Department of Social Security, filed with the Court on 10 November 1992, it was explained that a delay of 9 months had been caused because those undertaking the assessment of means were under the wrong impression that the applicants had separated.   13.    The restored hearing was held on 12 - 13 November 1992 before Judge Darwall-Smith as Judge Clarke had fallen ill.   Judge Darwall- Smith said that his powers of assessment on the issue of costs were under Section 17 of the Legal Aid Act 1988 and that his discretion was very wide and included in particular assessment of the financial resources of all the parties and of their conduct.   Examining these criteria, the Judge observed that it was a mystery how the applicants had obtained legal aid with a nil contribution while their neighbours had been refused legal aid.   He did not consider that the applicants were eligible in the first place as they had an equity in Applewood more valuable than their neighbours' home.   14.    On 13 November 1992 Judge Darwall-Smith delivered his judgment on the cost matter.   He found that the balance of money retained by the Legal Aid Board (£ 4,599) should be paid to the defendants forthwith and that the applicants were liable to pay a sum of £6,000 (payable in instalments of £100 per month) in respect of costs.   15.    The applicants sought legal aid to appeal against this decision. By notice dated 11 January 1993, the applicants applied for an extension of time for appealing as it had expired on 11 December 1992. Subsequently queries were raised by one of the Civil Appeals Office lawyers as to whether leave to appeal, as well as an extension of the time for appealing were required, and the matter was referred to the Registrar.     16.    On 11 August 1993 Counsel advised the applicants that while it was correct that the Judge enjoyed "wide discretion", it had to be applied on a proper basis.   He was probably wrong to conclude that the applicants were ineligible for legal aid and under Section 17(3) of the Legal Aid Act the Judge should not have taken into account the equity in Applewood, which was their home.   17.    In March 1993, September 1993 and again in March 1994 the applicants contacted the Court asking why there was a delay in dealing with the application.   18.    On 10 April 1994 the Registrar directed that leave to appeal against the costs order was not required.   The application was referred to the Full Court to determine the question of the extension of time and, if granted, to hear the appeal immediately.   The applicants were requested to lodge the relevant documents by 2 May 1994.   19.    Subsequently the applicants asked for extensions of this time limit as they had difficulties in tracing and obtaining the necessary notes and transcripts from the courts.   Extensions were granted on 25 April 1994, 24 May 1994, 16 June 1994, 6 July 1994 and again on 27 July 1994.   On 6 October 1994 the Registrar granted the applicants' request that transcripts of the judgment of Judge Darwall-Smith be produced at public expense.   20.    On various dates (for example in June, September, November and December 1994) the applicants contacted the respective offices by telephone and by mail asking for more expeditious handling of their requests for the production of the necessary documents.   By letter dated 17 June 1994, the Chief Clerk informed the applicants that he had difficulty in providing the documents requested but that the notes of the hearing of 3 September 1991 before Judge Clarke were being prepared.   It later transpired, from a response of the Chief Clerk dated 1 March 1995, that Judge Clarke's notes had been either lost or did not exist.   21.    Another extension of the time limit for the submission of the relevant documents was granted, upon the applicants' request, on 16 February 1995.   On 6 March 1995 some bundles of documents on the case were lodged with the Court of Appeal's Office.   On 29 March 1995 a Lord Justice directed that the application be listed ex parte in the first instance before the full court. Following a hearing held on 19 June 1995, the Court of Appeal confirmed Judge Darwall-Smith's judgment of 13 November 1992.   The Court concluded that the Judge had not taken into account the value of the applicants' home and had not exceeded his jurisdiction.   B.     Relevant domestic law   22.    Section 17 of the Legal Aid Act 1988 provides as follows:         "(1)   The liability of a legally assisted party under an order for costs made against him with respect to any proceedings shall not exceed the amount (if any) which is a reasonable one for him to pay having regard to all the circumstances, including the financial resources of all the parties and their conduct in connection with the dispute.         (2)    Regulations shall make provision as to the court, tribunal or person by whom that amount is to be determined and the extent to which any determination of that amount is to be final.         (3)    None of the following, namely, a legally assisted person's dwelling house, clothes, household furniture and the tools and implements of his trade shall               (a)    be taken into account in assessing his             financial resources for the purpose of this section,             or               (b)    be subject to execution or any corresponding             process in any part of the United Kingdom to enforce             the order,   except so far as regulations may prescribe".   23.    Section 18 of the Act, insofar as relevant, provides as follows:               "(1)   This section applies to proceedings to which a legally       assisted person is a party and which are finally decided in       favour of an unassisted party.               (2)    In any proceedings to which this section applies the       court by which the proceedings were so decided may, subject to       subsections (3) and (4) below, make an order for the payment by       the Board to the unassisted party of the whole or any part of the       costs incurred by him in the proceedings.               (3)    Before making an order under this section, the court       shall consider what order for costs should be made against the       assisted party and for determining his liability in respect of       such costs.               (4)    An order under this section in respect of any costs       may only be made if                     (a)    an order for costs would be made in the                   proceedings apart from this Act;                     (b)    as respects the costs incurred in a court of                   first instance, those proceedings were instituted by                   the assisted party and the court is satisfied that the                   unassisted party will suffer severe financial hardship                   unless the order is made; and                     (c)    in any case, the court is satisfied that it is                   just and equitable in all the circumstances of the                   case that provision for the costs should be made out                   of public funds...."   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   24.    The Commission has declared admissible the applicants' complaint that their case, on the matter of costs, was not heard within a reasonable time.   B.     Point at issue   25.    The only point at issue is whether the length of the cost proceedings complained of exceeded the "reasonable time" requirement referred to in Article 6 para. 1 (Art. 6-1) of the Convention.   C.     As regards Article 6 para. 1 (Art. 6-1) of the Convention   26.    The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention provides as follows:         "In the determination of his civil rights and obligations ...,       everyone is entitled to a ... hearing within a reasonable time       by (a) ... tribunal ..."   27.    The proceedings in question concerned the payment of costs resulting from civil proceedings.   The Government and the applicant accept that these proceedings concerned a dispute over "civil rights and obligations" and that they, accordingly, fall within the scope of Article 6 para. 1 (Art. 6-1) of the Convention.   28.    However, the Commission recalls that the applicability of one of the substantive clauses of the Convention constitutes, by its very nature, an issue going to the merits of the case, to be examined independently of the attitude of the respondent State (Eur. Court HR, Acquaviva v. France judgment of 21 November 1995, Series A No. 333-A, para. 45).   29.    The Commission, therefore, has to examine whether Article 6 (Art. 6)   of the Convention was applicable to the cost proceedings between the applicants and their neighbours.   30.    The Commission recalls that Article 6 (Art. 6) of the Convention applies to "contestations" (disputes) over "civil rights and obligations" recognised under domestic law.   It does not in itself guarantee any particular content for civil rights and obligations in the substantive law of the Contracting States.   Furthermore, Article 6 (Art. 6) of the Convention covers all proceedings the result of which is decisive for such rights and obligations.   A tenuous connection or remote consequences do not suffice for Article 6 (Art. 6) of the Convention to come into play (Eur. Court HR, Pudas v. Sweden judgment of 27 October 1987, Series A No. 125, p. 14, para. 31).   31.    Accordingly, in order to establish whether or not the length of the cost proceedings in the applicants' case falls to be examined under Article 6 (Art. 6) of the Convention, the Commission must ascertain whether these proceedings determined, or were an integral part of other proceedings which determined, a dispute over "rights and obligations" and, if so, whether such rights and obligations were of a "civil" character.   In this respect the Commission refers to the criteria and general approach established in the Court's case-law (cf. as a recent authority Eur. Court HR, Masson and Van Zon v. the Netherlands judgment of 28 September 1995, Series A No. 327, paras. 48 - 52).   32.    In particular, as regards the "civil" character of a right, the fact that it may be "pecuniary" in nature may be an important element, but it is not in itself decisive (cf. Eur Court HR, Schouten and Meldrum v. the Netherlands judgment of 9 December 1994, Series A No. 304, pp. 20 - 21. para. 50).   33.    In the present case the substantive dispute between the applicants and their neighbours, which may have involved the determination of civil rights and obligations,   was decided by Judge Clarke on 1 May 1991.   The dispute about procedural costs arose after this judgment.   Moreover, the outcome of the dispute concerning liability for costs could not have any relevance to the determination of the substantive matter in the case.   34.    The Commission therefore finds that the cost proceedings in the present case were not in any way linked to the determination of the civil rights and obligations, if any, which were the subject matter of the substantive dispute between the applicants and their neighbours.   35.    Turning to the question whether the cost proceedings taken in isolation determined "civil rights and obligations" and noting that under the relevant domestic law the courts enjoyed a wide discretion in deciding on the matter, the Commission nevertheless need not decide whether what was at stake for the applicants were their "rights" and "obligations" as in any event they were not of a "civil" character.   36.    Thus, in previous cases the Commission has held that decisions on procedural costs as a subsidiary issue to the merits of a case do not involve a determination of "civil rights and obligations" and that, therefore, the proceedings on such issues fall outside the scope of Article 6 (Art. 6) of the Convention.. (No.   12446/86, Dec. 5.5.88, D.R. 56, p. 229; and No. 18623/91, Dec. 2.12.91, unpublished).   37.    Furthermore, in the first above mentioned case, the Commission noted that questions of procedural costs might also arise in proceedings regarding subject matters which are clearly not covered by Article 6 para. 1 (Art. 6-1) of the Convention and that it would then not be reasonable to require a special procedure satisfying the requirements of that provision for the determination of costs.   Quite similar considerations apply to proceedings where the merits of the case are within the scope of Article 6 para. 1 (Art. 6-1) of the Convention, but the question of costs is decided separately, after the decision on the substantive dispute as in the present case or, for example, after a settlement on the merits, leaving it to the courts to decide only the liability for procedural costs.   There are no grounds to distinguish between cost proceedings on the basis of the underlying substantive dispute.   38.    The Commission finds, therefore, that the cost proceedings in the present case did not fall within the scope of Article 6 (Art. 6) of the Convention.   39.    In view of this finding the Commission is not called upon to determine whether or not the length of the cost proceedings in the applicants' case was "reasonable" within the meaning of Article 6 para. 1 (Art. 6-1).           CONCLUSION   40.    The Commission concludes, by 16 votes to 9, that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention.       Secretary to the Commission                President of the Commission               (H.C. KRÜGER)                                (S. TRECHSEL)                                                                 (Or. English)                             DISSENTING OPINION OF                       MRS. J. LIDDY, MM. G.B. REFFI,                        I. BÉKÉS, G. RESS, K. HERNDL           We are of the opinion that in the particular circumstances of the applicants' case Article 6 of the Convention required that all issues in the civil proceedings between them and their neighbours, including the cost matter, had to be determined within a reasonable time.         It is true that in previous cases the Commission has rejected as incompatible with the Convention ratione materiae complaints under Article 6 of the Convention concerning cost proceedings (No. 12446/86, Dec. 5.5.88, D.R. 56, p. 229; and No. 18623/91, Dec. 2.12.91). However, in these cases the plaintiffs abandoned their substantive claims and, therefore, the cost proceedings were not a continuation of a civil dispute as it was in the present case.   Moreover, the complaints in these cases concerned the lack of an oral hearing, and not the length of proceedings.         The Court has found that the length of the particular "enforcement" proceedings, under Portuguese law, should be taken into account when considering a complaint under Article 6 of the length of civil proceedings (Eur. Court H.R., Silva Pontes judgment of 23 March 1994, Series A No. 286A, p. 14, para. 33).   Furthermore, the same approach was adopted by the Commission as regards execution proceedings, which were independent and followed the proceedings on the merits in a civil case, when deciding on the reasonableness of the length of the proceedings as a whole (No. 15797/89, Comm. Report 6.7.95; and also No. 24295/94, Comm. Report   6.7.95).         In the present case the applicants did not abandon their substantive claims and, accordingly, the cost proceedings followed the proceedings on the merits of a dispute which doubtlessly involved the determination of the applicants' civil rights and obligations.         We therefore tend to the view that in the particular circumstances of the present case, without necessarily being applicable with all its normal fair and public trial safeguards (see, for example, Eur. Court HR, Schuler-Zgraggen v. Switzerland judgment of 24 June 1993, Series A No. 263), Article 6 of the Convention does require that all stages of the applicants' civil dispute, including the cost matter, be concluded within a reasonable time.   Such an approach is   consonant with the Contracting States' obligation under the Convention to secure the real and practical enjoyment of the rights enshrined therein.   The amount which was at stake for the applicants in the cost proceedings was at least £ 6,000 whereas their income was apparently modest, legal aid having been granted to them.   Therefore, in practical terms the proceedings were not over for the applicants until the matter of costs was not resolved.         If this approach was adopted by the majority, it could have found a violation of Article 6 as even the length of the cost proceedings taken alone was far from "reasonable" in the present case.         Thus, significant periods of delay are imputable to the State. A delay between February and November 1992 was apparently due to a factual misunderstanding affecting the assessment of the applicants' means, which was admitted by the Department of Social Security.   Also, it took more than 14 months, between January 1993 and 10 April 1994, for the Registrar of the Court of Appeal to find that leave to appeal was not required in the applicants' case.         We could then leave open the question of the extent to which, if any, the delay between April 1994 and May 1995, which was caused by the applicant's difficulties in tracing and obtaining the necessary notes and transcripts from the courts, was attributable to the applicants or to the Government, having regard to the fact that the applicants were acting in person and without legal aid.         We consider that no convincing explanation has been advanced by the respondent Government for at least the aforementioned delays of almost two years.                                                                   (Or. English)                               DISSENTING OPINION OF                  MR. ROZAKIS, MRS. THUNE AND MR. LOUCAIDES           We are of the opinion that the case-law of the Commission to the effect that cost proceedings were outside the scope of Article 6 of the Convention was linked to the old and narrower interpretation of Article 6 before the Salesi judgment (Eur. Court HR, Salesi v. Italy judgment of 26 February 1993, Series A No. 257-E).         The question of liability for the costs incurred by the other party to civil proceedings is a pecuniary matter.   It is of a private character, there being no "public" elements.   Accordingly, it concerns "civil rights and obligations" and Article 6 applies.         If this approach was adopted by the majority, it could have found a violation of Article 6.   In this respect we join the dissenting opinion of Mrs. J. Liddy, MM. G.B. Reffi, I. Békés, G. Ress, K. Herndl.                                                                   (Or. English)                        DISSENTING OPINION OF MR. E. BUSUTTIL           Unlike the majority I am of the opinion that cost proceedings come fairly and squarely within the ambit of Article 6 para. 1, since they are necessarily linked to the determination of the civil rights and obligations which constitute the subject-matter of a substantive dispute between the parties.         Article 6 requires, in my view, that all stages of a dispute relating to civil rights and obligations, including the matter of costs, should be definitively resolved within a reasonable time.   This becomes a matter of crucial importance in the United Kingdom where legal costs are notoriously high. Indeed, the applicants in the present case were finally condemned to pay a sum of £6,000 by way of costs (a not inconsiderable sum when one has regard to the fact that the applicants had initially been granted legal aid) after having lived with their relentless burden on their minds for the inordinately long period of four years for the cost proceedings alone.         In these circumstances, I find that there has been a violation of Article 6 para. 1 in the instant case.