AS TO THE ADMISSIBILITY OF
Application no. 51591/99
by MARKASS CAR HIRE LTD
The European Court of Human Rights (Third Section), sitting on 23 October 2001 as a Chamber composed of
Mr J.-P. Costa, President,
Mr L. Loucaides,
Mr P. Kūris,
Mrs F. Tulkens,
Mr K. Jungwiert,
Mrs H.S. Greve,
Mr M. Ugrekhelidze, judges,
and Mr T.L. Early, Deputy Section Registrar,
Having regard to the above application introduced on 5 August 1999 and registered on 5 October 1999,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Markass Car Hire Ltd, is a car hire company registered in Cyprus. It is represented before the Court by Mr C. Clerides, a lawyer practising in Nicosia.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant company is the owner and hire purchaser of a fleet of vehicles registered in Cyprus and licensed as “Z” vehicles.
On 1st July 1996 the District Court of Nicosia delivered judgment in a civil action lodged by the applicant against another company, Diprose Ltd, also in the car hire business. The District Court held, inter alia, that the applicant having legally terminated an agreement with Diprose, permitting use and exploitation by the latter of the above-mentioned fleet of cars, it was entitled to take possession thereof and to sell them in satisfaction of a debt of 667,776 Cypriot pounds owed to it by Diprose, by way of rental under the said agreement, and to pay the remaining amount in satisfaction of debts owed by the applicant to a number of banks which had financed the purchase of the fleet by the applicant. Furthermore, the District Court ordered Diprose to deliver the cars to the applicant. Diprose obtained a stay of execution of the judgment on condition that it regularly paid certain instalments to the applicant for the use of the vehicles which the applicant had given to it in the past for rental to third parties.
Diprose failed to keep up the instalments and, as a result, on 8 January 1998, the District Court of Nicosia allowed the applicant to collect the vehicles. In the meantime, Diprose had been wound up and, by letter of 11 February 1998, the liquidator declared that he was willing to return the vehicles, which apparently had been wrongfully given to another company, Kemtours Ltd, belonging to the same group as Diprose, without the consent of the applicant.
In the meantime, Kemtours had instituted proceedings (action 3315/98) seeking damages from the applicant for the breach of the agreement which they had allegedly concluded on 3 February 1997. Kemtours contended that, under the said agreement, 127 vehicles had been rented to it by the applicant but a number of them was still in the applicant’s possession. Kemtours further sought to obtain a decision preventing the applicant company from interfering with Kemtours’ activities related to the said agreement and ordering it to hand over to Kemtours a number of the said vehicles which were still in the applicant’s possession.
Whilst the applicant was in the process of collecting the vehicles, Kemtours obtained in fresh proceedings before the District Court of Nicosia, and on an ex parte basis, an interim decision which ordered the applicant to deliver the said vehicles to Kemtours. This order was issued on 31 March 1998 and served on the same date on the applicant.
The order was to be enforced on 13 April 1998. On that date, the applicant’s lawyer appeared before the court and requested time to appeal against the order. The court fixed the case for directions on 5 May 1998 and then on 7, 20 and 25 May in order to afford time to the parties to settle their dispute. The court invited the lawyer to file an appeal at least four days before 5 May 1998.
However, the applicant filed its appeal on 5 May 1998. The applicant maintained that the court had been misled by Kemtours, which had failed to disclose the real facts of the case and the previous judgment and decision of the District Court. The applicant invited the District Court to hold a hearing as soon as possible in view of the fact that the fleet of “Z” cars was worth more than 500,000 Cypriot pounds. Furthermore, the applicant alleged that the unauthorised use of the vehicles under the interim decision would entail a reduction of their value and would prevent the applicant from presenting them to the competent authorities in order to have their licenses renewed. Finally, the applicant affirmed that it had never entered into such an agreement with Kemtours.
As the parties had reached no settlement of the case by 27 May, the District Court fixed the hearing for 8 July 1998. On this date, the judge stopped the hearing at midday, because of the “lateness of the hour”, and adjourned it until 17 July 1998, during the summer recess. However, the judge pointed out that he would be working during this period.
The hearing started on 17 July 1998. Evidence given by Kemtours was completed on the same day.
According to the applicant, it should have been completed in the same month or at the beginning of August 1998. However, it was repeatedly adjourned due to the illness of either the advocate for the plaintiff or the judge dealing with the case, as well as to the latter’s transfer to other pending court proceedings.
At the end of the hearing, the applicant’s lawyer indicated five dates in July on which he could make himself available for the continuation of the hearing, but the advocate for the plaintiff declared that he would be unavailable due to other court commitments.
Adjournments were thus ordered until 7 and 9 September 1998 (because the advocate for the plaintiff had to undergo an operation), 5 November 1998, 12 November 1998, 17 December 1998 (due to the court’s lack of time and illness of the advocate for the plaintiff), 7 January 1999, 14 January 1999, 25 February 1999 (on which date the case was heard by another judge because the judge dealing with the case was ill), 18 March 1999, 22 April 1999, 13 May 1999, 2 June 1999, 17 June 1999, 1 July 1999, 6 July 1999, 9 and 10 September 1999.
On 27 April 1999 and as a result of the repeated adjournments, the applicant filed an application for certiorari and prohibition with the Supreme Court. It sought the annulment of the interim order because of the excessive delay in the proceedings before the District Court. The applicant also alleged that the court had exceeded its jurisdiction on a matter of construction involving section 9 of the Civil Procedure Law. On 27 May 1999 the Supreme Court refused the application. On the same date the applicant appealed against that decision and, by way of a letter to the President of the Supreme Court, invited him to expedite the proceedings.
Following a letter of the applicant’s lawyer, who complained about the delay in the proceedings, the President of the District Court assigned the case to a new judge on 10 June 1999.
In the meantime, on 21 April 1999, Kemtours had applied for an order of imprisonment of the applicant’s managers for contempt of the interim order of 31 March 1998. Initially fixed for 2 June 1999, the hearing was adjourned until 17 June and then until 6 July 1999, because of the direct relevance of these proceedings to those concerning the interim order. Due to the summer recess both sets of proceedings were fixed for hearing on 9 and 10 September 1999.
On 9 September 1999 the District Court decided that the hearing relating to the interim order should precede the contempt hearing. The hearing commenced on 10 September and was adjourned until 30 September and then until 8 October because the plaintiff’s advocate had failed to summon a witness whom he wished to call to give evidence. The hearing continued on 8 and 20 October, but on 27 October it was adjourned until 9 November 1999 at the request of the plaintiff’s advocate. The Court rejected the objection by the applicant’s lawyer’s on the ground that the adjournment was granted in order to permit the other party to prepare a document which would expedite the proceedings. The hearing continued on 9, 12 and 18 November 1999 and the court heard six witnesses.
On 3 December 1999, when the hearing was to be resumed, the advocate for the plaintiff requested an adjournment because his bad state of health necessitated an operation abroad. The continuation of the hearing was fixed for 22 December 1999.
On 9 December 1999, the date on which the hearing in the contempt proceedings ought to have taken place, the District Court again ordered an adjournment until 14 January 2000 and then until 24 January because the plaintiff’s advocate was hospitalised abroad. However, following a protest by the applicant’s lawyer, the court affirmed that no further request for adjournment would be granted.
On 21 January 2000 the District Court again adjourned the hearing until 28 February 2000 in order to give time to the newly appointed lawyer for the plaintiff to familiarise himself with the case. The applicant’s lawyer did not object because he stated that he had other court commitments.
The hearing resumed on 28 February 2000 with the testimonies of two witnesses, thus bringing to eight the total number of witnesses heard.
On 17 March 2000, the parties made their final addresses.
By judgment of 11 May 2000, the District Court held that the interim order was no longer in force. It declared it null and void because the plaintiff had failed to prove its allegations; it also held, at page 16 of the judgment, that the failure of Kemtour to file the Statement of Claim over a two-year period could not be attributed to the illness of the lawyer.
B. Relevant domestic law and practice
Section 4 of Cap. 6 (Civil Procedure) reads as follows:
“The court may at any time during a pending action make an order for the ...preservation, custody, sale, detention or inspection of any property being the subject of the action, or an order for preventing any loss, damage or prejudice which but for the making of the order might be occasioned to any person or property, pending a final judgment on some question affecting such person or property or pending the execution of the judgment.”
Section 9 of Cap. 6 (Civil Procedure) reads as follows:
“(1) Any order which the court has power to make may, upon proof of urgency or other peculiar circumstances, be made on the application of any party to the action without notice to the other party.
(2) Before making any such order without notice the court shall require the person applying for it to enter into a recognisance, with or without a surety or sureties as the Court thinks fit, as a security for his being answerable in damages to the person against whom the order is sought.
(3) No such order made without notice shall remain in force for a longer period than is necessary for service of notice of it on all persons affected by it and enabling them to appear before the court and object to it; and every such order shall at the end of that period cease to be in force, unless the court, upon hearing the parties or any of them, shall otherwise direct; and every such order shall be dealt with in the action as the court thinks just.
(4) Nothing in this section shall be construed to affect or apply to the powers of the Court to issue writs of execution.”
In some recent judgments the Supreme Court has ruled that the procedure for deciding an interim order which is issued on an ex parte basis is an exceptional one and must therefore be dealt with and treated as a matter of urgency. In two cases, the Supreme Court decided that such an order must be served within two to four days and be brought before the judge for trial within seven days (judgments of 25 June 1999 and 10 September 1999). The Supreme Court found that periods of 17 and 21 days to serve the order and give the opportunity to the other party to oppose it were excessive. In the case of SPE Agias Fylas v. Christoforou (judgment of 4 October 1999), the Supreme Court ruled that, if a court issued an ex parte order which is not urgent, it will be set aside for excess of jurisdiction.
The applicant complains under Article 6 § 1 of the Convention about the length of the proceedings to set aside the ex parte interim order issued on 31 March 1998 by the Nicosia District Court.
The applicant alleges a violation of Article 6 of the Convention, which, in so far as relevant, reads:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Government state that they do not purport to disagree with the applicant that proceedings concerning interim orders must be concluded as soon as possible. However, they submit that the present case raised complex factual and legal questions and required the examination of eight witnesses and of extensive documentary evidence, including 127 Government files. Most of the delays in the proceedings were caused by the bad state of health of the plaintiff’s advocates. The latter’s requests for adjournment of the hearing were granted with the consent of the applicant’s lawyer. A delay of four months during the period from 25 February 1999 to 1 July 1999 could have been avoided had the applicant’s lawyer informed the President of the District Court earlier of the problem raised by the delay in the examination of the interim order. On 1 July 1999, it was impossible to fix a hearing before September 1999 due to the summer recess. From 1 July 1999 to 17 March 2000, when the case was taken over by another judge, adjournments were not very long and were mostly due to the state of health of the plaintiff’s advocate. In three circumstances, the adjournments were justified by the need to summon a witness (eight-day adjournment), the need to prepare a written account of facts disclosed by the exhibits submitted during the proceedings (one-month adjournment) and the need to afford time to the newly appointed lawyer for the plaintiff to familiarise himself with the case (one-month adjournment).
The applicant submits that the record of the proceedings presented by the Government is incomplete. In effect, certain days are missing, including 5 May 1998 and 7 January 1999 when the judge failed to attend the hearing without giving reasons. The applicant claims that the adjournment until 8 July 1998 was unacceptable and that granted on the same date unjustified.
The applicant further claims that, despite the urgent character of the proceedings, several adjournments were granted on account of the illness of Kemtour’s lawyer or on the District Court’s own motion. The court allowed urgent proceedings to be dealt with in a very idle manner and allowed the plaintiff’s lawyer to dictate its time-table.
The applicant stresses that the appeal of 5 May 1998 was filed in time, that is two days before the date on which the case was fixed for mention and not for hearing. On 17 July 1998 no complex factual or legal issues had arisen and, at that stage of the proceedings, the District Court could not and should not examine the merits of the case. On that date, Kemtours had already submitted its evidence and it was a matter of two or three further hearings to enable the proceedings to be completed. Kemtour’s lawyer had expressly indicated that he needed three more days to cross-examine defence witnesses. Finally, the District Court declared null and void the interim order because the plaintiff had failed to prove its allegations; it also held, at page 16 of the judgment, that the failure of Kemtour to file the Statement of Claim over a two-year period could not be attributed to the illness of the lawyer.
The Court notes that the Government do not raise any objection as to the applicability of the Article 6 to the proceedings under examination, although, according to certain case-law, Article 6 does not apply to proceedings related to injunctions or interim orders. Having regard to this case-law, the question calls for consideration by the Court of its own motion.
The Court recalls that in several cases, the former European Commission of Human Rights had held that such proceedings did not determine “civil rights and obligations” within the meaning of Article 6. In the case of X v. the United Kingdom (n° 7990/77, dec. 11.5.81, D.R. 24, p. 57), the Commission considered that this provision was not applicable to an interim relief procedure before the Industrial Tribunal in the context of a dispute concerning the dismissal of an employee and the civil rights of a trade-unionist vis-à-vis his employer. In the case of X. v. Belgium (n° 8988/80, dec. 10.3.81, D.R. 24, p. 198), the Commission considered that a court which adjudicated the applicant bankrupt was acting ex officio, by virtue of an exceptional procedure, and thus could not be considered to have engaged in the determination of civil rights and obligations. The Commission reached the same conclusion concerning an interim procedure to put an end as soon as possible to works undertaken on the applicant’s house in breach of final judicial decisions (Ribstein v. France, n° 31800/96, dec. 12.4.98, unpublished).
More recently, the Court held that Article 6 did not apply to proceedings relating to interim orders (for the designation of experts) adopted prior to the proceedings on the merits (Jaffredou v. France, n° 39843/98, decision 15.12.98, and Kress v. France, n° 39594/98, decision 29.2.00). However, the Court considers that the above-mentioned case-law is not applicable in the present case. It notes that Kemtours instituted proceedings (action 3315/98) seeking damages from the applicant for the breach of the agreement which they had allegedly concluded on 3 February 1997. At the same time, Kemtours sought to obtain a decision preventing the applicant company in the meantime from interfering with Kemtours’ activities related to the said agreement and ordering it to hand over to Kemtours a number of vehicles which were still in the applicant’s possession at the time. It follows that the interim decision of 31 March 1998 partly coincided with the main action and, unless reversed by the appeal court within a short time-limit, was to affect, as it did for a substantial period, the legal rights of the parties resulting from the purported contract (cf. mutatis mutandis Boca v. Belgium, no. 50615/99, decision of 12 June 2001). In this respect, the Court cannot overlook the drastic character of the interim decision which concerned, as the applicant maintains, almost the whole of the company’s fleet of vehicles and disposed to a considerable degree of the other relevant civil action against the applicant. The combined effect of the measure and its duration caused irreversible prejudice to the applicant’s interests and drained to a substantial extent the final outcome of the proceedings of its significance.
In these circumstances, the Court considers that the interim decision in effect partially determined the rights of the parties in relation to the final claim against the applicant in civil action 3315/98, and thereby acquired the character of a “dispute” over a civil right and obligation to which Article 6 of the Convention was applicable.
The Court considers, in the light of the parties’ submissions, that the application raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
T.L. Early J.-P.
Deputy Registrar President
MARKASS CAR HIRE LTD v. CYPRUS DECISION
MARKASS CAR HIRE LTD v. CYPRUS DECISION