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FOURTH
SECTION
CASE OF RICHARD ANDERSON v. THE UNITED KINGDOM
(Application
no. 19859/04)
JUDGMENT
STRASBOURG
9
February 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Richard Anderson v. the United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech
Garlicki,
President,
Nicolas
Bratza,
Giovanni
Bonello,
Ljiljana
Mijović,
Päivi
Hirvelä,
Ledi
Bianku,
Nebojša
Vučinić,
judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 19 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 19859/04) against the
United Kingdom of Great Britain and Northern Ireland
lodged with the Court under Article
34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by a
British national, Mr Richard Anderson (“the applicant”),
on 27 May 2004.
- The
United Kingdom Government (“the Government”) were
represented by their Agent, Ms E. Willmott of the Foreign and
Commonwealth Office.
- On
15 January 2008 the
Acting President of the Fourth Section to which the case had been
allocated decided to give notice of the application to the
Government. It was also decided to rule on the admissibility and
merits of the application at the same time (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
1. The background to the applicant's civil proceedings
- The
applicant was born in 1952 and lives in Glasgow. He is an advocate by
profession. He owned a flat in a tenement building in Edinburgh. A
number of the flats in the building were also owned by a commercial
property company. In August 1988, when the proprietors of the
building failed to carry out repairs mandated by the city council
under statutory notices, the city council itself instructed works to
be carried out (provided for by section 99 of the Civic Government
(Scotland) Act 1982). It sought advice from a private architect,
awarded the contract for the repairs to a private preservation
company and apportioned the cost of the repairs among the various
proprietors of the building. In October 1988, a fire occurred in the
building which damaged part of the applicant's flat and part of the
flat below belonging to the commercial property company. Whilst the
applicant was living elsewhere, the commercial property company
instructed repair work. The applicant claimed that both sets of
repairs constituted trespass to his property, that in each case the
repairs were in fact inadequate and unsatisfactory, and that he was
entitled to damages in the sum of GBP 100,000.
2. Proceedings in the Sheriff Court
- When the applicant refused to pay the council for his
share of the repair costs, the council brought proceedings in the
Sheriff Court (the civil court of general jurisdiction). The
applicant filed a counter-claim alleging that the council had
instructed further repairs that had damaged his property. The
applicant further sought referral of the whole case to the Court of
Session (the highest civil court in Scotland).
On 14
November 1994 the Sheriff Court upheld the council's claim, rejected
the applicant's counter-claim and found that the case did not meet
the criterion for referral to the Court of Session. On 11 May 1995,
the applicant's appeal to the Sheriff Principal was rejected.
In
1998, the applicant then brought proceedings against the architect
and chief executive of the preservation company for contempt of court
in relation to an alleged failure to produce documents in the initial
action. By judgments of 17 February 1999, the Sheriff Court rejected
the applicant's claims.
3. Proceedings in the Court of Session
- On
26 March 1997, the applicant obtained a summons to bring proceedings
against the commercial property company (“the first defenders”)
and the city council (“the second defenders”) in the
Outer House of the Court of Session, alleging that the statutory
notices were invalid on grounds of fraud and illegal conspiracy. The
second defenders were served on 15 April 1997. The first defenders
were served on 14 May 1997. Defences were lodged by both defenders on
12 June 1997. Between that date and 7 January 1998 the record in the
case (the parties' written pleadings) was open and closed on a number
of occasions at the request of the parties and with the leave of the
court to allow for adjustment of their pleadings.
- The
applicant was then informed by the court that, since part of his
claim challenged one of the orders made in the Sheriff Court
proceedings, he was required to intimate a copy of the closed record
to the relevant sheriff clerk. On 26 February 1998, the court gave
him leave to do so. There was then further correspondence between the
parties as to the future procedure in the case, which led the
applicant to apply to the court first, for an order for disclosure of
certain documents and second, for a warrant to direct the relevant
sheriff clerk to transmit the record of the Sheriff Court proceedings
to the Court of Session. On 15 July 1998, the applicant's motion to
this effect was adjourned to 22 September 1998. On the latter date,
the motion was granted by way of interlocutor. This was done when the
first defenders, despite their opposition to the motion, failed to
appear. On 2 October 1998, the Lord Ordinary granted the first
defenders leave to reclaim (appeal) to the Inner House against the
interlocutor of 22 September 1998 in so far as it related to the
disclosure of documents.
- On
8 October 1998, the Inner House directed the parties to lodge their
grounds of appeal within 28 days. On 4 November 1998, the first
defenders lodged their grounds of appeal. It appears that, by
oversight, the first defenders failed to apply for a hearing.
- On
5 November 1999, the Inner House allowed the applicant to amend his
pleadings and allowed the other parties to lodge answers within 21
days. On 7 December 1999, on the first defenders' unopposed motion,
the Inner Court appointed the case to the Summar Roll (the list of
appeals and other business before it). On 3 February 2000, the Inner
House allowed the second defenders' answer to be received late. The
interlocutory appeal was then to be heard in one day, 26 May 2000,
but this date was vacated when, on 20 April 2000, the applicant
explained to the court that he believed a two day hearing would be
necessary. On 9 June 2000, the hearing was then fixed for 15 and 16
March 2001. On 7 February 2001, the applicant advised the court that
a one-day hearing would be sufficient. The interlocutory appeal was
duly heard on 15 March 2001 and, in a judgment given the same day,
the Inner House allowed the first defenders' reclaiming motion and
remitted the case back to the Lord Ordinary in the Outer House.
- On
20 March 2001, upon remittal to the Outer House, further directions
were given for disclosure. On 14 September 2001, on the motion of the
first defenders, the court appointed the case to the procedure roll
for a debate (hearing) on pleas-in-law. After two dates for that
debate were vacated, a two-day hearing was fixed for 20 and 21 June
2002. On 15 May 2002, the court allowed the applicant to lodge
further supplementary arguments alleging a lack of candour in the
defenders' pleading but refused his motion for further disclosure.
The case was heard on 21 June 2002. As a result of that hearing, the
applicant's action was dismissed on 4 September 2002 by the Outer
House. In a written judgment, the Lord Ordinary found the applicant's
claims to be unfounded and unspecified.
- The
applicant appealed to the Inner House. The appeal was listed for 18
and 19 November 2003. On 4 November 2003, the Inner House refused the
applicant's motion for leave to amend his appeal. However, on
13 November, it allowed him to abandon his appeal against the
second defenders and proceed only against the first defenders. The
appeal was heard on 18 and 19 November 2003. The appeal was
unanimously dismissed on 11 December 2003, the court finding that the
applicant's pleadings lacked specification. The applicant was found
liable for the first defenders' costs on 18 December 2003.
- In
June 2002 the applicant also sought to bring proceedings in the Court
of Session against the solicitors acting for the council in the
Sheriff Court proceedings. Unable to obtain a solicitor who would
provide the necessary signature on the summons, the applicant
petitioned the Court of Session for leave to proceed without the
signature. Leave was refused on the papers on 25 July 2002.
Complaints made in relation to the solicitors and advocates
representing the council were dismissed by their respective
professional bodies and then by the Scottish Legal Services Ombudsman
on 13 November 2001 and 4 July 2003, respectively.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION ARISING FROM THE LENGTH OF THE COURT OF SESSION
PROCEEDINGS
- The
applicant principally complained that the length of the proceedings
before the Court of Session challenging the statutory notices was
incompatible with the “reasonable time” requirement of
Article 6 § 1 of the Convention. He also referred to Article 13
of the Convention in this connection.
Article
6 § 1 of the Convention, in so far as relevant, reads as
follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
A. Admissibility
1. The parties' submissions
- The Government contended that the applicant had failed
to exhaust domestic remedies as he did not complain about the alleged
unreasonable length of the proceedings before the Outer and Inner
Houses of the Court of Session. First, before the Outer House, when
the parties could not agree to the future procedure in the case, the
applicant could have enrolled a motion for the court to decide on
future procedure. Second, in October 1998, he had failed to seek
early disposal of the first defenders' reclaiming motion or to have
it heard as a single bill (a motion which can be heard in a short
period of time) rather than on the Summar Roll. The brief and
interlocutory nature of the appeal meant it would have been
well-suited to being heard promptly in this way. Third, when the
first defenders failed to apply for a hearing before the Inner House,
the applicant failed to apply for the reclaiming motion to be refused
for want of insistence. He could also have requested that the first
defenders be asked to explain to the court whether they intended to
insist upon their appeal. Fourth, in December 1999, when the case was
on the Summar Roll, he again failed to seek early disposal of the
appeal or to have the case heard as a single bill. Fifth, in October
2001, when the case was on the procedure roll, the applicant failed
to agree to allowing the case to be put on the “warning list”
(a list of cases that could be heard at short notice). Sixth, in
October 2002, the applicant failed to seek early disposal of his own
reclaiming motion. Apart from the failure to make use of these
procedures, at no point did the applicant enrol a motion, making
reference to Article 6 § 1 of the Convention, to have the case
expedited. He also had not sought any redress under the Human Rights
Act 1998. Finally, the Government argued that the absence of a formal
case management system for some ordinary actions in the Court of
Session did not prevent litigants from using the above procedures to
expedite cases.
- The applicant argued that the Government's submissions
were without foundation. For the first alleged remedy, a motion on
future procedure, the delay at that stage was minimal. For the
remaining delays and the possibility of an early disposal of the
appeal, such a procedure existed but it was for urgent matters, such
as an appeal against an order removing someone from the matrimonial
house, and there was nothing in the present case that met that test.
Instead, the applicant's concern throughout the proceedings was that
the defenders had been less than candid in their pleadings and he had
sought to address that in his own pleadings and in his motion to that
effect, which had been refused on 15 May 2002.
2. The Court's assessment
- The Court reiterates that Article 35 § 1
of the Convention requires that the complaints intended to be brought
subsequently before the Court should have been made to the
appropriate domestic body, at least in substance and in compliance
with the formal requirements laid down in domestic law, but that no
recourse need be had to remedies which are inadequate or ineffective.
The existence of the remedy must be sufficiently certain, failing
which it will lack the requisite accessibility and effectiveness.
Article 35 of the Convention also provides for a distribution of the
burden of proof. It is incumbent on the Government claiming
non exhaustion to satisfy the Court that the remedy was an
effective one available in theory and in practice at the relevant
time, that is to say, that it was accessible, was one which was
capable of providing redress in respect of the applicant's complaints
and offered reasonable prospects of success (see Bullen and Soneji
v. the United Kingdom, no. 3383/06, §
43, 8 January 2009, with further references).
- In
determining whether the present applicant has exhausted domestic
remedies, the Court also recalls its findings in the cases of Price
and Lowe v. the United Kingdom (nos. 43185/98 and 43186/98,
§ 23, 29 July 2003) and Crowther v. the United
Kingdom (no. 53741/00, § 29, 1 February 2005) where it
held:
“a principle of domestic law or practice that the
parties to civil proceedings are required to take the initiative with
regard to the progress of the proceedings, does not dispense the
State from complying with the requirement to deal with cases in a
reasonable time...The manner in which a State provides for mechanisms
to comply with this requirement, whether by way of increasing the
numbers of judges, or by automatic time-limits and directions, or by
some other method, is for the State to decide. If a State lets
proceedings continue beyond the 'reasonable time' prescribed by
Article 6 of the Convention without doing anything to advance them,
it will be responsible for the resultant delay.”
- The
Court finds that, in the present case, the Government's submissions
have essentially identified periods in the proceedings where the
delay was caused by the applicant's conduct and, in particular, his
failure to take “the initiative with regard to the process of
the proceedings”. As such, and consistent with its approach in
the cases of Price and Lowe, Crowther and Bullen and
Soneji, all cited above, it finds that these submissions in
reality go to the merits of the application and in particular to the
applicant's conduct and contribution, if any, to the length of the
proceedings. It follows that the Government's objection to
non-exhaustion of domestic remedies must therefore be dismissed.
- The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
The complaints must therefore be declared admissible.
B. Merits
(a) Article 6 § 1
1. The parties' submissions
- The
Government considered that, because in Scots law proceedings commence
when a summons is served on the defender, the relevant period began
on 15 April 1997. It ended on 18 December 2003 when the Inner House
found the applicant to be liable for the first defenders costs. The
total period was therefore some six years and eight months.
- In
the Government's submission, the proceedings were of some complexity
as evidenced by the applicant's own attempts to amend his written
pleadings by means of lengthy minutes of amendment. Responsibility
for the progress of proceedings rested with the parties, in
particular the applicant as pursuer in the case. In considering what
steps he should have taken, it was to be noted that the applicant was
represented by a firm of solicitors who regularly acted for litigants
in the Court of Session and the applicant himself was an advocate who
had practised in the Court of Session for many years. He had failed
to show diligence in carrying out the procedural steps required of
him, he had used delaying tactics and he had failed to avail himself
of the available means for shortening the proceedings. In addition to
the failure to take the steps set out by the Government in their
submissions on non-exhaustion (see paragraph 15 above), he was also
culpable for the delay in the following ways. He had failed to
complete service until 14 May 1997; he did not oppose the defenders'
motions for adjustment made in 1997; he continued to develop his
pleadings from September 1997 – January 1998; he failed
promptly to obtain the necessary warrant for intimation to the clerk
of the Sheriff Court and, having done so, he had failed to enrol a
motion for further procedure to be determined. Before the Inner
House, he had persuaded that court that a two-day hearing was
necessary (causing the hearing to be postponed) when in fact it was
heard in one hour on 15 March 2001. After that hearing he had failed
to respond to the defenders' calls to agree upon further procedure.
When the case was remitted to the Outer House he had also caused
another hearing date to be vacated by insisting that a two-day
hearing was required, when in fact the hearing only took one day.
For
the period from late 1998 to autumn 1999, the Government understood
that the parties were involved in other proceedings in the Sheriff
Court (see paragraph 5 above), in settlement discussions and the
complaint proceedings brought by the applicant. The Inner House could
have held a hearing in this period but the Government submitted that,
during this period, it was clear that the parties were content to
leave the proceedings in abeyance. When the parties had agreed on
future procedure, all hearings dates had been set with reasonable
promptness; judgments then had been issued promptly by both the Outer
House and the Inner House. The dispute was about repairs to property
and was not of a nature to require special efforts of expedition.
- The
applicant submitted that the initial delay in service was by no means
out of the ordinary. Thereafter the case began to depart from the
procedure ordinarily followed in the Court of Session, principally
because the defenders had not properly outlined their defences and
had not adjusted their pleadings in the time when they could do so
without needing to obtain the leave of the court. The applicant was
not to blame for his failure to oppose the defenders' motion for
adjustment: there was nothing to be gained from such an objection and
it was better for the procedure to obtain as full a set of written
pleadings as possible. When those adjustments were finally filed, he
had no choice but to apply for an extension of time to adjust his own
pleadings. He accepted that there was a short delay on his part in
giving notice of the proceedings to the clerk of the Sheriff Court
but, at the same time, there was nothing more he could have done when
his motion for specification for documents (which the defenders had
opposed) was before the court.
When
the defenders appealed to the Inner House, the applicant was not at
fault for failing to seek early disposal of the appeal. As he had
submitted at paragraph 16 above, the case was not of the type that
would be expedited by the Inner House. He was also not to blame for
seeking a two-day hearing before the Inner House, believing this was
necessary given the lack of specification in the defenders' written
pleadings. He submitted that almost the whole of the proceedings were
taken up by his attempts to force the defenders to make candid and
proper disclosure of their case and, moreover, that the majority of
the delay was due to the inability of the Outer and Inner House to
control the proceedings. There was no proper system of case
management by the courts; the Scottish courts had only introduced
such a principle after his case had been concluded.
2. The Court's assessment
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- As
to the first of these criteria, the complexity of the case, the Court
cannot accept the Government's argument that this was a complex civil
dispute. The case turned entirely on the veracity of the applicant's
allegations of fraud and illegal conspiracy and there had already
been previous litigation between the applicant and the city council
in the Sheriff Court. There were no novel points of law at stake and
the Outer House was ultimately able to reject the applicant's
allegations as unfounded and unspecified. The Inner House was also
able to dismiss the applicant's appeal from the Outer House's
decision for substantially the same reasons. The relative lack of
complexity of the case is also demonstrated by the fact that, once
various procedural issues had been resolved, the Inner House was able
to dismiss each appeal to it shortly after hearing oral argument.
- As
to the third criterion, what was at stake for the applicant, the
Court does not accept that the proceedings were of exceptional
significance. The repairs to the property may have had some financial
consequences for the applicant but this matter had already been
litigated before the Sheriff Court and, in the Court's view, the
Court of Session proceedings were secondary to that litigation.
- The
Court finds that whether there was a breach of Article 6 § 1
essentially turns on the second criterion, that is, the extent to
which any delay was attributed to the conduct of the applicant or the
relevant authorities. Having reviewed the record of the proceedings
submitted by the parties, the Court finds that the applicant bears
some responsibility for the delay in the initial stage of
proceedings, notably his attempts to have the written pleadings
amended on several occasions and his failure promptly to obtain a
warrant for intimation to the clerk of the Sheriff Court. However, it
accepts that, in respect of the former, the applicant was motivated
by a desire to have the written record as fully developed as possible
and there was nothing to be gained from objecting to attempts by the
defenders to amend their pleadings. The Court also rejects the
Government's submission that the applicant contributed to the length
of the proceedings by insisting on a two-day hearing for an
interlocutory appeal before the Inner House and for the debate on
pleas-in-law once the case had been remitted to the Outer House. It
sees no reason why this would have required the one-day hearing dates
to be vacated since, in the Court's view, it would not have been
necessary for a two-day hearing to have taken place on two successive
days; each hearing could have gone ahead and, if a second day proved
necessary, arrangements been made for the hearing to be continued on
the next available date.
- Moreover,
the Court finds that there were periods of inactivity for which no
satisfactory explanation has been given by the Government. The Court
is particularly struck by the fact that the first appeal was before
the Inner House from 22 September 1998 until 15 March 2001 and there
was little or no activity between late 1998 and autumn 1999. It may
well have been that, as the Government submitted, the parties were
involved in other proceedings and settlement discussions. However,
the Court finds that these considerations were not sufficient to
absolve the Inner House of its own obligation to take an active role
in the management of proceedings and to make enquiries of the parties
to ascertain their position in respect of the appeal. As the Court
has frequently stated, the State remains responsible for the
efficiency of its system; the manner in which it provides for
mechanisms to comply with the reasonable time requirement –
whether by automatic time-limits and directions or some other method
– is for it to decide. If a State allows proceedings to
continue beyond the “reasonable time” prescribed by
Article 6 of the Convention without doing anything to advance them,
it will be responsible for the resultant delay (Bhandari v. the
United Kingdom, no. 42341/04, § 22, 2 October 2007, together
with further references therein). Additionally, for the time the
interlocutory appeal was pending before the Inner House, the Court
does not find that any significant period of delay can be attributed
to the applicant or that the expedition of the proceedings was his
responsibility at this stage; the interlocutory appeal had been taken
by the first defenders when the applicant's motion for disclosure –
which they opposed but for which they failed to appear in person –
had been granted by the Outer House.
- In
all the circumstances, the Court does not consider that the
proceedings were pursued with the diligence required by Article 6 §
1. There has accordingly been a violation of that provision, in that
the applicant's “civil rights and obligations” were not
determined within “a reasonable time”.
(b) Article 13
- To
the extent that the applicant also appears to rely on Article 13 in
respect of the length of the proceedings before the Court of Session,
the Court, having regard to the particular circumstances of the case
and its analysis of the Article 6 complaint, finds that it is not
necessary to examine the complaint under Article 13.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant made the following additional complaints. First, under
Article 6 § 1 of the Convention, he complained that the refusal
of the Court of Session to grant leave for him to proceed without the
necessary signatures on his summons violated his right of access to
court. Secondly, under Article 6 § 1 he alleged that there was a
lack of a fair hearing in three aspects: (i) that the Sheriff Court
and Sheriff Principal refused to hold oral hearings on preliminary
matters before them; (ii) that the Court of Session while it heard
oral argument, essentially based its ruling on preliminary, written
pleadings; and (iii) that the Court of Session failed in its duty to
make a proper examination of the submissions, arguments and evidence
adduced by the parties. Thirdly, under Article 6, the applicant
complained that the courts hearing his case, while themselves
independent and impartial, were not in fact independent and impartial
by virtue of the corruption and contempt of court of the legal
representatives before them. Fourthly, invoking Article 13 of the
Convention, the applicant complained that there was no effective
remedy in respect of these alleged violations of Article 6 § 1.
Finally, he complained under Article 8 of the Convention that the
council, by entering his property to carry out the repairs, failed to
respect his right to respect for his home.
- For
the first complaint, the Court observes that the leave to proceed was
refused on 25 July 2002. The present application was lodged on 27 May
2004 therefore this complaint has been introduced out of time and
must be rejected pursuant to Article 35 §§ 1 and 4 of the
Convention.
- For
the second complaint, the Court does not find that the refusal of the
Sheriff Court and the Sheriff Principal to hold oral hearings
amounted to a breach of Article 6: the obligation to hold an oral
hearing in civil proceedings in not absolute and the nature of the
issues to be decided by the Sheriff Court and the Sheriff Principal
justified their decision to dispense with oral hearings at the
preliminary stage of proceedings before them (Jussila v. Finland
[GC], no. 73053/01, §§ 41–42, ECHR 2006 XIII).
It further finds the applicant's complaint that the Court of Session
based its ruling on written pleadings to be unsubstantiated and his
complaint that it failed to make a proper examination of the papers
before it to be fourth instance in nature. It follows that this
second complaint must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the Convention.
- For
the third complaint, the Court finds these allegations to be wholly
unsubstantiated and thus also to be rejected as manifestly
ill-founded. For the fourth complaint, brought under Article 13 taken
in conjunction with Article 6 § 1 of the Convention, the
applicant's substantive complaints have been rejected pursuant to
Article 35 of the Convention. The Court is not persuaded that any of
these complaints were “arguable” (Hatton and Others v.
the United Kingdom [GC], no. 36022/97, § 137, ECHR
2003 VIII) and thus Article 13 has no application to these
complaints. The Court therefore rejects this part of the complaint as
manifestly ill-founded.
- For the final complaint, which has been made under
Article 8, the Court finds that the applicant has failed to rely on
that Article in any of the domestic proceedings which he has brought
against the council or the private parties he alleged to be
responsible. Hence, this complaint must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion of domestic
remedies.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed GBP 85,603.14 (approximately EUR 97,030) in respect
of pecuniary damage. This included the costs he was ordered to pay to
the first and second defenders by the Inner House (GBP 33,000 –
approximately EUR 37,406) and the money he owed to the city council
for the repair work (GBP 30,403.14 – approximately EUR 34,463).
He was required to sell his home to pay these costs and was forced to
pay rental on another house for 2005–2008; the rental costs
were GBP 22,200 (approximately EUR 25,172). The applicant further
claimed GBP 10,000 in respect of non-pecuniary damage arising from
the emotional distress caused by the alleged breaches of the
Convention and by the loss of his home.
- The
Government contested these claims. In respect of the claim for
pecuniary damage, they submitted there was no causal connection
between the damage claimed and any of the breaches of the Convention
alleged by the applicant. In respect of the claim for non-pecuniary
damage, they submitted that the applicant had failed to explain how
any emotional distress was caused by any particular delay in the
Court of Session proceedings. Furthermore, any delay was not the
cause of the loss of the applicant's home.
- The
Court notes that it has only found a violation of Article 6 § 1
in respect of the length of the Court of Session proceedings.
Moreover, it does not discern any causal link between that violation
and the pecuniary damage alleged; it therefore rejects the
applicant's claim for pecuniary damage. It also does not discern any
causal link between this violation and any distress that the loss of
the applicant's home would have caused him. On the other hand, it
accepts the unreasonable delay in the Court of Session proceedings
must have caused the applicant some distress and frustration. As a
result he has certainly suffered non-pecuniary damage which is not
sufficiently made good by the finding of a violation of the
Convention. Ruling on an equitable basis, it awards him EUR 1,500.
B. Costs and expenses
- In
his claim for just satisfaction the applicant stated that he had
retained lawyers to represent him before the Court and sought
recovery of his legal costs and expenses. The Court recalls that in
order for costs and expenses to be recoverable under Article 41 of
the Convention, it must be established that they were actually and
necessarily incurred, and reasonable as to quantum (see, among other
authorities, D.G. v. Ireland, no. 39474/98, § 128,
ECHR 2002 III). The Court notes that no itemised statements were
provided in relation to the costs and expenses. Consequently, it
makes no award under these heads.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning the excessive
length of the proceedings and the absence of an effective remedy in
that connection admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that it is not necessary to examine the
applicant's complaint under Article 13 of the Convention in the
particular circumstances of the instant case;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,500 (one
thousand five hundred euros) in respect of non-pecuniary damage to be
converted into pounds sterling at the rate applicable at the date of
settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 9 February 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki
Registrar President
