Feb 22 2010

The Court of Session meets article 6 of the ECHR

In what seems to be an odd coincidence, there were two apparently unrelated developments this month concerning the systemic problem of delay in civil appeals in the Inner House: one in Edinburgh, one in Strasbourg where the European Court of Human Rights considered the practice and procedure of the Court of Session.

First, on 4 February, the Court of Session enacted a major change to the rules governing most Inner House business1. The Act of Sederunt (Rules of the Court of Session Amendment No. 2) (Causes in the Inner House) 2010, SSI 2010/30, comes into force on 5th April 2010 2 and replaces Chapters 38, 39, and 40 of the Rules of Court. This substantially follows the recommendations of Lord Penrose’s ‘Review of Inner House Business3, which adopted the view of a researcher, Dr Wadia, that ‘There is a working culture within the Inner House which appears to be unmanaged and unmanageable in its current form 4.’ This report was endorsed by the Civil Courts Review; chapter 5, paragraphs 50 to 52; that summarised the proposals as follows:

  • a single Inner House judge should deal with procedural business;
  • cases should not be allocated until they are ready for a hearing;
  • there should be a degree of judicial continuity in managing appeals, and particularly those involving party litigants;
  • control over the progress of an appeal should be vested in the court rather than parties;
  • the court should fix a timetable to which parties would be required to adhere; and
  • late amendments and late lodgings of documents should be penalised to encourage frontloading of preparation.
  • Then, on 9 February, the European Court of Human Rights issued its decision in the case of Anderson v United Kingdom, holding laconically that the absence of active case management in the Inner House had the consequence that there had been a breach of the Article 6 (1) guarantee ‘to a fair and public hearing within a reasonable time’ and awarding the applicant €1500 as ‘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…’ .

    The background to this case was a long-running attempt by the applicant, who although an advocate was acting as a party litigant5, to argue that the City of Edinburgh Council had conspired with one of his neighbours to send him ‘fraudulent, illegal, invalid and void‘ invoices for property repairs; this claim was first tossed out in a sheriff court action, then in the Outer House in a fresh action, then by the Inner House in a reclaiming motion in December 2003. He applied to the European Court of Human Rights in May 2004. Ironically, the case then took almost six years to get to a determination.

    This is a decision which visibly suffers from a lack of coherent argument for Her Majesty’s Government, which chose to be represented simply by an ‘assistant legal adviser’ (that is to say, a junior English in-house lawyer) from the Foreign and Commonwealth Office; whether Scotland was seen by Whitehall as ‘Foreign’ or as ‘Commonwealth’ may be moot6. The infelicities of language, such as the reference in paragraph 6 to the applicant having ‘obtained a summons‘, are unimportant. More concerning is the apparent absence of understanding on the part of anyone present of the practical realities of litigation shown by such suggestions as, commenting on the history narrated in paragraph 9 which seems to have been entirely the applicant’s fault, this:

    in the Court’s view, it would not have been necessary for a two-day hearing [on the Summar Roll] 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 date7.

    Be that as it may, this relatively short decision, lacking discussion or full reference to earlier caselaw on the ‘reasonable time’ guarantee, is striking because the facts of the case are so ordinary. If this applicant was entitled to an award, so are thousands more. As presented to the ECHR, the claim seems to have been that from beginning to end this hopeless action, including two appeals, took almost seven years. The ECHR, however, fastened on a particular period which it summarised as follows (the applicant having been the pursuer):

    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 this, the Court commented:

    … 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, 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…

    This passage is not very clear: were there other ‘periods of inactivity‘ for which ‘no satisfactory explanation‘ was given by the Assistant Legal Adviser from the Foreign and Commonwealth Office? These phrases were simply cut and pasted from paragraph 22 of this very different case, and it may be that they mean nothing; certainly no other such periods were expressly identified. The Court’s finding seems ultimately to be based on the failure by the Court of Session proactively to manage the appeal between 4 November 1998, when it could have been sent to a hearing although nobody asked, and 5 November 1999, when the applicant himself sought to amend his pleadings. This is hardly an extraordinary delay; it is far less than in other comparable British civil cases in which unreasonable delay has been found by the Court, such as Bhandari, or Mitchell and Holloway, or Blake. If it is such as to put the Court of Session in breach of Article 6, and thus of section 6 of the Human Rights Act, many more litigants in Scottish courts should be considering their remedies. One, suggested by Her Majesty’s Government8, would be to ‘enrol a motion, making reference to Article 6 § 1 of the Convention, to have the case expedited‘. I look forward to the first hearing on such a motion, and wonder to whom it will be intimated.

    1. A major exception is statutory appeals against tribunals under Rule 41.19; these are (at least superficially) unaffected. [back]
    2. For the transitional provisions, see paragraph 8. [back]
    3. The Review report is appendix 2 to the Civil Courts Review; at volume 2 page 245. [back]
    4. Volume 2, page 260. [back]
    5. For another of his litigations where he sought to appear as not-quite-such, see this case, which ended with this decision only last week. [back]
    6. This is in recent years a depressingly common approach to ECHR litigation which perhaps indicates how seriously HMG takes the Court. [back]
    7. Paragraph 27. [back]
    8. Paragraph 15. [back]
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