FOURTH SECTION

DECISION

Application nos. 34953/97 and others 
by Debra FITZMARTIN and Others 
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 21 January 2003 as a Chamber composed of

Mr M. Pellonpää, President
 Sir Nicolas Bratza
 Mr A. Pastor Ridruejo
 Mrs V. Strážnická
 Mr R. Maruste
 Mr S. Pavlovschi
 Mr L. Garlicki, judges
and Mrs F. Elens-Passos, Deputy Section Registrar,

Having regard to the applications set out on the list attached to the end of this decision and lodged on various dates from 10 January 1996 onwards,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine those applications which were initially lodged with the European Commission of Human Rights was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicants are United Kingdom nationals. They are represented before the Court by Dicksons HMB, a firm of solicitors practising in Stoke-on-Trent, England.

The applications arise out of the applicants’ failure to pay either court-imposed fines or local taxes. As a result, the applicants were brought before a Magistrates’ Court, which committed them to a term of imprisonment. The High Court subsequently quashed, on various grounds, the orders committing them to prison. With one exception, none of the applicants were legally represented at their hearings. The applicants were not entitled to legal aid (free legal assistance) for any hearings which took place prior to 1 June 1997.

COMPLAINTS

The applicants complained under Article 5 §§ 1 and 5 of the Convention that their detention was unlawful and that they could not obtain compensation therefor. They also complained under Article 6 § 1 of the Convention that they did not have a fair hearing by an independent and impartial tribunal in the Magistrates’ Court and, under Article 6 § 3(c) of the Convention, that they were not legally represented at those hearings.

RELEVANT PROCEDURE

The current applicants, who were part of a total group of 97 applicants, all introduced their cases through Dicksons HMB solicitors.

The Court decided on 23 May 2000 (in relation to 71 of the applicants) and on 11 July 2000 (in relation to 26 of the applicants) to give notice of the applications to the Government of the United Kingdom and that the Government should be invited to submit written observations on the admissibility and merits of the cases. Thereafter, written observations were received from the Government, as well as from the applicants in reply.

The applicants’ solicitors were asked to return a completed form of authority, authorising that firm to represent the applicants before the Court.

On 28 March 2001 the Court wrote to the applicants’ solicitors pointing out that none of the applicants had provided an appropriately completed form of authority. In some cases this was because the law firm named on the form which had been provided (either “Clyde Chappell & Botham” or “HMB Law”) no longer existed as a result of a merger. In others, no form of authority at all had been received. A detailed list was attached to that letter which set out the name and application number of each of the 97 applicants being represented by Dicksons HMB. Copy forms of authority were also enclosed. The Court requested the applicants’ solicitors to return appropriately completed forms of authority by 11 May 2001.

On 10 May 2001 the Court acknowledged receipt from the applicants’ solicitors of forms of authority from three of the 97 applicants. At that time, the Court again enclosed lists of applicants in respect of whom a form of authority was required.

On 30 May 2001, at the time of acknowledging receipt of forms of authority from a further eight of the 97 applicants, the Court again referred the applicants’ solicitors to the lists enclosed with the Court’s letter of 10 May 2001.

On 10 August 2001 the applicants’ solicitors were again referred to the Court’s letter of 10 May 2001 and a further reminder was given about the outstanding forms of authority which were mentioned in the lists attached to that letter.

On 14 September 2001 reference was made to the Court’s letter of 10 August 2001 and the applicants’ solicitors were again requested to return the outstanding forms of authority as soon as possible.

On 30 May 2002 the applicants’ solicitors wrote to the Court enclosing a further 13 forms of authority in respect of the 97 applicants. They stated that they noted that those forms had been on their file for some time and believed that they should have been sent to the Court. They further asked the Court to advise them whether or not there were any other authorities still outstanding.

On 23 July 2002 the Court informed the applicants’ solicitors that it was in the process of checking all the applications and that it would contact them again in due course with a list of applications where an authority, or an up to date authority, was still outstanding.

On 8 November 2002 the Court sent a further letter to the applicants’ solicitors by facsimile and registered post. It pointed out that none of the 97 applicants had provided an appropriately completed form of authority: 30 of the applicants had never provided any form of authority at all; of the remaining 67, only 24 had returned forms of authority since the Court’s letter of 28 March 2001, as detailed above. However, even those 24 forms of authority were no longer believed by the Court to be appropriate. From an unrelated application it appeared to the Court that the lawyer named on those 24 forms of authority as being the applicant’s representative had passed away and that he had, in any event, left the firm named on those forms (Dicksons HMB) to go to another firm before his death.

The Court’s letter of 8 November 2002 enclosed a further list of all 97 applicants from whom appropriately completed forms of authority were required. The history of the request for forms of authority was set out in detail. In the light of that history, the applicants’ solicitors were referred to Article 37 § 1(a) of the Convention. The following warning was then given:

Should appropriately completed forms of authority not be received by 29 November 2002 at the latest, any such applications will be put before the Court for consideration as to whether they should be struck out of its list of cases.

By letter dated 15 November 2002, received by the Court on 27 November 2002, the applicants’ solicitors stated that they had been placed in some difficulty in relation to these cases, initially by the original case lawyer’s departure from the firm and subsequently by his death. The applicants’ solicitors stated that the firm to whom that solicitor had moved had since ceased trading and had asked them to resume conduct of the applications before the Court. The applicants’ solicitors stated that they would review the files and use their best endeavours to deal with the request for the outstanding forms of authority. They continued:

“However, you will appreciate that where outstanding forms of authority have not been returned to us by the client, because possibly we do not know their current whereabouts, the timescale of the 29th November may be impossible to comply with and we would hope that you will be flexible in this regard, although we note that you have requested this information on many occasions. If the client has failed to keep in touch with us, then it may be that their applications will have to be struck out and we would be grateful if you would advise us as to the consequences of that happening.”

No forms of authority were enclosed with that letter. Furthermore, the Court had never been informed, prior to that letter, that the applications had ever been transferred to a firm of solicitors other than Dicksons HMB.

By a further letter of 26 November 2002, received by the Court on 2 December 2002, the applicants’ solicitors enclosed 36 appropriately completed forms of authority. In relation to six applicants1 the applicants’ solicitors stated that they had been unsuccessful in locating their current address details, did not foresee obtaining their authorities within the time limit set and, being unable to take further instructions from those applicants, declared that they would be unable to act on their behalf. They stated that in four other cases2, the applicants were now deceased and that they were endeavouring to seek forms of authority from the next of kin in those cases, which they would forward “in the near future” should any such forms of authority be provided. They further informed the Court that the remainder of the applicants had not responded.

On 6 December 2002, the Court, by facsimile and registered post, acknowledged receipt of the applicants’ solicitors letters of 15 and 26 November 2002. Reference was then made to the Court’s letter of 8 November 2002. The letter continued:

“The Court will now proceed to consider, in the near future, whether to strike out of its list of cases under Article 37 §§ 1(a) and/or (c), in conjunction with Rules 36 and 45 § 3 of the Rules of Court, those applications in respect of which no form of authority has been received here as at the date of its consideration”.

On 9 December 2002 two letters, dated 29 November and 2 December 2002, were received from the applicants’ solicitors. Those letters enclosed a total of four further forms of authority, not relating to any of the applications to which this decision relates. In acknowledging receipt of the applicants’ solicitors’ letters, the Court pointed out that the letters had been received on 9 December 2002 and continued:

“In the light of the Court’s letter to you of 6 December 2002 you should send any future forms of authority that are received by facsimile, as well as by ordinary post.”

No further forms of authority in respect of any of the present applications have been received thereafter.

THE LAW

Rule 36 of the Rules of Court reads, in relevant part:

“1.  Persons, non-governmental organisations or groups of individuals may initially present applications under Article 34 of the Convention themselves or through a representative appointed under paragraph 4 of this Rule.

...

4. (a) The representative of the applicant shall be an advocate authorised to practise in any of the Contracting Parties and resident in the territory of one of them, or any other person approved by the President of the Chamber.”

Rule 45 § 3 of the Rules of Court reads:

“Where applicants are represented in accordance with Rule 36, a power of attorney or written authority to act shall be supplied by their representative or representatives.”

Rule 47 § 6 of the Rules of Court reads:

“Applicants shall keep the Court informed of any change of address and of all circumstances relevant to the application.”

Article 37 of the Convention reads:

“1.  The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a)  the applicant does not intend to pursue his application; or

(b)  the matter has been resolved; or

(c)  for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.

2.  The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”

None of the applicants have been in contact with the Court directly. Each introduced their application through Dicksons HMB solicitors. Where applicants choose to be represented by a solicitor under Rule 36 of the Rules of Court, rather than to introduce their application themselves, it is a requirement, under Rule 45 § 3 of the Rules of Court, that a power of attorney or written authority to act shall be supplied by their representatives.

The Court notes that it is now over 21 months since the applicants’ solicitors were reminded about the need to supply appropriately completed forms of authority in respect of each of the 97 applicants for whom they purported to act. It is also now over 19 months since the date set by the Court for the provision of those forms. The Court notes further that it has written to the applicants’ solicitors about this matter on no fewer than seven occasions from 28 March 2001 onwards and that it has provided them with detailed lists setting out the full names and application numbers of each applicant in respect of whom a form of authority was required. Notwithstanding the failures on their behalf to provide the requisite forms, the Court also gave the applicants’ solicitors a final deadline of 29 November 2002 by which to provide the forms of authority or risk the striking out of the applications in relation to which no such appropriately completed form had been provided.

Even thereafter, the Court’s letter of 6 December 2002 still enabled the applicants’ solicitors to provide appropriately completed forms of authority on behalf of the applicants for whom they purported to act right up until the date on which the applications were actually considered by the Court. Notwithstanding all of the above factors, no such forms have been provided by any of the applicants whose applications are under consideration in this decision.

The Court further notes that, save for the six applicants in respect of whom the applicants’ solicitors state that they cannot locate or act further, no explanation has been offered as to why the forms have not been provided. Even assuming that the applications were transferred to another firm of solicitors for a relatively brief period (it is known from their letter to the Court of 30 May 2002 that Dicksons HMB solicitors were still acting until at least that date and were again acting at the time of the Court’s letter to them of 8 November 2002), this does not explain why appropriately completed forms of authority were not provided in the 14 months from 28 March 2001 to 30 May 2002, why the subsequent firm of solicitors did not provide the forms or why they have still not been provided notwithstanding the strong warning contained in the Court’s letter of 8 November 2002.

In the above circumstances, the Court has considered whether the applications which are the subject of this decision should be struck out of the Court’s list of cases under Article 37 §§ 1(a) and (c) of the Convention.

The Court concludes that the present applicants do not intend to pursue their application within the meaning of Article 37 § 1(a) of the Convention as a result of their failure to respond to the simple and repeated requests to return an appropriately completed form of authority over such a lengthy period of time. They have never been in contact with the Court themselves; nor have they responded to the Court’s requests via the solicitors who purport to act on their behalves.

In addition, the Court concludes that it is no longer justified to continue the examination of the present applications, within the meaning of Article 37 § 1(c) of the Convention, as a result of this repeated failure to forward a form of authority, notwithstanding the requirement for one to be provided under Rule 45 § 3 of the Rules of Court and notwithstanding the numerous requests that have been made to Dicksons HMB solicitors over a lengthy period of time. In so concluding, the Court considers this failure to be a serious disregard of a requirement set out in the Rules of Court.

For the avoidance of doubt, the above reasoning in relation to Article 37 §§ 1(a) and (c) applies also to the specific applications set out below.

First, the Court notes that, in relation to the four applicants who are now said to be deceased, no appropriately completed forms were provided from 28 March 2001 onwards in the period before the Court became aware of their deaths. Furthermore, in the light of, inter alia, the numerous requests for forms of authority, the deaths of these four applicants should have been brought to the attention of the Court and addressed at a much earlier stage. In any event, the applicants’ solicitors stated in their letter of 26 November 2002 that, should forms of authority be provided by the next of kin in the near future, they would be forwarded to the Court. No such forms have been received.

Secondly, in relation to the six applicants with whom their solicitors now state that they have lost contact, the Court notes that they have not provided appropriately completed forms of authority; they do not appear to have complied with the requirement under Rule 47 § 6 of the Rules of Court that applicants are, inter alia, to keep the Court informed about any change in their address; and that they are, apparently, neither in touch with Dicksons HMB solicitors, nor have they ever communicated directly with the Court.

Thirdly, the Court notes that forms of authority were received from 24 applicants between May 2001 and May 2002, as set out in the above facts. None of those forms remained appropriate as they named a solicitor who was no longer alive as the representative of the applicants. However, 20 of those 24 applicants have provided a new and appropriate form of authority in response to the Court’s letter of 8 November 2002. Only four3 have failed to do so. In respect of those four applicants the Court recognises that they have, at an earlier stage, responded to a request for an updated form of authority. However, the form of authority provided by the applicants names a solicitor who is no longer alive and who had, in any event, left Dicksons HMB prior to his death. No appropriate form of authority was ever forwarded to the Court to reflect these changes. Thereafter, these applicants have not provided appropriately completed forms of authority in response to the Court’s letter of 8 November 2002 despite the clear warning contained therein that the Court would consider whether to strike out their cases should they fail to do so.

Finally, the Court does not consider that respect for human rights requires it to continue the examination of any of the present applications. It observes that the general principles relating to the issues raised in these applications have already been considered by the Convention organs, in particular in two Court judgments (see Benham v. the United Kingdom, judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, and Perks and Others v. the United Kingdom, nos. 25777/94 and others, 12 October 1999, unreported). Moreover, many cases raising similar issues to those involved in the present applications remain pending before the Court.

Accordingly, the Court considers that the present applications should be struck out of its list of cases under Article 37 § 1(a) of the Convention and under Article 37 § 1(c) of the Convention.

For these reasons, the Court unanimously

Decides to strike the applications out of its list of cases.

Françoise Elens-Passos Matti Pellonpää 
 Deputy Registrar President

 

App. no

Applicant’s name

App. no

Applicant’s name

34953/97

Debra FITZMARTIN

55048/00

Deborah ANDERSON

34954/97

Roderick P. FITTON

55058/00

Shoker HALEYEH

34955/97

Stephen P. BUNTING

55064/00

Carol CRAWFORD

35449/97

Doreen CHAPMAN

56113/00

John F HALL

36270/97

Maria WIGHTMAN

56235/00

Christine RANDLE

36271/97

Tina GHAZALI

56236/00

Sandra DUFFY

36365/97

Lisa BORROW

56406/00

Angelique GROVER

37548/97

Michael FLEMING

56414/00

Kevin BRAY

37549/97

Marjorie RIBBANS

56424/00

Shirley A. HUMPHREY

37550/97

Veronica M. BOYLE

56427/00

Elizabeth JACK

37552/97

Clive RICHARDS

56430/00

Elizabeth PARKER

37868/97

Margaret NICHOLDS

56432/00

Rhona SHELTON

38731/97

Sylvia McGREGOR

56437/00

Amanda COSTA-LIMA

41069/98

David M. COOPER

56439/00

Choi-Mei LAU

41345/98

Kay GALLON

56445/00

Michael J. STONE

43113/98

Julie A. WHEELER

56450/00

Rosemary COOPER

43119/98

Carla J. HANNAN

44664/98

Stephanie PARKER

45384/99

Rosemary BLACKETT

45389/99

Janette ISON

45411/99

Angela SHAWCROSS

45418/99

Diane MALONEY

45421/99

Lorraine WARDLE

45422/99

Carol A. DAVIES

45489/99

Deborah MARTYN

45842/99

Dawn PEAT

45843/99

Lisa M. READSHAW

46056/99

Maureen CLABON

46083/99

Jennifer FORBES

46138/99

Michelle TOLFREY

46325/99

Michael SCAIFE

46414/99

Margaret HIND

47141/99

Pauline STILES

2481/03

Victoria BROWN

2485/03

Anne Denise DRIVER

2486/03

Gaynor WELSH

2487/03

Sarah BEAVERIDGE

54987/00

Hayley CRAIG

54990/00

Rosette McDONALD

54993/00

Mairead DOWLING

55010/00

Michaela ROBERTS

1 Application nos. 34954/97, 45384/99, 54990/00, 56236/00, 2481/03 and 2486/03.


2 Application nos. 37548/97, 55048/00, 56113/00 and 56427/00.


3 Application nos. 45418/99, 45843/99, 46325/99 and 56414/00.


FITZMARTIN AND OTHERS v. THE UNITED KINGDOM DECISION


FITZMARTIN AND OTHERS v. THE UNITED KINGDOM DECISION