European Court of Human Rights

The only outstanding matter to be settled is the question of the application of Article 50 (art. 50) in the present case. Accordingly, as regards the facts, the Court will confine itself here to giving the pertinent details; for further particulars, reference should be made to paragraphs 9-71 of the above-mentioned judgment (ibid., pp. 9-28).

The Government of the United Kingdom ("the Government") had replied in writing to the said memorial on 14 January 1983.

In its judgment of 25 March 1983, the Court reserved the question of the application of Article 50 (art. 50), the written procedure on that issue not then having been concluded (paragraphs 120-122 of the reasons and point 6 of the operative provisions, pp. 44-45).

(a) on 9 March 1983, letter of 8 March from the Secretary to the Commission, with which was enclosed a further memorial of the applicants;

(b) on 10 May 1983, comments of the Government on the last-mentioned memorial;

(c) on 17 May and 1 June 1983, from the Secretary to the Commission, copies of letters of 18 April and 25 May which he had received from the applicants’ lawyers.

In his letter of 8 March, the Secretary to the Commission indicated that its Delegates had no observations on the issues arising under Article 50 (art. 50), considering them to be matters to be left to the Court’s judgment. Further particulars of the applicants’ claims and of the Government’s position relative thereto are set out below in the section "As to the law".

AS TO THE LAW

I.   INTRODUCTION

"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the present Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."

II.   "GENERAL" DAMAGES

The Government’s principal plea was that here an award of "general" damages was neither necessary nor appropriate, the Court’s judgment of 25 March 1983 itself constituting just satisfaction. They pointed out that only a small proportion of the applicants’ mail had been stopped and stressed the significant changes that had been made, in the light of the Commission’s report in this case, to the practice in England and Wales on the control of prisoners’ correspondence.

In these circumstances, the Court considers that in relation to this head of claim the judgment of 25 March 1983 constitutes in itself adequate just satisfaction for the applicants concerned, without it being necessary to afford financial compensation (see, as the most recent authority, the Zimmermann and Steiner judgment of 13 July 1983, Series A no. 66, p. 14, § 35). The same applies a fortiori to Mrs. Colne, who was not in custody and was thus not subject to the constraints of prison life.

III.  "SPECIAL" DAMAGES

A. Mr. Silver

The Government contended on various grounds that there was no basis for this claim and that, in any event, the absence of evidence of material loss rendered an award inappropriate.

B. Mr. McMahon

According to the applicant, the book contained material written by him and smuggled out of his prison in 1977. It was alleged that his eleven letters which had been stopped (see the above-mentioned judgment of 25 March 1983, p. 12, § 22) were all directed to enlisting support or obtaining fresh evidence for his campaign and that, had he been able to correspond freely, he might have secured earlier reconsideration of his case and earlier release; he claimed "special" damages of £4,500 for wrongful imprisonment for a period estimated at one year.

The Government contended that there was no basis for the claim. They did not accept that the outcome of the proceedings to obtain Mr. McMahon’s release would have been any different had the letters been allowed to be sent.

In these circumstances, the Court is not persuaded that the stopping of the letters in question did in fact delay Mr. McMahon’s release. It therefore rejects this claim.

C. Mr. Carne

The Government denied that the various letters dealt with the same matters and contended that there was no basis for this claim; in any event, an award would not be appropriate as no material loss had been shown.

Having regard to all the circumstances, the Court considers that it is not necessary to make an award in respect of this claim.

IV.   COSTS AND EXPENSES

(a)   £17,093.63 - including £750 for services rendered in connection with the Article 50 (art. 50) claim - for the fees and disbursements of Messrs. Bindman & Partners, solicitors, who initially acted for Mrs. Colne, Mr. McMahon and Mr. Carne before the Commission and subsequently had primary responsibility for the conduct of the seven joined applications before the Commission and the Court;

(b)   £16,250 for the fees of Mr. Anthony Lester, Q.C., and Mr. Michael Beloff, Q.C., who also represented the applicants before the Commission and the Court;

(c)   £780 for the fees and disbursements of Messrs. Friedman, Fredman & Co., solicitors, who represented Mr. Tuttle before the Commission and the Court;

(d)   £1,540 for the fees and disbursements of Messrs. Hughmans, solicitors, who represented Mr. Silver (or his next of kin), Mr. Noe and Mr. Cooper before the Commission and the Court.

Items (a) and (b) were subject to deduction of the amounts which the applicants had received by way of free legal aid before the Commission and, after reference of the case to the Court, in their relations with the Commission’s Delegates; items (c) and (d), on the other hand, represented costs and expenses that were not covered by that legal aid.

"... high costs of litigation may themselves constitute a serious impediment to the effective protection of human rights. It would be wrong for the Court to give encouragement to such a situation in its decisions awarding costs under Article 50 (art. 50). It is important that applicants should not encounter undue financial difficulties in bringing complaints under the Convention and the Court considers that it may expect that lawyers in Contracting States will co-operate to this end in the fixing of their fees."

(b) The Government claimed that Messrs. Bindman & Partners had charged fees for an excessive number of hours of work.

These solicitors have charged for a total of 294 hours of work, up to 1982. Bearing in mind that they had the primary responsibility for the conduct of a complex case which involved seven joined applications and by 1982 had lasted, as far as they were concerned, for some seven years, the Court does not consider this figure excessive.

(c) The Government contended that the same firm had charged at an excessive hourly rate (£40) and that a figure of £35 would be more appropriate. They referred in particular to the heavy reliance that had been placed on counsel and the fact that, in the early stages, the case had been handled by persons who were not partners in the firm. The applicants cited in support of their claim advice which they had received from professional law costs draftsmen.

The Court sees no reason to conclude that on this occasion greater reliance was placed on counsel than is customarily done when solicitors and barristers are instructed in contentious business. With regard to the hourly rate charged, the Court considers that £35 is the maximum which it should allow.

(d) The Government maintained that the sum of £62.06, for certain travel expenses in London, should be deducted from the amount claimed in respect of the disbursements of Messrs. Bindman & Partners, since in England such items would not be allowed under the relevant Supreme Court Taxing Office Practice Direction.

Although the Court is not bound by this Direction (see, mutatis mutandis, the Eckle judgment of 21 June 1983, Series A no. 65, p. 15, § 35), it agrees that these local travel expenses should not be allowed.

(e) The Government submitted that the fees charged by counsel were excessive and should be reduced by a total of £5,100. Domestic practice was referred to by the Government to support, and by the applicants to contest, this submission. The applicants also cited the award of £10,000 in respect of counsel’s fees contained in the Court’s Sunday Times judgment of 6 November 1980 (Series A no. 38, p. 15, § 30).

Here again, parallels drawn with domestic practice do not bind the Court, although they may assist it. Having regard to all the circumstances of the case - which, as the applicants rightly pointed out, was a test case raising issues of major importance for all prisoners and generating substantial documentation -, the fees in question, with the exception of the brief fees for appearance before the Court, cannot be regarded as out of proportion or excessive for the work involved. As regards the brief fees, the Court considers that £2,000 for Mr. Lester and £1,000 for Mr. Beloff would be reasonable.

(f) The Government contended that in any event there should be excluded Mr. Lester’s fees referable to the friendly settlement negotiations, on the ground that this work could have been done by the solicitors alone. The applicants stressed that the negotiations, at which the Government were very fully represented, covered consideration of far-reaching modifications to the system of control of prisoners’ correspondence.

During the proceedings before the Court, the Government themselves emphasised the significance of the changes made as a result of the applications in which the present case originated. The scale of those changes can be gauged from paragraphs 25 to 56 of the Court’s above-mentioned judgment of 25 March 1983 (pages 12-23). The Court entertains no doubt that in the circumstances the participation of counsel with experience in the matter was of great importance. It therefore rejects the Government’s plea.

(g) Finally, the Government maintained that the sum of £180 claimed in respect of the disbursements of Messrs. Friedman, Fredman & Co. should be disallowed as it had not been particularised. The applicants stated that this sum related to travel and accommodation expenses in connection with the hearing before the Commission in 1978, the exact breakdown of which was no longer available.

In the absence of further particulars, the Court disallows this item.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that the United Kingdom is to pay, in respect of the applicants’ costs and expenses referable to the proceedings before the Commission and the Court, the sum resulting from the calculations to be made in accordance with paragraph 21 of the judgment;

2. Rejects the remainder of the applicants’ claims.

Done in English and in French, the English text being authentic, at the Human Rights Building, Strasbourg, this twenty-fourth day of October, one thousand nine hundred and eighty-three.

Gérard WIARDA

President

Marc-André EISSEN

Registrar

A declaration by Mr. Thór Vilhjálmsson is annexed to the present judgment.

G.W.

M.-A.E.