CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 novembre 1995

.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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 24433/94                       by E. D. C.                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 29 November 1995, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  M.P. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 22 March 1994 by E. D. C. against the United Kingdom and registered on 20 June 1994 under file No. 24433/94;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      14 June 1995 and the observations in reply submitted by the      applicant by letter dated 8 August 1995 and the further      observations submitted by the Government by letter dated      18 October 1995;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a British citizen, born in 1924 and resident in London. The facts as submitted by the parties may be summarised as follows.        On 14 January 1988 the applicant, who had earned his living as a company director, agreed to become a non-executive director of Homes Assured Corporation plc ("HAC"). In 1989 he resigned this directorship, on 29 August 1989 HAC ceased to trade and on 30 August 1989 HAC went into voluntary liquidation.        In September 1989 the Department of Trade and Industry ("DTI") referred the case to the Serious Fraud Office. Criminal investigations were commenced by that office and the police, which investigations continued up to the relevant criminal trial itself.        On 25 October 1989 HAC and two subsidiary companies were compulsorily wound up and the Official Receiver (who is an officer of the court) was appointed liquidator.        On 4 January 1990 and 20 July 1990 the applicant was interviewed, in the presence of his solicitor, by a senior examiner of the Official Receiver's Office.        The Official Receiver's draft report was worked on by the deputy Official Receiver and three members of staff full time from October 1990 to January 1991 and by one person from January 1991 until it was delivered, together with 36 files of supporting documents, to the Treasury Solicitor (who provides legal assistance and advice to, inter alia, the Official Receiver) on 27 March 1991.        In April 1991, three ex-directors of the HAC group were charged with criminal offences including fraudulent trading.        Counsel were instructed to advise the Treasury Solicitor on 31 July 1991. On 1 August 1991 the Secretary of State decided to issue summonses against seven ex-directors of the HAC group, including the applicant, for orders pursuant to the Company Directors Disqualification Act 1986 ("CDDA") to disqualify them from acting as directors for a potential period of fifteen years. On 7 August 1991 the Official Receiver gave statutory notice to each of the seven intended respondents of the Official Receiver's intention to apply for disqualification orders.        Counsel and the Treasury Solicitor spent August 1991 working the Official Receiver's draft report into a form of report which could be filed in court.        During August 1991 the applicant was specifically invited to make, and made, representations as to why it would not be expedient in the public interest for a disqualification order to be made against him. During this time he requested, but was refused, particulars of the complaints against him and a meeting with the Official Receiver.        On 21 August 1991, the applicant resigned as Chairman of Lonhro plc. The applicant felt that his resignation would be in the best interests of the shareholders of Lonhro plc in view of the intended prosecution which put in question his competence as a director.        On 28 August 1991 the Official Receiver signed his report and then issued three disqualification summonses against the applicant and six others (three of whom were already defendants in the criminal proceedings). The summonses were issued just within the two-year limitation period set down by the CDDA. (The applicant's co-respondents are hereinafter individually referred to as RI, R3, R4, R5, R6 and R7).        In September 1991 the Official Receiver's report was served on the applicant and his co-respondents. The report so filed is 147 pages long and the supporting evidence was reduced to nine lever arch files, which evidence was collated from 780 boxes of documentation. The events in relation to the HAC group, to which this report related, allegedly took place between November 1988 and August 1989. All respondents were requested to file their responses by affidavits in reply.        In early November 1991 R1 and R5 applied for a stay of all civil proceedings pending the outcome of the criminal proceedings (against R1, R4 and R5).        In the course of the civil proceedings there were eight directions hearings before the Registrar of the High Court, four before a single judge of that court and a hearing before the Clerk of the Lists to fix a trial date. The applicant was neither present nor represented at any of those hearings apart from the first. He was kept informed by the Treasury Solicitor by letter, of forthcoming directions hearings and of the various applications which were to be made. Those occasions where the applicant communicated his views to the Treasury Solicitor as regards such applications are noted below.        On 14 November 1991 (first directions hearing) the Registrar of the High Court consolidated the three summonses and refused the application for a stay of all civil proceedings pending the outcome of the criminal proceedings. However, he ordered that the trial in the civil proceedings would not take place until after the criminal trial and that the respondents had until 14 May 1992 to file affidavits in reply. The applicant's counsel did not actively resist or support the application of R1 and R5.        On 14 May 1992 the applicant's solicitor served notice that the applicant was no longer represented.        The Official Receiver subsequently received requests from the applicant, R1 and R5 for an extension of time for delivery of affidavits in reply. The Official Receiver indicated that he would not oppose an order to the effect that in default of receiving the relevant affidavits by 24 July 1992 those respondents would be debarred from adducing further evidence in the proceedings.        On 4 June 1992 (second directions hearing) the Registrar (pursuant to an application by the Official Receiver) ordered delivery of the respondents' affidavits by 28 September 1992 and adjourned matters to 19 October 1992. R3 was the only one to file by the deadline fixed, though the applicant filed shortly thereafter on 15 October 1992. This is the only affidavit filed by the applicant in these proceedings.        On 19 October 1992 (third directions hearing) the Official Receiver applied for an order requiring delivery of the respondents' affidavits by 10 November 1992 (failing which, the respondent in question would be barred from adducing further evidence). However, the Registrar ordered the remaining respondents to serve the affidavits in reply by 30 November 1992, in default of which they would be debarred from filing any further evidence.        On 26 and 27 November 1992 R4 and R5 issued summonses requesting a stay in the civil proceedings pending the outcome of the criminal proceedings. Since most of the respondents (excluding the applicant and R3) had not filed their replies, the Official Receiver made another application as regards the timetable for submission of affidavits. The applicant indicated that the timetable suggested by the Official Receiver was not realistic.        On 7 December 1992 (fourth directions hearing) the Registrar ordered R1-R7 to serve their affidavits in reply on each other and to respond to each others' affidavits by 15 February 1993. The summonses issued by R4 and R5 were adjourned to a judge and the matter stood adjourned until 22 February 1993.         On 11 December 1992 R5 appealed the Registrar's decision of 7 December 1992. Subsequently, R1 also appealed.        Since certain respondents had not complied with the order of 7 December 1992, the Official Receiver applied for further directions extending the time limit for filing affidavits to 1 March 1993.        On 22 February 1993 (fifth directions hearing) the Registrar adjourned the various outstanding applications, including those summonses issued in November 1992 by R4 and R5, to a judge of the High Court.        On 2 April 1993 a single judge of the High Court allowed R1 an extension until after the conclusion of his criminal trial to file his affidavit in reply to that of the Official Receiver. His co-respondents were also given until after the conclusion of the criminal trial to file further evidence in response to a specific matter of evidence. R5 was to file his affidavit in response to his co-respondents' affidavits by 30 April 1993.        On 19 April 1993 the criminal trial of the R1, R4 and R5 commenced. On 27 August 1993 R1 and R5 were convicted. The jury was unable to reach a verdict in relation to R4 and he was formally acquitted. (In all there were over 2000 pages of witness statements and over 9000 pages of exhibits. 303 witness statements were served and approximately 50 witnesses were called to give oral evidence. The applicant was not called to give evidence).        On 3 September 1993 the applicant requested a copy of the transcript of the criminal trial from the Treasury Solicitor as he required a copy in order to conduct his defence.      On 21 September 1993 R1 and R5 appealed to the Court of Appeal. On 1 October 1993 R1 and R5 were sentenced to terms of imprisonment and were disqualified from acting as directors for ten years.        The relevant co-respondents of the applicant (excluding R1 and R3) delivered their affidavits in reply to the Official Receiver by December 1993.        On 7 February 1994 (sixth directions hearing) the Registrar ordered that the Official Receiver file his affidavit, in response to the respondents' affidavits in reply, by 17 May 1994 and the matter was adjourned until 13 June 1994.        On 3 March 1994 the applicant was offered the opportunity to examine relevant extracts from the transcripts of the criminal proceedings in the Treasury Solicitor's office. To date the applicant has not availed himself of this opportunity.        On 23-27 May 1994 the Court of Appeal heard the appeals of R1 and R5 in the criminal proceedings but ordered another appeal hearing.        On 13 June 1994 (seventh directions hearing) the Registrar agreed to the Official Receiver's request for an extension of time until 20 June 1994 for the delivery of the Official Receiver's affidavit in reply and adjourned the matter until 11 July 1994. The applicant indicated to the Treasury Solicitor that he had been placed in such a position of intolerable jeopardy due to delay that a few more days was of little import. The Official Receiver's affidavit was served on 23 June 1994.        On 11 July 1994 (eighth directions hearing) it was ordered that R1 should file his evidence by 8 August 1994 (in default of which he would be debarred from filing further evidence), that the remaining respondents could file affidavits in response to R1 by 19 September 1994 and that the Official Receiver was to file evidence in response to all of those affidavits by 31 October 1994. The matter was adjourned to a judge for trial at a time to be fixed.        On 1 August 1994 the appeal in the criminal proceedings recommenced and on 5 August 1994 the Court of Appeal dismissed R1's appeal and allowed, in part, R5's appeal. The disqualification orders remained against R1 and R5.        On 8 August 1994 R1 filed his affidavit in response to that of the Official Receiver.        On 12 October 1994 the Clerk of the Lists fixed the trial date in the civil proceedings for 11 January 1996 on the basis that the trial was scheduled to last eight to ten weeks. The applicant had indicated to the Treasury Solicitor that he was anxious that the trial proceed as quickly as possible so that he could have an opportunity to clear his name. At the same time, the applicant expressed his sympathy for those co-respondents who had had to endure civil and criminal proceedings at the same time.        On 1 March 1995 R1 and R5's application in the criminal proceedings for leave to appeal to the House of Lords was refused.        Since August 1991 the applicant's legal representatives (and after May 1992, the applicant) corresponded with the Treasury Solicitor challenging the issuance of proceedings which, by their nature, had a detrimental effect on the applicant's livelihood prior to the applicant having an opportunity to respond to the allegations in private. He also requested, inter alia, that the civil proceedings against him be abandoned on a number of grounds including the delay and the applicant's age and ill-health or, in the alternative, that the civil proceedings be expedited so that the applicant could clear his name in the near future in order to limit the effect on him and his wife of the ongoing uncertainty. Having considered the matters raised by the applicant on a number of occasions the Official Receiver and the Treasury Solicitor considered it expedient in the public interest to continue with the proceedings against the applicant.        Furthermore, on 12 March 1993 the applicant was adjudicated bankrupt pursuant to his solicitor's petition on the basis of unpaid legal fees. The applicant claims that he was unable to pay his legal fees because, due to the publicity surrounding the proceedings and the nature of those proceedings, he was unable to carry out his profession as a company director. As a result of his bankruptcy the applicant is automatically disqualified from acting as a director until his discharge from bankruptcy unless he obtains the consent of the court under section 11 of the CDDA.   B.    Relevant domestic law and practice        Striking out proceedings for want of prosecution        Order 28 Rule 19 of the Rules of the Superior Court provides as follows:        "If the Plaintiff in a cause or matter begun by originating      summons makes default in complying with any order or direction      of the court as to the conduct of proceedings, or if the court      is satisfied that the Plaintiff in a cause or matter so begun is      not prosecuting the proceedings with due dispatch, the court may      order the cause or matter to be dismissed or make such other      order as may be just."        In addition, the court has an inherent jurisdiction to strike out a case for want of prosecution if there has been default in complying with the rules or excessive delay.        In either case it must be shown that, on the balance of probabilities, there has been inordinate and inexcusable delay in the prosecution of the claim and that the delay has given rise to a substantial risk that it will not be possible to have a fair trial or that it has caused prejudice to the applicant which is more than minimal. In a case where there has been delay in instituting proceedings the case will be treated as one in where the Plaintiff has a duty to act with all the more dispatch. It has also been found that "prejudice" may be found in material disadvantage suffered but also in the context of the passage of time and the consequent dimming of memories. Since the coming into force of the CDDA, a number of disqualification proceedings have been struck out on the above bases.   COMPLAINTS        The applicant complains about the length of the civil disqualification proceedings against him.        The applicant also complains that he was interviewed by personnel from the Official Receiver's office on a number of occasions about HAC and that he was compelled to give short answers to a series of prepared questions. The applicant submits that it was the information gained from those interviews that led to the proceedings against him and that this is in breach of the right against self-incrimination. The applicant also complains that the proceedings against him were "selective" in that as a non-executive director he had no part in the day to day running of the business whereas the Chairman of HAC and a relevant Finance Director (who were both deeply involved in the management of the company) have not been proceeded against.        The applicant invokes Article 6 para. 1 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 22 March 1994 and was registered on 20 June 1994.        On 22 February 1995 the Commission decided to communicate the question concerning length of proceedings under Article 6 para. 1 of the Convention to the respondent Government and to ask for written observations on the admissibility and merits of this question.        The Government's observations were submitted on 14 June 1995, after one extension in the time-limit fixed for this purpose, and the applicant's observations in reply were submitted by letter dated 8 August 1995. The Government submitted further observations by letter dated 18 October 1995.   THE LAW        The applicant raises a number of complaints under Article 6 para. 1 (Art. 6-1) of the Convention, the relevant parts of which Article read as follows:        "1. In the determination .... of any criminal charge against him,      everyone is entitled to a fair and public hearing within a      reasonable time by an independent and impartial tribunal      established by law...."   1.    The applicant mainly complains under Article 6 para. 1 (Art. 6-1) of the Convention that the length of the civil proceedings against him is unreasonable.        The Government argue that the applicant has not exhausted domestic remedies in that he has not applied to have the proceedings struck out for want of prosecution, referring to a number of disqualification proceedings which have already been so struck out by the courts. The applicant argues that such an application would, for a number of reasons, have had little chance of succeeding.        The Commission recalls that an applicant is not required to exhaust a domestic remedy which, at the time it was to be used, offered no chance of success (No. 10103/82, Dec. 6.7.84, D.R. 39 p. 205). The Commission also recalls the limited grounds in domestic law for an order to strike out proceedings for want of prosecution.        The Commission notes that on 14 November 1991 the Registrar of the High Court ordered that the civil trial would not take place until after the criminal trial. In these circumstances, so long as steps in the proceedings continued to be taken, the Commission does not consider that any application to strike out the proceedings for want of prosecution would have stood any prospect of success prior to the criminal trial. The success of any such application was even less likely after 2 April 1993. On that date, a single judge of the High Court, pursuant to specific summonses, extended the period for service of affidavits in reply until after the conclusion of the criminal trial with the consequence that the Official Receiver was unable to make any further progress in the proceedings until the conclusion of that trial. Nor would any such application have stood any greater chance of success after the conclusion of the criminal trial, particularly once the trial date was fixed in October 1994 by the Clerk of the Lists for January 1996. The Commission considers that the cases to which the Government refer (where certain disqualification proceedings were struck out by the domestic courts) concerned sufficiently different circumstances as not to affect the above conclusion.        The Commission therefore considers that, in the circumstances of this case, the Government have not demonstrated that an application to dismiss for want of prosecution would have stood, or would at present stand, any chance of success in light of the existing orders of the Registrar, the judge and the Clerk of Lists referred to above. The Commission therefore finds that the application cannot be said to be inadmissible on grounds of non-exhaustion of domestic remedies.        As regards the determination of the length of proceedings, it is not disputed by the Government that the period under consideration extends from 28 August 1991 (when the civil proceedings were issued) to 11 January 1996 (the scheduled trial date), which amounts to 4 years 4 months and 14 days. However, the applicant also refers to the delay in issuing those proceedings after the liquidation of the HAC group and to the probable length of the trial and appeals proceedings.        As to the merits, the applicant contends, inter alia, that in light of the impact of the length of the proceedings on his personal and professional life, the duration of the proceedings (which have not even reached first instance) cannot be regarded as reasonable. The Government submit that the proceedings did not, in all the circumstances, exceed a reasonable period of time having regard in particular to the exceptional substantive and procedural complexity of the proceedings, the need for the criminal trial to take place first, the conduct of the authorities and the conduct of the applicant.        The Commission recalls that, according to the constant case-law of the Convention organs, the reasonableness of the length of proceedings under Article 6 para. 1 (Art. 6-1) of the Convention has to be assessed in each case in light of the particular circumstances of the case and by applying the following criteria: the complexity of the issues in the case, the conduct of the applicant and the conduct of the competent authorities (see, for example, Eur. Court H.R., Kemmache judgment of 27 November 1991, Series A no. 218, p. 27 para. 60)        Applying these criteria, and having regard to the circumstances of the case as they have been submitted by the parties, the Commission considers that the complaint raises serious issues of fact and law which are of such complexity that their determination should depend on an examination of the merits. This complaint cannot therefore be regarded as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring this complaint inadmissible has been established.   2.    The applicant also complains that he was obliged to give evidence during interviews with personnel from the Official Receiver's office which evidence led to the Official Receiver issuing civil proceedings against him. He also questions the motives of the Official Receiver in issuing those proceedings. He submits that this is borne out by the facts that he had no part in the day to day running of HAC, that the police did not consider him sufficiently involved in the alleged fraudulent trading to interview him and that he was not called as a witness in the criminal proceedings. The Government submit that the evidence gained from those interviews does not form the basis of the case against the applicant and dispute the applicant's version of his involvement in the affairs of HAC.        The Commission considers that it will not be known until the outcome of the civil proceedings whether any evidence given by the applicant at those interviews will be used against him by the Official Receiver. In addition, the Commission also considers that any complaint of the applicant as regards the motives and necessity of issuing proceedings against him are matters which the applicant can properly raise during the trial in the civil proceedings.        The Commission therefore finds that these complaints of the applicant are premature and accordingly manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES ADMISSIBLE the applicant's complaint as to the length      of proceedings without prejudging the merits.        DECLARES INADMISSIBLE the remainder of the application   Secretary to the First Chamber          President of the first Chamber        (M.F. BUQUICCHIO)                        (C.L. ROZAKIS)