AS TO THE ADMISSIBILITY OF
Application no. 55331/00
by Jose Manuel DE PONTE NASCIMENTO
against the United Kingdom
The European Court of Human Rights (Third Section), sitting on 31 January 2002 as a Chamber composed of
Mr G. Ress, President,
Mr I. Cabral Barreto,
Sir Nicolas Bratza,
Mr L. Caflisch,
Mr R. Türmen,
Mr B. Zupančič,
Mrs H.S. Greve, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 15 December 1999 and registered on 2 March 2000,
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, Jose Manuel de Ponte Nascimento, is a Portuguese national, who was born in 1966, and lives in Madeira. He is represented before the Court by Mr Andrew Christodoulou, a solicitor, and Mr David Williams, counsel, both practising in London. The respondent Government are represented by their agent, Ms J Foakes of the Foreign and Commonwealth Office, London.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 4 June 1994, the applicant was knocked off his bicycle by a car. He started proceedings against the driver of the car on 3 June 1997. The applicant returned to live in Madeira. On 22 October 1997, the Clerkenwell County Court ordered the applicant to file further medical evidence in support of his claim within 28 days, failing which any particulars of injury not substantiated by a medical report would be struck out. Further medical evidence was filed on behalf of the applicant, some within 28 days and some later. The defendant to the proceedings made an application that the particulars of injury be struck out for failure to comply with the order of 22 October 1997. The application was heard on 29 January 1998 by District Judge Southcombe, who struck out the particulars of injury. The practical effect of striking out the particulars of injury was that the applicant could no longer claim general damages or damages for loss of earnings, which represented by far the major part of his claim.
The applicant appealed against the decision of District Judge Southcombe. On 19 June 1998, the appeal was heard by Recorder Knowles. She dismissed the appeal. The applicant applied to the Court of Appeal for leave to appeal.
The hearing began on 15 April 1999 and continued on 22 April 1999. The Court of Appeal reserved its judgment. On 15 June 1999, the Court of Appeal handed down a judgment refusing permission to appeal. Each of the three Lord Justices of Appeal gave a separate judgment.
Sir Iain Glidewell considered that the Recorder had applied the proper test and exercised her discretion correctly, and that permission to appeal should accordingly be refused.
Lord Justice Clarke considered that the District Judge and the Recorder had failed to apply the relevant legal principles correctly, and that permission to appeal should be granted, because otherwise no court would have considered the exercise of its discretion on correct principles.
Lord Justice Chadwick considered that the Recorder had identified the applicable principles but failed to apply them, but that this failure did not raise any question of principle within the terms of either paragraph 20 of the practice direction of 17 November 1998 or paragraph 2.19.1 of the consolidated practice direction of 26 April 1999 (see below). He further considered that the case was not one which for some other reason (practice direction of 17 November 1998), or some other compelling reason (consolidated practice direction of 26 April 1999), should be considered by the Court of Appeal. Lord Justice Chadwick stated at pp. 39-40:
“Personal injury litigation should not be conducted on the basis that the rules peculiar to it can be treated as of no importance. To do so is to put at risk one of the objects which those rules are intended to promote; that is to say, that the medical evidence on which the plaintiff relies can be properly assessed by the defendant at as early a stage as possible. Failure to make early disclosure of the plaintiff’s medical condition puts a fair trial at risk. I can see no basis upon which to hold that justice demands that the defendant should suffer the risk that any trial which could now be held would be less than fair. On the contrary, it seems to me that the balance of justice lies in upholding the orders which have been made.”
Lord Justice Chadwick concluded that permission to appeal should be refused. He declined to take a view on the merits which he regarded as finely balanced.
B. Relevant domestic law
On 17 November 1998, Lord Woolf, Master of the Rolls, issued a practice direction relating, inter alia, to leave to appeal to the Court of Appeal (reported at  1 Weekly Law Reports 2). Practice Directions do not have formal legal effect but are followed by the judiciary, representing as they do the collective view of senior judges and, in time, the terms of Practice Directions become embodied in decisions of the higher courts, which do have binding effect. Paragraph 10 of the practice direction provided, under the heading “The General Test for Leave”:
“The general rule applied by the Court of Appeal, and thus the relevant basis for first instance courts deciding whether to grant leave, is that leave will be given unless an appeal would have no realistic prospect of success.”
Paragraph 20 of the practice direction contained new guidance, in the following terms (so far as material):
“Where there has already been one unsuccessful appeal to a court ... against the decision being challenged, for example from a District Judge to a Circuit Judge or from a Master to a High Court Judge, and the application is for permission for a further appeal to the Court of Appeal, a more restrictive approach to the test for permission to appeal should be adopted. Permission should be granted only if the case raises an important point of principle or practice or the case is one which for some other compelling reason should be considered by the Court of Appeal.”
On 26 April 1999, the Court of Appeal issued a practice direction consolidating, with some amendments, all of the principal practice directions which applied to proceedings in the Court of Appeal (Civil Division). Paragraphs 10 and 20 of the practice direction of 17 November 1998 were reproduced in similar terms in the consolidated practice direction, with one significant change: in paragraph 20 (new paragraph 2.19.1), the word “important” was omitted from the final sentence.
The applicant complains under Article 6 § 1 of the Convention that although a majority of the Court of Appeal acknowledged that the court below had failed to apply correct legal principles to the determination of the application, the Court of Appeal, applying the practice direction of 17 November 1998, refused to give him permission to appeal.
The applicant complains under Article 6 § 1 that he was denied a fair hearing because the decision to refuse to grant permission to appeal was arbitrary and unfair and/or a denial of the right to access to court.
Article 6 § 1 provides as relevant:
“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...”
The Government dispute the admissibility of the complaint, contending that Article 6 does not entitle an individual to a right of appeal in particular categories of cases, let alone a right to a second appeal. Further, the Government contend that the applicant’s civil rights and obligations were not determined by the decision of the Court of Appeal because it did not take any final decision on the merits of the applicant’s case and his claim for damages in respect of his personal injury continued against Ms Kerrigan. If, contrary to these two submissions, the Court were to conclude that Article 6 § 1 is engaged, the Government contend that there is no breach of Article 6 § 1 because the restrictions which were imposed upon the applicant’s right of appeal were reasonable and proportionate.
The applicant claims that although Article 6 § 1 does not provide for a right of appeal, if such a right is provided its exercise must be in compliance with Article 6 § 1. The applicant asserts that the Court of Appeal did determine his civil rights and obligations because the Court of Appeal’s decision prevented him from pursuing the defendant for damages in respect of his physical injuries and his loss of earnings. The applicant contends that the Court of Appeal’s judgment does not comply with Article 6 § 1 because the failure to intervene once the majority of the court had concluded that the earlier courts failed to apply the legal principles correctly was arbitrary and unfair.
The Court must first decide whether the decision of the Court of Appeal to refuse permission to appeal was a determination of the applicant’s civil rights and obligations. The Court observes that the Court of Appeal, when considering whether to grant permission, spent two days hearing oral argument, including argument on the merits of the case, and two of the three judges engaged in a detailed analysis of the merits of the application in their judgments. Further, the Court observes that the effect of the decision of the Court of Appeal was to end the greater part of the applicant’s claim. The Court concludes that such a detailed consideration of the case was a determination of the applicant’s “civil rights and obligations” within the meaning of the Article 6 § 1.
Next, the Court must decide whether the Court of Appeal’s refusal to grant permission to appeal in this case was arbitrary, unfair or a denial of the right of access to court. The Court recalls that its case-law establishes that whilst the Convention does not provide any right to an appeal in civil cases, if a right of appeal is provided in domestic law, Article 6 § 1 applies to such appellate procedures (see the Delcourt v. Belgium judgment of 17 January 1970, Series A no. 11, § 25).
The Court recalls that the right of access to an appeal court is not absolute and that the State, which is permitted to place limitations on the right of appeal, enjoys a certain margin of appreciation in relation to such limitations (see the Brualla Gomez de la Torre v. Spain judgment of 19 December 1997, Reports of Judgments and Decisions 1997-VIII). The Court reiterates, however, that such limitations must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, among other authorities, the Levages Prestations Services v. France judgment of 23 October 1996, Reports 1996-V, § 40). The Court recalls that the conditions of admissibility of an appeal on points of law may be stricter than for an ordinary appeal and that Contracting States have a greater latitude for imposing restrictions upon the admissibility of appeals in cases concerning civil rights and obligations than in criminal cases.
The Court considers that, taking into account the margin of appreciation to be afforded to the United Kingdom, the requirements of the consolidated Practice Direction, as it applied in the applicant’s case, that he would be granted leave for a second tier appeal only if it had a realistic prospect of success and raised a point of principle or disclosed some other reason why it should be heard, were reasonable and proportionate measures taken in pursuit of the fair and efficient administration of justice.
The Court notes that in any event, and contrary to the applicant’s contentions, only one of the three judges (Lord Justice Clarke) concluded that the earlier court had reached the incorrect result on the merits. Sir Ian Glidewell held that the Recorder had applied the correct legal principles and was of the view that permission should be refused because the appeal had no realistic prospect of success. Lord Justice Chadwick was of the view that the prospective appeal did not raise an issue of principle and that the defendant’s right to a fair trial might be compromised if permission to appeal were granted. Lord Justice Chadwick concluded that, in the light of this, he would not take a view on the merits which he regarded as finely balanced.
The Court’s role under Article 6 § 1 is not to assess the facts which led the domestic courts to adopt one decision rather than another (see the Tolstoy v United Kingdom judgment of 23 June 1995, Series A no 316-B, § 59). Article 6 § 1 does not guarantee a particular outcome in any case or that the “right result” will be reached by the domestic courts. In the present case, the Court of Appeal’s decision to refuse permission to appeal because the majority of the court thought that the application either did not have a realistic prospect of success or that the balance of justice lay in upholding the earlier judgment was not arbitrary or unfair.
It follows that the application is inadmissible as being manifestly ill-founded and must be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Vincent Berger Georg
DE PONTE NASCIMENTO v. THE UNITED KINGDOM DECISION
DE PONTE NASCIMENTO v.THE UNITED KINGDOMDECISION