Court of Session fails to provide fair trial: European Court of Human Rights
In a judgment published on 9 February 2010 the European Court of Human Rights has ruled that the absence of court case management in Court of Session proceedings failed to meet the fair trial requirements of Article 6 of the European Convention on Human Rights.
Our Strasbourg observer from Dundee Law School, Dan Carr, has kindly provided the following summary of the decision:
Richard Anderson, advocate, brought a claim against the United Kingdom under Article 34 ECHR in respect of proceedings in Scotland that began in 1994. Although Mr Anderson lived in Glasgow, he owned a tenement flat in Edinburgh which was the subject of a statutory repairs order by Edinburgh City Council. Costs of the repair were apportioned between the proprietors. Subsequently, a fire broke out which damaged Mr Anderson’s property and the commercial property below, the owners of which instructed repair work. Mr Anderson claimed that both sets of repairs constituted a trespass and refused to pay his contribution of the costs.
The Council then raised a Sheriff Court action to recover the contribution, and Mr Anderson counter-claimed that the Council’s repairs had caused damage and sought referral of the case to the Court of Session. On 14 April 1994 the Sheriff found for the Council, and refused to refer the matter to Court of Session; an appeal to the Sheriff Principal also failed. A further claim brought by Mr Anderson in the Sheriff Court was rejected on 17 February 1999.
In addition to the Sheriff Court action, Mr Anderson also raised proceedings in the Court of Session on 26 March 1997, the defenders being served in April and May respectively. Mr Anderson was informed by the Court that because part of the Court of Session claim challenged an order from the Sheriff Court he had to intimate a copy of the closed record to the sheriff clerk. In February 1998 he was given leave to do so. Later, Mr Anderson applied for disclosure of documents and transfer of the record of Sheriff Court proceedings to the Court of Session, which was granted by interlocutor on 22 September 1998.
There then followed an appeal against the interlocutor to the Inner House which, after some procedural twists and turns, allowed the defender’s reclaiming motion, whereupon the case was remitted to the Outer House again. In the Outer House, after some more motions for disclosure, the case was dismissed on 4 September 2002 as lacking specification; a further appeal to the Inner House was dismissed on the ground of lack of specification on 18 December 2003.
The last twist in the saga was Mr Anderson’s attempt to raise an action against the solicitors acting for the Council in the Sheriff Court. Mr Anderson was unable to obtain a solicitor to sign the summons, and an application to proceed in the absence of a signature was refused by the Court of Session. Finally, complaints made to the Scottish Legal Services Ombudsman against the solicitors and advocates acting for the Council were rejected.
The thrust of Mr Anderson’s application to the ECtHR was that delays in the Court of Session constituted a breach of Article 6 ECHR, more particularly the well known requirement for a determination within a "reasonable time". Mr Anderson’s claim before the ECHR was for £85,000+. The UK Government argued that Mr Anderson had failed to exhaust domestic remedies, as required by Article 35 ECHR, by failing to use court procedures properly or take "the initiative".
The ECtHR reiterated that Article 35 ECHR entailed exhaustion of meaningful remedies—"no recourse need be had to remedies which are inadequate or ineffective" [para 17]. However, the ECtHR also recounted its decision in Price and Lowe v UK, and Crowther v UK, which stipulated that "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…" [para 18]. Thus, the UK’s objection to the admissibility of Mr Anderson’s case was dismissed.
The arguments as to the merits of Mr Anderson’s claim, that Article 6 ECHR had been breached, were straightforward. The UK Government argued the case was complex and that progress of a case depended upon the parties—Mr Anderson had been remiss in taking procedural steps, a failing compounded, it was argued, by the fact that the applicant was a practising advocate himself. Mr Anderson argued that he had not been remiss in that alleged failures of procedural intervention would not have benefited him. The real issue was the failure of the Court of Session to control proceedings in the absence of a case management system (subsequently introduced after his case).
The ECtHR rejected the complexity argument on the part of the Government—there were no novel points of law, and in each appeal to the Inner House judgment was given, when it eventually came, in short order [para 25]. The case therefore turned on the role of Mr Anderson. The ECtHR held that while some aspects of Mr Anderson’s approach had contributed to the delay, he was not to be held fully responsible for the delay. There were "periods of inactivity for which no satisfactory explanation has been given", especially between 1998 and 2001 [para 28]. The ECtHR accepted that the parties may have been engaged in discussions towards a settlement, but this did not "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" [para 28].
This last utterance is particularly portentous, albeit much of the concern here might have been addressed by case management procedures.
Accordingly, there had been a violation of Article 6 because Mr Anderson’s civil rights or obligations were not dealt with within a reasonable time. In terms of remedy under Article 41 ECHR, the ECtHR held that Mr Anderson’s claims for pecuniary damage and emotional distress were not relevant for want of a causal link. There was only a violation with respect to the length of proceedings in the Court of Session, and therefore the Court awarded EUR 1,500 on a (traditionally somewhat opaque) equitable basis.
Other grounds of complaint raised by Mr Anderson were rejected: (1) refusal of the Court of Session to proceed in absence of a signature for the summons (time barred) [para 32]; (2) the Sheriff and Sheriff Principal refused to hold oral hearings on preliminary matters (this was not an absolute requirement) [para 33]; (3) the Court of Session ruled on the basis of written and preliminary pleadings (unsubstantiated), and failed to take proper account of evidence and pleadings (this was a "fourth instance matter"—essentially, "[l]ocal institutions and tribunals, especially administrative authorities, are regarded as best placed to assess issues of the kind requiring first-hand knowledge of evidence and of national peculiarities" (Y Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (2001) 235) [para 33]; (4) the courts were not in fact independent and impartial due to the "corruption and contempt of court of the legal representatives before them" (wholly unsubstantiated and manifestly ill-unfounded) [para 34]; (5) an Article 8 (privacy) claim (not relied upon in domestic proceedings) [para 35].