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FOURTH
SECTION
CASE OF BHANDARI v. THE UNITED KINGDOM
(Application
no. 42341/04)
JUDGMENT
STRASBOURG
2
October 2007
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 Bhandari v. the United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Mr J. Casadevall,
President,
Sir Nicolas Bratza,
Mr S.
Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović,
Mr J.
Šikuta,
Mrs P. Hirvelä, judges,
and Mrs F.
Aracı, Deputy Section Registrar,
Having
deliberated in private on 11 September 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 42341/04) 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 Manmohan Bhandari (“the applicant”),
on 18 November 2004. The United Kingdom Government
(“the Government”) were represented by their Agent, Mr J
Grainger, of the Foreign and Commonwealth Office.
- On
13 December 2005 the
Court declared the application partly inadmissible and decided to
communicate the complaint concerning the length of the proceedings.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1934 and lives in the Isle of Man. He grew
raspberries there and had a lucrative contract with the shop Marks &
Spencers, but lost it in 1990 when the local environmental health
officer let it be known to the shop that the applicant was packing
raspberries in his kitchen. The applicant and his wife sued the
Department of Local Government and the Environment ('DOLGE') for
mis-statement and were awarded over GBP 16,000 in damages by the Manx
High Court on 1 April 1993. The applicant did not consider that this
was enough, and, wishing to appeal, instructed a new (Manx) advocate,
a Mr Carter, then a partner in a firm of advocates called Carter
Jones McDonald ('CJM').
Mr
Carter advised that there was merit in an appeal, and applied for
legal aid on his client's behalf in April 1993: this application was
rejected on 25 May 1993. The applicant's Petition of Appeal from
the first instance judgment was rejected the next day because it had
been filed two days late. Mr Carter advised (via letter and at a
meeting) that it would not be unduly difficult to apply for an
extension of time in which to lodge the appeal, but that, in the
circumstances, the best course of action was for the applicant to cut
his losses and to accept an offer put forward by DOLGE. The applicant
accepted this advice and, on 17 June 1993, DOLGE's offer of GBP
20,000.
- CJM
issued proceedings against the applicant for payment of their fees on
7 December 1993. An advocate instructed by the applicant to defend
the claim failed to file a Defence in the prescribed period, and
judgment was entered for CJM on 5 January 1994. After taxation of
CJM's costs, judgment was issued on 2 March 1995 for a total of GBP
929.80. Mr Carter then applied for execution of the judgment and on 9
October 1995, the applicant's property was placed under arrest by the
Coroner. The applicant appealed on 30 October 1995 and on 7 November
1995 Mr Carter wrote to the Coroner and the applicant requesting that
no further steps be taken in respect of the enforcement of the
execution against the applicant until specifically instructed. It
appears that the execution remained suspended until the judgment of
17 November 2003 detailed below.
- After
a delay occasioned by their difficulty in obtaining legal aid, the
applicant and his wife brought proceedings on 26 March 1996 against
CJM in negligence, claiming that CJM's actions and omissions in
April-June 1993 had deprived them of the opportunity to pursue their
appeal against the first instance decision in their case against
DOLGE. These proceedings are referred to hereafter as “the CJM
proceedings.” In them, the applicant and his wife were
represented throughout by leading Counsel from England, who had been
granted a special temporary licence as a Manx advocate. The
proceedings were heard by Acting Deemster Hall, succeeded by Acting
Deemster Newey.
- The
summons issued on 26 March 1996 was not served on CJM until 20 March
1998, the time for service of the summons having been extended by the
High Court on 27 February 1997. After the applicant filed a motion
for judgment in default of defence on 22 June 1998, it appears a
first defence was served out of time on 7 July 1998. A second defence
was served on 16 September 1998. After the service of this second
defence, a motion filed by the applicant for judgment in default was
dismissed by consent on 17 September 1998. On 25 January 1999 the
defendants filed a motion for a split trial between liability and
quantum issues, which was dismissed on 25 October 2000. It appears
that there had been no correspondence between the parties and the
High Court between 27 July 1999 and 6 January 2000, leading the High
Court to write to the defendants on 26 January 2000 indicating, inter
alia, that Acting Deemster Hall “was very anxious to
progress the matter”. After the dismissal of the defendant's
motion for a split trial on 25 October 2000, it appears it was
incumbent on the applicant to apply to have the case set down for
trial within 28 days of this date. No application was made. On 12
January 2001, the High Court wrote to the applicant's solicitors
requesting that they make the necessary application as soon as
possible. On 19 January 2001, the applicant's solicitors replied,
apologising for the delay in their application. On 22 January
2001, the High Court replied with instructions from the Acting
Deemster that the case be set down for trial within 28 days. Both
parties responded expressing concern at this proposal.
It
further appears that throughout 2001 the parties each filed a number
of motions, the defendants requesting a stay in the proceedings and
each seeking leave to amend the statement of case, the defence and
reply. Further such motions were sought throughout 2002 and January
and February 2003. On 31 October 2002 and 12 February 2003, the High
Court made orders setting further directions for the proceedings.
Further orders were agreed by consent between the parties on 21 June
2001, 1 February 2002 and 17 July 2002, in each instance agreeing to
a revised timetable and date for trial. On 20 December 2002 the
applicant issued a motion for additional time to serve a further
expert report to which the defendants responded with a motion that
the action be struck out for non-compliance with orders of the High
Court. In order to hear the motions, the High Court vacated the
scheduled trial date. They were heard on 12 February 2003 with the
defendant's motion being dismissed, the applicant being given leave
to serve the expert report and further directions being given to the
parties.
- The
CJM proceedings did not therefore come to trial before Acting
Deemster Newey until 21 March 2003, at which point CJM essentially
conceded liability and limited themselves to contesting quantum. By a
judgment dated 17 November 2003: (1) the judgments obtained by CJM in
1995 were set aside (by consent) and these earlier proceedings
dismissed; and (2) the applicant and his wife were awarded the sum of
GBP 10,780.93 plus interest of GBP 8,567.13.
- The
applicant and his wife appealed against the quantum of the award;
their appeal was dismissed on 25 May 2004. In a detailed 37 page
judgment, the High Court of Justice of the Isle of Man (Staff
Government Division) considered and dismissed each head of their
challenge to the conclusions of the first instance judge. It seems
that the applicant's Counsel was directed by the lead judge at the
end of the hearing that his interest was now at end.
- The
applicant wished to apply to the Privy Council for special leave to
appeal directly to the Council but it appears that after failing to
obtain such leave as a “poor person” and failing to
obtain legal aid from the Manx authorities, he did not do so.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Rule
6 of Order 2 of the Rules of the High Court of Justice of the Isle of
Man provides that for the purpose of service, a summons is valid in
the first instance for twelve months beginning with the date of its
issue by the Chief Registrar. Where a summons has not been served on
a defendant, the Court may by order extend the validity of the
summons for a period, not exceeding twelve months at any one time.
Rule
1 of Order 22 provides that the Court may, at any stage of the
proceedings, allow either party to alter or amend his pleadings, in
such manner and on such terms as may be just, and all such amendments
shall be made as may be necessary for the purpose of determining the
real questions in controversy between the parties.
Rule
7 of Order 47 provides that a Court shall have power to enlarge or
abridge the time appointed by the Rules, or fixed by any order
enlarging time, for doing any act or taking any proceeding, upon such
terms (if any) as the justice of the case may require. Any such
enlargement may be ordered although the application for the same is
not made until after the expiration of the time appointed or allowed.
Rule
8 of the same Order provides that the time for delivering, amending,
or filing any pleading, answer, or other document may be enlarged by
consent in writing, without application to the Court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings was
incompatible with the “reasonable time” requirement of
Article 6 § 1 of the Convention. That provision, 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...”
- He
maintained that since the execution of the judgment given against him
on 2 March 1995 remained suspended until it was set aside in the
judgment of 17 November 2003, the first set of proceedings could not
be said to have been concluded in 1995. He further argued that since
the defendant in the second set of proceedings (the CJM proceedings)
had stated that the invoices which had been the subject of the first
set of proceedings should never have been raised, the period under
consideration ran from the start of the first set of proceedings and
did not end until the conclusion of the second set of proceedings.
- The
applicant argued that while the proceedings were not complex there
were some legal issues of an exceptional nature. However, there were
significant delays in the course of the proceedings. In particular,
he referred to a delay of six months in waiting for a defence to his
original claim to be lodged. It took twenty-two months to hear the
defendant's motion for a split trial and thirteen months to obtain
legal aid to commission expert reports. Finally, three months were
lost while the defendant refused to accept service of one of these
reports. He did not accept that certain of the delays in the course
of the proceedings were attributable to him and argued that all
delays were attributable to his solicitors, for whom he could not be
held responsible, the defendants and the competent authorities. As to
what was at stake for him, the applicant argued that as a result of
the negligence of CJM, he and his family had suffered due to a
shortage of funds from 1993 until judgment was given in 2003.
- The
Government maintained that the proceedings started on 26 March
1996 (when the applicant's summons was issued) and ended on 25 May
2004 (when the High Court of Justice of the Isle of Man (Staff
Government Division) handed down its judgment). The proceedings which
began on 7 December 1993 were separate in that they involved
different parties and ended two years before the summons was issued
in the applicant's claim against CJM. They recognised that the
factual background to both sets of proceedings was the same and that
the applicant could have raised issues of negligence in the first set
of proceedings by way of a counterclaim. However, he did not do so
and, as a result, separate and distinct proceedings were necessary in
order to raise these issues.
- The
Government argued that there was no breach of the reasonable time
requirement of Article 6 § 1. The Government did not submit that
the proceedings were particularly complex but argued that they could
not be viewed as straightforward: the applicant's damages claims
required a ten-day trial period due to extensive and expert evidence
adduced by the applicant and the proceedings had resulted in a
lengthy judgment and an appeal. In addition, a substantial proportion
of the delay in the proceedings was caused by the applicant himself.
In particular, he was responsible for an initial two year delay in
serving the summons. He had pursued a motion for judgment in default
even after the defence had been served and failed to serve his list
of documents until five months after it was due to be served. The
applicant's solicitors had been expected to set down the case for
trial within 28 days of 25 October 2000 but had not done so by 19
January 2001. The applicant had failed to provide adequate disclosure
of documents in 2001 and failed to comply with the revised timetable
then given by the court. Finally the applicant was responsible for
further delays while he produced a further expert's report, leading
to the postponement of the trial for six weeks.
The
Government also submitted that additional delays were attributable to
the defendants in the proceedings, in particular pursuing a motion
for the trial of the action to be split between liability and quantum
issues, which in the Government's view was misconceived. While there
had been a greater than usual delay on the part of the High Court in
listing an interlocutory hearing of this motion, this delay was
relatively small compared with the delays caused by the applicant and
the defendants and in all other aspects the High Court had
facilitated the proceedings and engaged in active case management.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- Since
the period to be taken into account is a matter of dispute between
the parties, the Court must first determine this before examining the
merits of the case. When determining the period to be taken into
account, the Court has regard to its case-law according to which in
civil proceedings, the “reasonable time” begins at the
moment the action was instituted before the tribunal and extends
right up to the decision which disposes of the dispute
('contestation') (for example, Erkner and Hofauer v.
Austria, judgment of 23 April 1987, Series A no. 117, §§
64 and 65).
In respect of separate sets of proceedings, for the purposes of
calculating the period to be taken into consideration, the Court has
only considered such proceedings in toto where the proceedings
are indissociable and concern essentially the same dispute
('contestation'); for example, where proceedings on the merits
of a claim are followed by enforcement proceedings (Di Pede v.
Italy, judgment of 26 September 1996, Reports of Judgments and
Decisions 1996 IV, §§ 22-24; Hornsby v.
Greece, judgment of 19 March 1997, Reports 1997 II, §
40) or where compensation proceedings follow proceedings concerning
expropriation (Kukkola v. Finland, no. 26890/95,
§ 41, 15 November 2005; Saarenpään Loma Ky v.
Finland, no. 54508/00, § 28, 13 February
2007).
In
the present case, the Court does not discern any such link between
the first and second set of proceedings. While both sets of
proceedings arose from CJM's representation of the applicant in his
case against DOLGE, the dispute was not the same in each set of
proceedings: the first set concerned money owed by the applicant to
CJM, the second set concerned the applicant's claim that CJM had been
negligent in the case against DOLGE. Nor could the applicant's claim
against CJM in the second set of proceedings be said to follow
automatically from any finding in the first set of proceedings since
the decision to start the second set of proceedings was a matter
entirely for the applicant and the first set of proceedings had
resulted in a judgment against him. The applicant does not complain
separately about the length of the first set of proceedings.
Finally,
the Court notes the applicant's argument that the first set of
proceedings could be said to have lasted until 17 November 2003 on
the ground that the execution of the judgment of 2 March 1995
remained suspended until the judgment of 17 November 2003.
The
Court concludes therefore that the period to be taken into
consideration began on 26 March 1996 (when the applicant and his wife
brought proceedings against CJM) and ended on 25 May 2004 (when the
High Court of Justice of the Isle of Man (Staff Government Division)
dismissed the applicant's appeal). It thus lasted 8 years and 2
months for two levels of jurisdiction.
- 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; Philis v. Greece (no. 2), judgment of
27 June 1997, Reports 1997-IV, p. 1083, § 35).
- The
Court agrees with the parties that the proceedings were not legally
complex. While it also agrees that the proceedings were not entirely
straightforward, notwithstanding the expert evidence adduced by the
applicant, the Court is not persuaded that they were factually or
administratively difficult. By the time the proceedings came to trial
CJM adduced no evidence at all and had in substance admitted
liability.
- The
Court recognises that while what was at stake for the applicant had
some financial importance, its significance cannot be said to have
been exceptional. This is reflected in the decision of the trial
judge to award substantially less in damages than the applicant and
his wife had claimed, a decision confirmed on appeal by the High
Court of Justice of the Isle of Man (Staff Government Division).
However, the damages awarded, which included interest, amounted to
over GBP 19,000 and were not negligible. Furthermore, in light of the
difficulties encountered in the previous proceedings, the CJM
proceedings had taken on an added significance for the applicant. In
this connection the Court also notes the conclusion of the trial
judge that the applicant and his wife were victims of negligence on
the part of DOLGE and Mr Carter, a conclusion that led him to state
his 'enormous sympathy' for them.
- It
is true that the proceedings took place before two instances and
that, as the Government pointed out in their observations, some delay
was caused by the applicant's attempts to adduce extensive expert
evidence and his failure to abide by the time limits set down by the
Court, particularly after the High Court had set down a revised
timetable in an effort to expedite proceedings. The Court also finds
that the applicant bears primary responsibility for the initial delay
in the proceedings due to the failure promptly to serve the summons
on the defendants, though it also notes that time for service was
extended by the High Court on 27 February 2007.
- Nonetheless,
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 it took one year and ten
months for the defendant's motion for a split trial to be heard and
dismissed. In this respect it is also significant that during this
period the only other developments in the proceedings were the
service of the applicant's list of documents and the letter from the
High Court of 26 January 2000. The Court also notes the fact that
after the dismissal of this motion, the greater part of 2001 and 2002
was taken up by successive amendments and re-amendments to the
statement of case, the defence and reply. The Court recognises that
some responsibility for these delays must lie with the parties and
that they agreed to a series of consent orders revising the timetable
for the proceedings. However, this does not absolve the State from
the requirement to deal with cases in a reasonable time. The Court
recalls that the State remains responsible for the efficiency of its
system (Guincho v. Portugal, judgment of 10 July 1984, Series
A no. 81, § 38) and 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 (see Price and Lowe
v. the United Kingdom, nos. 43185/98 and 43186/98, § 23,
29 July 2003, together with further references therein). In this
respect, the Court notes that it does not appear that the High Court
took active steps to expedite the proceedings until its orders of 31
October 2002 and 12 February 2003. The Court therefore considers that
the delays in the CJM proceedings derived, to a large extent, from
the failure by the State to take adequate steps to advance the
proceedings and, more generally, to organise its system in such a way
as to meet its Convention obligations (see also Mitchell and
Holloway v. the United Kingdom, no. 44808/98, § 54,
17 December 2002).
- 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”.
There
has accordingly been a breach of Article 6 § 1.
II 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 left the matter of pecuniary and non-pecuniary damage to
the Court's discretion but stated that he and his family had suffered
considerably due to shortage of funds from 1993 to 2003.
- The
Government contested the claim. They argued that even if the delays
attributable to the parties to the proceedings, and in particular the
applicant, were not sufficient to prevent a breach of Article 6, they
were nevertheless highly relevant in assessing the question of
compensation.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged by the applicant (the negligence of
CJM) and consequently, there is no justification for making any award
under this head. On the other hand, the Court accepts that the
applicant has certainly suffered non-pecuniary damage, such as
distress and frustration resulting from the excessive length of the
proceedings, which is not sufficiently made good by the finding of a
violation of the Convention. Ruling on an equitable basis, it awards
him EUR 7,000.
B. Costs and expenses
- The
applicant also claimed GBP 1279 for the costs and expenses incurred
before the domestic courts and GBP 100 for those incurred before the
Court.
- The
Government did not contest the applicant's claim for costs and
expenses before the Court but maintained that the claim of GBP 1279
for costs and expenses incurred before the domestic courts should be
disregarded. They argued that costs from domestic proceedings were
only recoverable if they were undertaken for the purpose of
vindicating the applicant's rights whereas the amount claimed by the
applicant related to the proceedings which were the subject of the
application.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum (see, for example, Sahin v. Germany [GC],
no. 30943/96, § 105, ECHR 2003-VIII). The Court
considers that the sum claimed in respect of expenses incurred before
the Court should be awarded in full. As to the sum claimed in respect
of costs and expenses incurred before the domestic courts, the Court
finds this was not concerned with seeking redress for the alleged
violation of the Convention (King v. the United Kingdom,
no. 13881/02, § 52, 16 November 2004) and accordingly
makes no award in respect of this claim.
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 remainder of the application
concerning the excessive length of the proceedings admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- 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 7,000
(seven thousand euros) in respect of non-pecuniary damage, to be
converted into pounds sterling at the rate applicable on the date of
settlement;
(b) 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 150 (one
hundred and fifty euros) in respect of expenses, to be converted into
pounds sterling at the rate applicable on the date of settlement; and
(c) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 2 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Josep Casadevall
Deputy
Registrar President
