DOES THE CIVIL LITIGANT HAVE HUMAN RIGHTS? CPR 3.9, ARTICLE 6 AND THE RIGHT TO A FAIR TRIAL
This post looks at the case law relating to Article 6 and the right to a fair trial in civil proceedings. It looks at whether decisions under the new CPR 3.9 need to consider the issue of “proportional response”.
Article 6 1 of the European Convention on Human Rights states:
“1.In the determination of his civil rights and obligations or 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. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
Article 6 applies to civil actions
Note that Article 6:
- Applies to the determination of civil rights.
- Gives an entitlement to a fair and public hearing.
There has been some speculation recently as to whether the hard line approach taken by the courts in relation to CPR 3.9 represents a breach of Article 6. See for example,
Consideration of the right of access in the ECCHR
This issue was considered, albeit in passing, by the European Court of Human Rights in Ashingdane –v- The United Kingdom http://www.bailii.org/eu/cases/ECHR/1985/8.html
Ashingdane was a case about the applicant’s detention under the Mental Health Act. The applicant issues proceedings against certain trade union officials. That action was stayed because s.141 of the Mental Health Act 1959 provides:
“1. No person shall be liable … to any civil … proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act …, unless the act was done in bad faith or without reasonable care.
2. No civil … proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court, and the High Court shall not give leave under this section unless satisfied that there is substantial ground for the contention that the person to be proceeded against has acted in bad faith or without reasonable care.”
Part of the applicant’s argument was that s.141 prevented him from having access. This argument was considered by the Court:
“III. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
53. Mr. Ashingdane complained of the decision of the Court of Appeal whereby his actions against the Department of Health and Social Security and the local Health Authority concerning allegedly “civil rights” within the meaning of Article 6 para. 1 (art. 6-1) were barred in limine by virtue of section 141 of the 1959 Act. In his submission, this decision entailed a breach of Article 6 para. 1 (art. 6-1), which reads:
“In the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ….”
54. The Government contended that the facts of the present case fell outside the ambit of Article 6 para. 1 (art. 6-1), in particular because the claims asserted by the applicant before the English courts did not relate to any “civil right”.
The Court does not consider it necessary to settle this dispute since it has come to the conclusion that, even assuming Article 6 para. 1 (art. 6-1) to be applicable, the requirements of this provision were not violated.
55. In its Golder judgment of 21 February 1975, the Court held that “Article 6 para. 1 (art. 6-1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal” (Series A no. 18, p. 18, para. 36). This “right to a court”, of which the right of access is an aspect, may be relied on by anyone who considers on arguable grounds that an interference with the exercise of his (civil) rights is unlawful and complains that he has not had the possibility of submitting that claim to a tribunal meeting the requirements of Article 6 para. 1 (art. 6-1) (see the Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 20, para. 44 in fine, and the Sporrong and Lönnroth judgment of 23 September 1982, Series A no. 52, p. 30, para. 81). Furthermore, in the “contestations” (disputes) contemplated by Article 6 para. 1 (art. 6-1) it may be the actual existence of a “civil right” which is at stake (see the first-mentioned judgment, p. 22, para. 49 in fine).
56. The applicant did have access to the High Court and then to the Court of Appeal, only to be told that his actions were barred by operation of law (see paragraphs 17 and 18 above). To this extent, he thus had access to the remedies that existed within the domestic system.
57. This of itself does not necessarily exhaust the requirements of Article 6 para. 1 (art. 6-1). It must still be established that the degree of access afforded under the national legislation was sufficient to secure the individual’s “right to a court”, having regard to the rule of law in a democratic society (see the above-mentioned Golder judgment, Series A no. 18, pp. 16-18, paras. 34-35, and paragraph 92 of the report of the Commission in the present case).
Certainly, the right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access “by its very nature calls for regulation by the State, regulation which may vary in time and in place according to the needs and resources of the community and of individuals” (see the above-mentioned Golder judgment, p. 19, para. 38, quoting the “Belgian Linguistic” judgment of 23 July 1968, Series A no. 6, p. 32, para. 5). In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. Whilst the final decision as to observance of the Convention’s requirements rests with the Court, it is no part of the Court’s function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field (see, mutatis mutandis, the Klass and Others judgment of 6 September 1978, Series A no. 28, p. 23, para. 49).
Nonetheless, the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired (see the above-mentioned Golder and “Belgian Linguistic” judgments, ibid., and also the above-mentioned Winterwerp judgment, Series A no. 33, pp. 24 and 29, paras. 60 and 75). Furthermore, a limitation will not be compatible with Article 6 para. 1 (art. 6-1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.”
THE TEST IN DETAIL
It is worthwhile looking at that last passage in some detail.
1 The restriction must not restrict or reduce the access to such an extent that the very essence of the right is impaired.
2. The limitation must pursue a legitimate aim.
3.There must be a “reasonable relationship of proportionality between the means employed and the aim sought to be achieved.”
There is no doubt that the revised CPR 3.9 has a legitimate aim. However the central test a court must consider is whether, in applying CPR 3.9 there is reasonable proportionality between the means employed (debarring a litigant) and the aim. .
CONSIDERATION OF ARTICLE 6 IN THE SUPREME COURT
The question of Article 6 was considered by the Supreme Court in Fairclough Homes –v- Summers  UKSC 26 where the court considered an argument that the entire action should be struck out when part of the claim for damages was fraudulent.
Lord Clarke delivered the judgment of the Court and expressly considered Article 6.
“The European Convention on Human Rights
- The right to a fair and public hearing in the determination of civil rights is enshrined in Article 6 of the European Convention on Human Rights (“ECHR”). The right includes a right of access to a court: Golder v United Kingdom (1975) 1 EHRR 524. The court must act compatibly with Article 6: Human Rights Act 1998 section 6(1). The court is of course itself a public authority: section 6(3). The right of access is not absolute:Golder at para 38. In Ashingdane v United Kingdom (1985) 7 EHRR 528 the European Court of Human Rights accepted at para 57 that the right might be subject to limitations. Contracting States enjoy a margin of appreciation. However, the essence of the right of access must not be impaired, any limitation must pursue a legitimate aim and the means employed to achieve the aim must be proportionate.
- In the instant case the claimant obtained judgment on liability for damages to be assessed. We accept that that judgment is a possession within the meaning of Article 1 Protocol 1 of the ECHR and that the effect of striking out his claim for damages would be to deprive him of that possession, which would only be permissible if “in the public interest and subject to the conditions provided for by law …” The State has a wide margin of appreciation in deciding what is in the public interest, but is subject to the principle of proportionality: Pressos Compania Naviera SA v Belgium (1996) 21 EHRR 301 at paras 31-39.
- It is in the public interest that there should be a power to strike out a statement of case for abuse of process, both under the inherent jurisdiction of the court and under the CPR, but the Court accepts the submission that in deciding whether or not to exercise the power the court must examine the circumstances of the case scrupulously in order to ensure that to strike out the claim is a proportionate means of achieving the aim of controlling the process of the court and deciding cases justly.
The exercise of the power
- As noted at para 42 above, the court has a wide discretion as to how to exercise its case management powers. These include the power to strike out the whole or any part of a statement of case at whatever stage it is made, even if it is made at the end of the trial. However the cases stress the flexibility of the CPR: see eg Biguzzi per Lord Woolf MR at p 1933B, Asiansky Television v Bayer-Rosin  EWCA Civ 1792; CPLR 111 per Clarke LJ at para 49 and Aktas v Adepta  EWCA Civ 1170,  QB 894, where Rix LJ said at para 92:
“Moreover, it should not be forgotten that one of the great virtues of the CPR is that, by providing more flexible remedies for breaches of rules as well as a stricter regulatory environment, the courts are given the powers and the opportunities to make the sanction fit the breach. That is the teaching of one of the most important early decisions on the CPR to be found in Biguzzi v Rank Leisure plc.”
The draconian step of striking a claim out is always a last resort, a fortiori where to do so would deprive the claimant of a substantive right to which the court had held that he was entitled after a fair trial. It is very difficult indeed to think of circumstances in which such a conclusion would be proportionate. Such circumstances might, however, include a case where there had been a massive attempt to deceive the court but the award of damages would be very small.
- It was submitted on behalf of the defendant that it is necessary to use the power to strike out the claim in circumstances of this kind in order to deter fraudulent claims of the type made by the claimant in the instant case because they are all too prevalent. We accept that all reasonable steps should be taken to deter them. However, there is a balance to be struck. To date the balance has been struck by assessing both liability and quantum and, provided that those assessments can be carried out fairly, to give judgment in the ordinary way. The reasons for that approach are explained by the Court of Appeal in both Masood v Zahoor and Ul-Haq v Shah.”
It is interesting to see the emphasis on proportionality. Note, in particular, the passage at 48:
“the Court accepts the submission that in deciding whether or not to exercise the power the court must examine the circumstances of the case scrupulously in order to ensure that to strike out the claim is a proportionate means of achieving the aim of controlling the process of the court and deciding cases justly.”
The Court was, of course, considering a different issue. The striking out of an entire action. However the central issue is the emphasis on:
- The need to examine the circumstances of the case “scrupulously”.
- To consider whether striking out was a “proportionate means” of controlling the process of the court and deciding cases justly.
THE HUMAN RIGHTS ARGUMENT IN THE COURT OF APPEAL
|Article 6 was considered in Mannion –v- Ginty  EWCA Civ 1667. This was a dispute about the ownership of the house where the defendant was in breach of a peremptory order and applied, five months late, for relief from sanctions.Lord Justice Lewinson observed:“The principal ground of appeal is that the order refusing relief against sanctions is disproportionate because it would result in Miss Ginty losing her home without her defence ever having been tried on the merits. That is said to infringe her rights under Articles 6 and 8 of the European Convention on Human Rights”
He went on to state:
“13. There is no doubt in my mind that, compatibly with Article 6 of the Convention, the court can make summary orders disposing of proceedings. There is equally no doubt that it can make orders striking out proceedings if its own orders are not complied with. This power is not removed merely because a dispute relates to someone’s home, but Article 8 does of course require consideration of the effect which the strike out or the refusal of relief from sanctions would have.”
However the first instance judge in Mannion had, carefully, gone through the old CPR 3.9 criteria and considered the relevant factors. Further in addressing that part of the (old) 3.9 which required the court to consider the effect of declining relief from sanctions the judge had complied with the Article 8 obligation and “had respect for”, Miss Ginty’s home.
See the judgment at http://www.bailii.org/ew/cases/EWCA/Civ/2012/1667.html
IS MANNION THE LAST WORD ON THE SUBJECT?
Further the Human Rights argument was considered almost in passing in Mannion. There was no reference to Fairclough or the issue of proportionality.
DOES THIS HAVE ANY PRACTICAL USE?
Until we have a definitive judgment from the Court of Appeal (or possibly Supreme Court) it may have and it would be unwise to ignore this. I have seen judgments where the judge has decided that because the party in breach knew of the order that, in itself, was good grounds for refusing relief. There was no consideration of the applicant’s right to a fair trial; there was no consideration whether the response was “proportional”.
Until we hear otherwise it would be prudent to include this argument in every application for relief.
(“Article 8 – Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”)