AS TO THE ADMISSIBILITY OF
Application no. 983/04
by Robert DEARNLEY
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 16 May 2006 as a Chamber composed of:
Mr J. Casadevall, President,
Sir Nicolas Bratza,
Mr M. Pellonpää,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović,
Mr J. Šikuta, judges,
and Mr M. O’Boyle , Section Registrar,
Having regard to the above application lodged on 29 December 2003,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together;
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, Mr Robert Dearnley, is a British national who was born in 1951 and lives in Guildford. The respondent Government are represented by their agent, Mr D. Walton, of the Foreign and Commonwealth Office, London.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1991, the applicant and his wife entered into a form of agricultural tenancy agreement with the Guildford Borough Council which involved the applicant and his wife setting up and running a demonstration farm. Clause 13 provided that
“Any question difference or dispute which may arise between the landlord and the tenants ... not being a matter compulsorily referred to arbitration under the Agricultural Holdings Acts shall if the parties cannot settle it by agreement be referred to a single arbitrator to be appointed by the parties hereto or in default of agreement ... by the President for the time being of the Royal Institution of Chartered Surveyors on the application of the landlord or the tenants.”
After a series of disputes with the council, the applicant asked for an arbitrator to be appointed. According to the applicant, in February 1997 the President of the Royal Institute of Chartered Surveyors appointed an arbitrator. In an opinion of 18/19 June 1997, the Bar Pro Bono Unit, in stating that the case fell outside the parameters of the Pro Bono scheme, made a number of comments on the case. In particular, it noted that clause 13 of the tenancy agreement did not stipulate the Act under which the arbitration should be carried out, did not stipulate the procedure or law to be applied, and did not expressly remove the jurisdiction of the courts.
On 1 or 2 July 1997 the applicant brought proceedings against the Council in the Guildford County Court (GU 770520) for, amongst other things, misrepresentation, negligence and breach of contract. In his claim, he asked the court whether an arbitrator could consider all the points in the claim, or whether the applicant could proceed in the courts on the ground that he had entered into the contract as a result of misrepresentation or, alternatively, whether an arbitrator could deal with some claims whilst the courts dealt with the others. He also included a series of allegations of misrepresentation, breach of contract and deception and misinformation.
The court stayed the proceedings on 6 August 1997: the Government suggested that by the stay the court was declining jurisdiction over the applicant’s claims on the basis that he had agreed that those claims would be dealt with by an arbitrator. A further application by the applicant, of 11 December 1997, was dismissed on 14 April 1998, and the applicant’s appeal was adjourned on 19 October 1998 pending an application for legal aid. Leave to withdraw the appeal was granted on 3 November 1998, and on 16 June 1999 the council’s costs (which the applicant was to pay) were fixed at £2,823.90.
On 23 April 1999 the applicant and his wife and the council signed an agreement by which a series of disputes were referred to an arbitrator in accordance with the Arbitration Act 1996. The disputes were defined by reference to seven bundles. Bundle A included the matters which formed part of the applicant’s action before the county court.
Since then, it appears that the arbitrator has made two interim awards in the applicant’s favour, in February 2001 and October 2002, but that most of the matters referred to arbitration are still outstanding.
On 3 August 2002 the applicant wrote to the Guildford county court, referring to section 24 of the Arbitration Act 1996 and asking for the arbitrator to be removed. On 18 September 2002 District Judge Derbyshire declined to dismiss the arbitrator even though he accepted that the delays in the case were inexcusable. The Court has not been supplied with the judge’s reasons for that decision, although it appears from a letter from the council to the arbitrator that the judge stated that he might have been prepared to change his decision if matters did not proceed at a faster pace.
RELEVANT DOMESTIC LAW
Section 24 of the Arbitration Act 1996 provides, so far as relevant, as follows:
“(1) A party to arbitral proceedings may (upon notice ...) apply to the court to remove an arbitrator on any of the following grounds-
(a) that circumstances exist that give rise to justifiable doubts as to his impartiality; ...
(c) that he is physically or mentally incapable of conducting the proceedings or there are justifiable doubts as to his capacity to do so;
(d) that he has refused or failed-
(i) properly to conduct the proceedings, or
(ii) to use all reasonable despatch in conducting the proceedings or making an award,
and that substantial injustice has been or will be caused to the applicant.”
The Lord Chancellor is given power by section 105 to determine which courts should deal with which arbitration matters. By the High Court and County Courts (Allocation of Arbitration Proceedings) Order 1996, the Central London County Court Business List (from 2002 the Central London County Court Mercantile List) was specified as a court which could deal with general arbitration matters.
An appeal lies against the decision of the “court” to the Court of Appeal (section 24(6)).
The applicant complained under Article 6 of the Convention that his dispute with the Guildford Borough Council had not been determined within a reasonable time, that the arbitrator appointed was not independent and that the arbitration proceedings had not been in public. He also complained that the impact of the proceedings on his family and private life was incompatible with Article 8 of the Convention.
1. The applicant complained of the length of the proceedings, alleging a violation of Article 6 of the Convention. That provision reads, so far as relevant, as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Government contended that Article 6 did not apply to the arbitration proceedings as such, and that in any event the applicant had failed to exhaust domestic remedies in respect of the delay in those proceedings because he had failed to apply to the High Court (or the Central London County Court Mercantile List) for the arbitrator to be removed. They underlined that the applicant had entered into the contract with the local authority voluntarily, and that its arbitration terms (which he must be taken to have accepted) were substantially broader than the matters which were referred to compulsory arbitration under the agricultural holdings legislation. They considered that the only periods which were relevant for the calculation of the “reasonable time” requirement of Article 6 were (i) from 2 July to 6 August 1997, when the county court declined jurisdiction over the applicant’s claim, and (ii) from 3 August 2002, when the applicant wrote to the county court asking for the arbitrator to be removed, until 18 September 2002 when a district judge refused to order the removal. Those periods did not amount to more than two or three months, and were compatible with Article 6. The Government excluded from their calculations the period from 11 December 1997 to 3 November 1998 as the application made by the applicant for the stay to be lifted was, in effect, a determination of whether the applicant’s claim should be re-opened. The Government contended that even if the whole of the period from 2 July 1997 was taken into consideration, the vast majority of the delay had been caused by the applicant and the arbitrator, for whom the Government were not responsible.
The applicant maintained his arguments. He listed the associations and individuals he had contacted for help, and complained that no courts had dealt with his complaint that the original tenancy contract has been entered into under duress, misrepresentation and financial inducements by the council. He did not accept that arbitration proceedings fell outside the scope of Article 6 because the Arbitration Act 1996 was an Act of the United Kingdom Parliament, which also enacted the Human Rights Act 1998. The applicant did not accept the arguments frequently employed in favour of arbitration – informality, reduced costs – as the arbitration proceedings had cost him very large amounts of money without any substantial progress.
The Court recalls that the requirement of exhaustion of domestic remedies set out in Article 35 of the Convention applies to all individual applications under the Convention, including complaints concerning the length of civil proceedings. However, as for other complaints, the only remedies which that Article requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see in this connection Vernillo v. France, judgment of 20 February 1991, Series A no. 198, § 27). As regards the length of the arbitration proceedings, that is, from 23 April 1999 at the latest, when all matters then pending before the county court were remitted to the arbitrator under the Arbitration Act 1996, until the present, the Court notes that a party may apply to the High Court or the London County Court Business List for the arbitrator to be removed if he has refused or failed to use reasonable despatch in conducting the proceedings. In the context of arbitration proceedings such as in the present case, where the domestic legislation provides for regulation of private references to arbitration, an application to a court for a dilatory arbitrator to be removed can be accepted as an appropriate remedy to be exhausted in respect of a complaint of the length of arbitration proceedings. It has been open to the applicant at all times since 23 April 1999 to make a valid application under section 24 of the Arbitration Act 1996. He has not done so. The only attempt he appears to have made was by letter in August 2002, when he asked the Guildford county court to remove the arbitrator. In that letter, he referred to section 24, but the county court, as the Government pointed out, had no power to grant the application as it did not fall within the definition of “court” for the purposes of the Arbitration Act 1996. Further, although the judge did not decline jurisdiction, he did not purport to remove the arbitrator, either. It would therefore have been open to the applicant to appeal the decision of 18 September 2002.
The Court therefore considers that as regards the period from 23 April 1999 to the present, given the procedural opportunity available to the applicant to apply to the courts with a valid application to remove the arbitrator, he has failed to exhaust the domestic remedies available to him to complain about the length of the proceedings.
As to the question of whether the proceedings were dealt with within a “reasonable time” during the initial phase of the proceedings, from 1 or 2 July 1997 to 23 April 1999, the Court notes that during that period, the applicant made a number of applications to the court, each of which was dealt with promptly: (i) his summons of 1 or 2 July 1997 was stayed on 6 August 1997; (ii) his application of 11 December 1997 was dismissed on 14 April 1998, (iii) his appeal against the decision of 14 April 1998 was adjourned on 19 October 1998, and on 3 November 1998 the applicant was given leave to withdraw it. The Court finds nothing in this period – whether the individual applications are considered separately or together – to suggest that the overall period of 21 months was not compatible with the “reasonable time” requirement of Article 6 of the Convention.
It follows that, even assuming that the State remains under an obligation to ensure compliance with the “reasonable time” requirement of Article 6 where the parties to a civil dispute have agreed to a voluntary arbitration process, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be declared inadmissible pursuant to Article 35 § 4.
2. The applicant, referring to Articles 6 and 8 of the Convention, also complains about other aspects of the arbitration proceedings and about an allegedly disproportionate interference with his private and family life.
The Court has considered the applicant’s complaints as they have been submitted, and notes in particular that it would have been open to the applicant to apply to the courts for removal of the arbitrator on grounds of lack of impartiality, and that the fact that the proceeding before the Guildford county court are still pending is an adjunct of the arbitration proceedings referred to above. It finds that the remainder of the application is manifestly ill-founded within the meaning of Article 35 § 3.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention and declares the application inadmissible.
Michael O’Boyle Josep Casadevall
DEARNLEY v. THE UNITED KINGDOM DECISION
DEARNLEY v. THE UNITED KINGDOM DECISION