SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Applications nos. 43185/98 and 43186/98 
by John Harding PRICE and Mary Hazel LOWE 
against the United Kingdom

The European Court of Human Rights (Second Section), sitting on 3 September 2002 as a Chamber composed of

Mr J.-P. Costa, President
 Mr A.B. Baka
 Sir Nicolas Bratza
 Mr Gaukur Jörundsson
 Mr K. Jungwiert
 Mr V. Butkevych
 Mrs W. Thomassen, judges
and Mrs S. Dollé, Section Registrar,

Having regard to the above applications lodged with the European Commission of Human Rights on 4 May 1998 and 12 August 1998 respectively,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

 

THE FACTS

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

The applicants are British nationals, born in 1929 and 1923 respectively. The applicant in application no. 43185/98 (“Dr Price”) is a consultant psychiatrist; the applicant in application no. 43186/98 (“Mrs Lowe”) is a medical secretary. They live in Lincoln.

The applicants, together with Dr Price’s wife, were sued by “K”, a former patient of Dr Price, in respect of property in Florida. The writ was issued on 12 February 1986. Before the action came to trial, the plaintiff was adjudicated bankrupt on 9 August 1989 and the trustee in bankruptcy continued the action.

The trial was set down to commence in the High Court in August 1994 but was postponed until the end of September 1994 because the judge was not available for the length of time needed for the hearing.

On the fourth day of trial, while K was being cross-examined, an adjournment was granted because K claimed to feel unwell. In the event, it emerged that no medical justification could be given for his continued non-attendance, but nonetheless he remained absent for the rest of the trial. Because of the delay caused by K’s non-attendance, the trial could not be concluded in September 1994 and had to be adjourned until January 1995. Judgment was given on 27 April 1995.

The judge accepted the applicants’ and Mrs Price’s argument that it was necessary to disregard K’s evidence because of his failure to remain for cross-examination. However, on the basis of the documentary evidence and that adduced by the applicants and Mrs Price, the judge found that the transfer of the Florida property should be set aside on the ground that the defendants had not been able to rebut the presumption of undue influence created by the discrepancy in the price they paid K for the property and its value at the time of the transfer, together with the doctor-patient relationship between Dr Price and K.

The formal record of the judge’s order was not prepared by the parties until 26 October 1995. The applicants and Mrs Price applied to the Court of Appeal for leave to appeal on 1 November 1995. The appeal bundles were lodged on 4 October 1996. On 15 January 1997 the appeal was listed for hearing, and it was heard on 16 and 17 April 1997, on which last date the Court of Appeal gave judgment dismissing the appeal.

On 19 April 1997 the applicants and Mrs Price were refused leave by the Court of Appeal to appeal to the House of Lords. On 30 March 1998 they were refused leave to appeal by the House of Lords.

THE LAW

A. Length of the proceedings

The applicants’ first complaint relates to the length of the proceedings, which began on 12 February 1986 and ended on 30 March 1998. They therefore lasted twelve years, one month and eighteen days for three levels of jurisdiction.

According to the applicants, the length of the proceedings is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, which provides, as relevant:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal...”

The applicants are unable to provide a detailed chronology of the pre-trial proceedings. They complain in particular about the failure of the trial to proceed on the original hearing date in August 1994, in their submission because the judge refused to hear it as he had a medical appointment five days later. As a result, the trial was postponed until 26 September 1994.

The Government reject the allegation that the length of the procedings violated Article 6 § 1 and claim that the delay was attributable to the conduct of the parties. Due to the time that had elapsed before the Government were notified of the present applications, and in accordance with usual procedure, the High Court file recording in detail the intermediate stages of the proceedings before trial had been destroyed. It was not therefore possible to establish a detailed chronology of events, but the Government submitted, first, that the progress of the proceedings was at all times in the hands of the parties themselves. It was for the plaintiff, K, and subsequently his trustee in bankruptcy, to seek such interim orders as they might require to prepare for trial and then to invite the High Court to fix a trial date. The High Court would not act of its own motion in so doing, and that fact was, or should have been, known to all concerned, especially since all the parties were represented throughout this period by solicitors and barristers. Had the defendants - now the applicants - any cause for concern about delay, they could have applied to the High Court for appropriate direction, including a date for trial or even the dismissal of the proceedings, had they perceived it in their interests to do so. Secondly, as regards the specific instance of delay complained of by the applicants, namely the postponement of the starting date of trial from August to September 1994, the Government submit that it is for the parties to provide a time estimate for the hearing before the case is listed, and that it is probable that the first judge withdrew because he realised that the time estimate had been unrealistic and that he would not be available for the full time which would actually be required.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

B. Fairness of the proceedings

In addition, the applicants complain under Article 6 § 1 that the proceedings were unfair, in that the High Court judge permitted the trial to proceed despite the fact that the plaintiff, K, absented himself from the hearing before the end of his cross-examination and allegedly lied in his affidavit and oral evidence.

The Court notes that, in his judgment, the trial judge made it clear that he would disregard K’s evidence because of K’s failure to remain for cross-examination. The judge was, however, able to reach a conclusion on the basis of the documentary evidence and that adduced by the applicants and Mrs Price, which findings were upheld on appeal. It cannot be said that these decisions were arbitrary or in any way unfair to the applicants.

It is not the function of the Court of Human Rights to substitute its own assessment of the facts and evidence for that of the national courts or to act as a fourth instance appeal (see, among many other examples, the Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 247-B, § 34).

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be declared inadmissible under Article 35 § 4.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicants’ complaint relating to the excessive length of the proceedings;

Declares the remainder of the applications inadmissible.

S. Dollé J.-P. Costa 
 Registrar President

PRICE and LOWE v. THE UNITED KINGDOM DECISION


PRICE and LOWE v. THE UNITED KINGDOM DECISION