THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38753/97

by Peter VERNON

against the United Kingdom

The European Court of Human Rights (Third Section) sitting on 7 September 1999 as a Chamber composed of

Mr J.-P. Costa, President
Sir Nicolas Bratza, 
Mr L. Loucaides

Mr P. Kūris, 
 Mr W. Fuhrmann, 
 Mr K. Jungwiert, 
 Mr K. Traja, Judges

with Mrs S. Dollé, Section Registrar;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 8 September 1997 by Peter Vernon against the United Kingdom and registered on 25 November 1997 under file no. 38753/97;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

 

THE FACTS

The applicant is a British national, born in 1942, and resides in Gloucestershire. He is represented by Messrs Osbourne Clarke, Solicitors, from Bristol.

The facts of the case, as submitted by the applicant, may be summarised as follows.

In 1982, the applicant witnessed the tragic death by drowning of his two young children when the car they were in, being driven by their nanny, went into a river. The applicant had previously experienced some psychological instability in his life, but, following the accident, he began to manifest symptoms of Post Traumatic Stress Disorder. From being a successful businessman, he became unemployable, and the relationship with his wife broke down. In October 1993, they were divorced.

In August 1985, a writ was issued in an action for damages for personal injury against the driver of the vehicle. The action was set down for trial on the application of the Defence in June of 1996. The initial estimate for the length of the trial was six weeks. The trial began on 12 January 1994. After six weeks, the applicant as plaintiff was still giving evidence. He was in the witness box for thirty days overall. Due to his mental condition, the process of questions and answers was very lengthy, and the estimate for the trial length was revised. There were additionally conflicts with the judge's timetable which required lengthy breaks in the trial, and a move in the venue from Cardiff to London.

An application was made by the applicant's representatives in February 1994 to impose time-limits in respect of cross-examination of the applicant. This was refused on the basis that the defence must have every opportunity to present their case, subject to the normal controls. In April 1994, the applicant’s expert witnesses, Dr L and Mr M, gave evidence, essentially stating that the prognosis was not very good, and that the applicant was unlikely ever to be able to work again. On 13 June 1994, Mr Justice Sedley imposed time-limits for the hearing of the remaining witnesses and to ensure the trial finished in time. The evidence in the trial, which lasted 70 days, concluded on 14 July 1994. Counsel made their final submissions on 24 and 25 October 1994. The judge, Mr Justice Sedley, did not give his judgment until 30 January 1995, which judgment ran to 262 pages, giving judgment for the applicant in the sum of over ,1,300,000. Following further submissions of the parties on aspects of social security benefits, interest, costs, stay of execution, time for appeal and the form of order, Mr Justice Sedley gave a further judgment on 10 May 1995.

In August 1994, the applicant had applied for a residence order under the Children Act 1989 in respect of his remaining children. The expert doctors who had given evidence in the personal injury trial were instructed by the applicant to give their views of the state of the applicant's mental health for the purpose of these proceedings. They produced draft reports which gave a more positive prognosis. Mr M’s report went so far as to suggest that the applicant was no longer suffering mental health problems. It was sent to the solicitors of the applicant’s wife by mistake. The applicant’s counsel, on his instructions, applied to the judge in the family matter for the report to be returned on the basis that it had been disclosed without the applicant’s authority and that the applicant did not wish to rely on it. The judge ruled that the report was to be admitted in evidence. The applicant states that as a result he was obliged to call Mr M as a witness. Mr M produced a revised version of his draft report. Dr L in his oral evidence stated that he would have to alter the prognosis given previously as the applicant had remained free of depression and his medication had been reduced, such that it was now appropriate to see if it could be further reduced or even stopped. He stated that he had not foreseen this improvement earlier though it was premature to be optimistic. In the applicant’s evidence in the family proceedings, he said in a statement of 30 September 1994 that his psychiatric situation had improved dramatically and, in his oral evidence, he did not resile from his descriptions of his improved mental health. On 6 January 1995, the Judge in the family matter, Judge McNaught, rejected the applicant’s claim for a residence order, though subsequently, the applicant’s ex-wife agreed that he should have custody of the youngest child.

Concerns had arisen as to the relevance of the medical reports to the imminent decision of Mr Justice Sedley in the personal injury action. The applicant sought the opinion of his Queen's Counsel as to whether the documents needed to be disclosed. He was advised on 16 November 1994 that as the reports were subject to professional privilege they need not be.

The defendants in the personal injury action appealed against the decision of Mr Justice Sedley, and the appeal was heard over 12 days in January and February 1996. A draft judgment of the Court of Appeal was produced on 29 March 1996. It reduced the award of damages to £643,425.59 with interest and costs. Part of the interest awarded by Mr Justice Sedley was deducted (one year) on the basis of the applicant’s inordinate delay in the case. When the draft judgments were handed down, however, issues were raised by the parties as to the correct calculation of past and future loss of earnings. These matters were adjourned in the hope that the parties could agree, failing agreement the matter was to be re-argued on those points.

On 17 April 1996, leading counsel for the defendants received anonymously through the post copies of the reports prepared by the applicant’s doctors in the Children Act proceedings. On 30 April 1996, the defendants applied to the Court of Appeal for the appeal to be listed for rehearing, for discovery and inspection of the medical reports and evidence given in the family proceedings.  After initially resisting the application for disclosure, on 19 September 1996, the applicant waived any privilege covering the documents in the light of the decision of the House of Lords of the House of Lords, In re L (A Minor)(Police investigation: privilege) judgment of 21 March 1996 [1997] A.C. 16, and in the hope of shortening the proceedings. The reports and transcripts of evidence were placed before the Court of Appeal, which sat on 22 and 23 October and 5 to 8 November 1996. The Court of Appeal agreed to the defendant’s application for further evidence to be heard and for Dr L to be heard as a witness. The applicant called Mr M as a witness.

The applicant also applied to be allowed to give evidence himself as to his current mental condition, and to call another witness as to the same matter. He asked to be able to produce further evidence from an employment expert regarding loss of earnings, based on the Court of Appeal's findings as to his mental state. The Court of Appeal refused both these applications, giving the following explanation at page 50 of its judgment:

So far as the Plaintiff is concerned we know what he was saying about his health in October 1994; we also had Dr <L.>'s clinical notes recording the <applicant’s> condition at fairly regular intervals since then. The Judge found the <applicant> to be an unsatisfactory and unreliable witness who was compulsively manipulative. There is also abundant evidence from his pre-accident job applications that he was untruthful when it suited his convenience. If <the applicant> had given further evidence it would only have invited further lengthy cross-examinations to show this Court what the Judge had already concluded. We did not think further evidence from him would assist the Court.

As to further evidence from an employment expert, no doubt to be countered by such a person called on behalf of the Defendant and which would in any event have occasioned further delay and expense in this far too protracted litigation, again we did not think this would assist the Court. Such evidence would be unlikely to be sufficiently precise and would be likely to be discursive and speculative depending on the findings of this Court. In my judgment the Court must adopt a broad-brush approach to the question doing the best we can with the material at our disposal.”

Judgment was given on 13 December 1996, and the decision of the Court, by a majority, was to reduce the award of damages made in favour of the applicant to the sum of just over ,600,000. This involved a further reduction in Mr Justice Sedley’s award of £60,000 from the sum of future loss of earnings, the sum of general damages was reduced by a further £20,000, and sums for future domestic help and future gardener/handyman reduced from £10,233.60 and £3,952 respectively to nothing. This decision was made on the basis of the finding by the Court of Appeal that the applicant had made a substantial recovery since 1993. While it found that his recovery was not complete and that he would require low level medication and supportive therapy for the foreseeable future, it considered that this did not prevent him functioning normally. As regards the issues arising from the disclosure of materials from the family proceedings, one of the appeal court judges observed that “it is simply unconscionable for a litigant to run contradictory cases in simultaneous proceedings in the hope of gaining advantage in each” and another appeal judge noted that, if it was correct that the evidence falsified the assumptions previously made by the trial judge and themselves in the civil proceedings, it would be inequitable and an affront to common sense and justice not to admit it.

The award was however less than the £750,000 paid into court by the defendants, and thus the applicant became liable to pay a substantial amount of costs.

The applicant petitioned for leave to appeal to the House of Lords, which petition was refused on 10 March 1997.

COMPLAINTS

The applicant complains of a number of violations of the Article 6 § 1 of the Convention in respect of the personal injury proceedings:

1. that the length of the proceedings amounts to a violation with regard to the failure to impose time limits, the length of the trial at 70 days over 9 months, the delay in delivery of the judgment and the appeal process taking over 18 months;

2. that the Court of Appeal arbitrarily departed from its rules in altering the amount of damages without good reason. This arbitrariness meant that the applicant could not foresee the result, in violation of his right to a fair trial;

3. that the applicant was required to produce the confidential report of Mr M and effectively compelled to call Mr M before the Court of Appeal as a witness, even though this was against his interest, in violation of his right to a fair trial;

4. that the applicant was not allowed to give evidence in reply to the new evidence called by the defence, in violation of his right to a fair trial.

THE LAW

The applicant complains of various aspects of the personal injury proceedings, invoking Article 6 § 1 of the Convention.

Article 6 of the Convention, insofar as relevant, reads:

1. 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.”

1. Insofar as the applicant complains of delay in the expedition of his case, the reasonableness of the length of the proceedings must be assessed in the light of the particular circumstances of the case, looking at the complexity of the case, the conduct of the applicant and the conduct of the authorities. Even where delay is due to the behaviour of the parties in failing to expedite the matter, however, the domestic courts have a duty to deal properly with the case (see eg. Boddaert v. Belgium judgment of 12 October 1992, Series A no. 235-D, § 39).

The Court notes that no complaint is made by the applicant about the larger part of the delay, which occurred before the trial began on 12 January 1994, and which appears to have been by consent between the parties. It notes that the matter was finally set down for trial in 1993 by the defendant.  The Court does not consider it necessary to examine the delay prior to trial further.

As regards the trial, the Court observes that it lasted 70 days over a period of 9 months, in considerable excess of the six weeks initially estimated by the parties. However, the case involved considerable amounts of expert evidence and it is evident that there were significant difficulties arising in the examination of the applicant due to his mental condition.  While the trial judge refused an application to impose time-limits on the cross-examination of the applicant, in the interests of giving the defence a fair opportunity to present their case, the judge did impose a time-limit to bring the proceedings to a final conclusion on 14 July 1994.  Practical difficulties, involving the judge’s timetable, appear to have contributed to drawing out the proceedings. However, in the circumstances, the Court does not find that the duration of the trial was unduly excessive.

As regards the lapse of time from the close of trial until the production of the judgment on 30 January 1995, the Court recalls that the parties made further written submissions during this period and that there was a further hearing in September 1994. It considers that the four months then taken by Mr Justice Sedley to prepare his 264 page judgment does not disclose an excessive or unreasonable delay. That the judgment was not itself finalised until March of 1995 was due to further disputes over technical matters between the parties.

As regards the appeal, the Court notes that this involved further submissions made by the parties in January and February 1996 over a period of 12 days, the resolution of disputes between the parties on interest calculations and further submissions and witnesses relating to the new medical evidence, the disclosure of which the applicant initially resisted. The Court finds that the matters raised were complex and technical and that in taking steps to determine them with proper regard to the interests of both parties, the Court of Appeal did not show any lack of reasonable expedition.

Having regard to the complexity of the case and the conduct of the applicant, the Court does not find any unreasonable delay amounting to a violation of the Article 6 § 1 of the Convention.

2. Insofar as the applicant complains that the Court of Appeal’s decision was arbitrary and unforeseeable, the Court recalls that it is primarily for the domestic courts to interpret and apply domestic law. The applicant states that the Court of Appeal arbitrarily departed from 50 years of established practice. However, the Court observes that the Court of Appeal had the competence to alter the level of damages awarded by a first instance judge in personal injuries. It is not satisfied that the applicant, who was legally represented throughout the proceedings, was unaware of that possibility. Nor is it persuaded that the Court of Appeal’s decision to reduce the amount of damages as being too high, without expressly specifying in line with previous authority that the award had been so high as to make it an erroneous estimate, disclosed such arbitrariness or unreasonableness as to render the proceedings unfair contrary to Article 6 § 1 of the Convention.

3. The applicant complains that he was not allowed to give evidence himself in response to the new medical reports produced at appeal, as well as being refused leave  to call a new expert witness. The Court recalls that it is not for the Convention organs to substitute their view for that of the national courts which are primarily competent to determine the admissibility and relevance of evidence. The Court must nevertheless satisfy itself that the proceedings as a whole were fair, having regard to any possible irregularities before the case was brought before the courts of trial and appeal, and verifying that those courts had been able to remedy them if there were any (cf. Miailhe v. France judgment of 26 September 1996, Reports 1996-IV, No. 16, p.1338, § 43).

While an applicant generally enjoys the right under Article 6 § 1 to be heard in consideration of his case, the manner of application of Article 6 to proceedings before courts of appeal depends on the special features of the proceedings involved, account being taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein (see eg. Ekbatani v. Sweden judgment of 26 May 1988, Series A no. 134, p. 13, §§ 27-28). The Court has therefore considered in the present case whether a departure from the principle that there should be a public hearing at which an applicant has the right to be present and argue his case, could, in regard to the proceedings before the Court of Appeal, be justified in the circumstances of the present case by the special features of the domestic proceedings viewed as a whole (see, mutatis mutandis, the Axen judgment of 8 December 1983, Series A no. 72, p. 12, § 28). In deciding this question, the Court must have regard to the nature of the appeal system, the scope of the Court of Appeal's powers and the manner in which the applicant's interests were actually presented and protected before the Court of Appeal.

The Court notes that the applicant had had every opportunity to explain the extent of his ill-health at the time of his lengthy trial, and that he was fully represented by Queen's Counsel who was able to make submissions to the Court of Appeal on his behalf. The proceedings in the Court of Appeal were based on grounds of appeal, not on the rehearing of the case, and, according to its rules of procedure, the taking of new evidence on points of fact was exceptional. Two expert witnesses were permitted to give evidence on appeal and in fact did so in support of the applicant’s proposition that he was still suffering a significant degree of mental impairment. The Court of Appeal gave reasons for their decision not to allow further evidence to be called, in particular the wealth of evidence already provided by the applicant on his behalf and the likelihood that additional evidence from the applicant would cause still more delay in the protracted proceedings. Therefore, viewed as a whole, the Court considers that the proceedings from trial to appeal did not deprive the applicant of a fair and effective opportunity to put his case.

4. The applicant further complains that he was required to produce the confidential report of Mr M from the family proceedings, and that he was effectively compelled to call Mr M, as a witness, against his own interests.

The Court recalls that the matters concerning the admission of evidence are governed primarily by the rules of domestic law - this includes issues relating to the disclosure by parties of their evidence and the categories of documents to which privilege may obtain. The Court’s task is to ascertain whether the proceedings, considered as a whole, including the way in which evidence was submitted were fair (see eg. Lüdi v. Switzerland judgment of 15 June 1992, p. 20, § 43). It would observe that the guarantees afforded by Article 6 are to be interpreted in light of its underlying purpose of securing the proper administration of justice.

The Court would remark that it was the applicant, on the advice of his lawyers, who waived privilege and obtained the requisite court order to produce the document. The explanation given is that he was forced to do so by a recent decision of the House of Lords, In re L (A Minor)(Police investigation: privilege) [1997] A.C. 16, which is currently pending before the Court as No. 34222/96, L. v. UK. That application concerns the disclosure of an adverse confidential report obtained for the mother in Children Act proceedings and the effect on the fairness of those proceedings.

In the present application, however, the applicant does not complain of the fairness of the family proceedings but alleges that he was forced to call a witness, Mr M, in his personal injury case to counter the effect of Mr M’s draft report which formed evidence in the family proceedings. The Court considers however that this must be regarded as a tactical decision taken by the applicant in the pursuance of what he perceived to be his best interests. Furthermore, the fact that the expert report was adverse to the applicant, in the sense that it contradicted the evidence previously given by that expert on his behalf, does not make the trial as a whole unfair. He was able to call Mr M before the appeal court in order to seek any explanations or clarifications of the report which might be in his favour. Also the Court notes that the applicant had a further revised report produced by Mr M submitted in evidence to supplement the evidence on his behalf. The Court further observes that Mr M’s report was not the only material before the appeal court, even if it was apparently the most prejudicial, which indicated that the applicant’s health had improved and that the prognosis was better than previously expected. Nor in their judgments did the appeal court judges lay exclusive or arbitrary weight upon this element.

Taken in the context of the proceedings as a whole, therefore, the Court does not find that any requirement, legal or tactical, imposed on the applicant to produce Mr M’s draft report and to call him as a witness rendered the proceedings against him unfair or deprived him of an effective opportunity to present his case. It finds no basis for objecting on grounds of fairness to the approach adopted by the appeal court judges who found that the rules governing disclosure should not be interpreted in such a way as to facilitate the running of contradictory claims in simultaneous proceedings.

Finally, insofar as the applicant appears to rely on a privilege against self-incrimination, the Court observes that no such separate protection exists in civil cases either in the domestic courts or under Article 6 § 1 of the Convention, the matter falling to be considered under the general aspect of fairness examined above.

5. The Court concludes that the applicant’s complaints above disclose no appearance of a violation of Article 6 § 1 of the Convention and must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

S. Dollé J.-P. Costa

Registrar President

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