European Court of Human Rights

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 49589/99
by Thomas Patrick TAYLOR
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 10 June 2003 as a Chamber composed of

         Mr     M.Pellonpää, President,
         Sir     Nicolas Bratza,
         Mrs   V.Strážnická,
         Mr     R.Maruste,
         Mr     S.Pavlovschi,
         Mr     L.Garlicki,
         Mr     J.BorregoBorrego,judges,
and Mr M.O’Boyle, Section Registrar,

Having regard to the above application lodged on 8 April 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 FACTS

The applicant,  Thomas Patrick Taylor, is aUnited Kingdomnational, born in 1933 and living in the Isle of Man. He is represented before the Court by Mr M. Spragg, a lawyer practising in London.

A.  The circumstances of the case

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

In 1994 the Serious Fraud Office ("SFO") was investigating a fraud involving US $8 million. The money obtained from the victim had passed through the hands of the applicant who was a solicitor practising in the Isle of Man or through a company with which the applicant was connected.

By letter dated 4 May 1994, a lawyer employed by the SFO made a formal request to the Attorney-General for the Isle of Man for his assistance in the investigation of the fraud. The letter requested the Attorney-General to exercise his powers to summon the applicant for an interview about the transactions. It presented the facts as they appeared to the SFO and depicted the applicant’s part in the transaction in such a way as to suggest that the SFO suspected him of being a party to the fraud. The letter concluded by stating that, given the facts outlined, the SFO considered the use by the Attorney-General of the relevant power to summon to be justified and desirable and it invited the Attorney-General to authorise that SFO lawyer and a police officer to exercise those powers on his behalf.

On 17 May 1994, the SFO lawyer and a colleague called upon Mr R who worked for the Law Society in the administration of the solicitors’ compensation fund to talk about the transaction which had given rise to a claim by the victim against the fund. The SFO lawyer made a file note of the interview which recorded Mr R’s view that the applicant should be struck off the roll of solicitors and the SFO lawyer’s contention that the applicant was a co-conspirator. On 3 June 1994 the Attorney-General sent the applicant a formal notice requiring him to attend for an interview but the applicant could not attend due to illness

Two individuals were indicted on charges of conspiracy to defraud and eventually convicted. A third suspect was in the United States and died before an application for extradition had run its course. The applicant, despite the suspicions noted above, was not charged.

One of the defendants had asked the applicant to give evidence on his behalf and, consequently, gave the applicant a file of documents which included “unused material” which had been disclosed, in accordance with recently established obligations, by the prosecution. The file included a copy of the letter of 4 May 1994 to the Attorney-General from the SFO and the file note of the meeting between the SFO lawyer and Mr R.

The applicant therefore commenced an action for libel against the SFO, the Law Society, the SFO lawyer and Mr R. The applicant alleged that the letter contained a libel published by the SFO and the SFO’s lawyer to the Attorney-General, that the file note contained a libel published by the SFO and the SFO’s lawyer to Mr R as well as a libel published by Mr R to the SFO’s lawyer and that both documents had been published by the SFO’s lawyer by their disclosure to the relevant defendant’s solicitor.

All four defendants took out summonses to strike out the action as an abuse of process. On 26 July 1996, the High Court judge struck out the action on the ground that the disclosure of the two documents to the defendant’s solicitors was subject to an implied undertaking that they would not be used for any purpose other than that defendant’s defence. The applicant could not, therefore, use them as the basis of a libel action without the leave of the court.

The applicant appealed. Shortly before his appeal was heard, the case of Mahon v. Rahn ([1998] QB 424) was decided by the Court of Appeal. That court found that material disclosed by the prosecution to a defendant in criminal proceedings, whether obtained by compulsion or voluntarily, was not subject to any implied undertaking analogous to that which already existed in relation to material discovered in civil proceedings.

The Court of Appeal dismissed the applicant’s appeal in June 1997. It regarded the Mahon v. Rahn decision as a binding authority which obliged it to hold that the grounds upon which the High Court had struck out the action could not be sustained. But the court accepted the argument that the proceedings could be struck out as a result of an immunity from suit because the documents were brought into existence for the purposes of a criminal investigation.

The applicant appealed to the House of Lords on the ground that the Court of Appeal had extended the principle of immunity from suit beyond its proper sphere. The respondents, on the other hand, argued that the Mahonv. Rahn case had been wrongly decided and that the Court of Appeal judgment ought also to be upheld on the basis of the “implied undertaking”.

On 29 October 1998, the House of Lords rejected the applicant’s appeal and upheld the respondents’ (Taylor v. the Serious Fraud Office [1999] A.C. 177). The five Law Lords were unanimous that the documents disclosed by the prosecution to the defence were disclosed subject to an implied undertaking to the court not to use the documents for any other purpose other than the conduct of the defence. The applicant’s attempt to do so was accordingly an abuse of process and had been rightly struck out on that ground. Four of the Law Lords further upheld the view of the Court of Appeal  that the statements relied on by the plaintiffs to found the action were protected by absolute immunity and the proceedings were rightly struck out on that ground as well.

Lord Hoffmann considered that the two principles in debate were well established and that the question was rather the extent of their reach.

In particular, the first question was whether the public interest in the administration of justice required the implied undertaking (which had originated in the law of discovery in civil proceedings) to be applied to documents disclosed by the prosecution to the defence in criminal proceedings. Lord Hoffman considered that the Court of Appeal had erred in Mahon v. Rahn and concluded that the disclosure of documents by the prosecution as unused material under its common law obligations generated an implied undertaking that they would not be used for any collateral purpose. In support of this implied undertaking, he cited the interests (protection of privacy and confidentiality) of those giving statements to the police and to other investigatory bodies and of those mentioned in the statements.

Considering the arguments raised that there were other means to protect people who might be adversely affected by the collateral use of disclosed documents, such as the rules of public interest immunity and qualified privilege, he observed that the first was not designed to protect the same interests and could give only accidental protection and that qualified privilege also did not protect the privacy of persons mentioned in the statements and, as stated by Fry LJ in Munster v. Lamb (1883) 11 QBD 588, did not protect those involved in court proceedings from the harassment of litigation.

Although it was not therefore strictly necessary to consider the question of the application of an immunity from suit, Lord Hoffman went on to consider the matter on the basis that it was necessary to know whether, if the statements had been read out in open court, they could have been relied on thereafter for the purposes of a libel action. The immunity from suit in question was for those taking part in a trial (judges, advocates and witnesses) for anything written or spoken during the proceedings. It was absolute and could not be defeated even by proof of malice. The novel question was whether it could be extended to statements made to or by investigators for the purposes of a criminal investigation.

Lord Hoffman recalled that the general rule was that the extension of absolute privilege was to be viewed with the “most jealous suspicion, and resisted, unless its necessity is demonstrated”. He considered that it had been shown to be necessary for the administration of justice to extend the immunity from suit to those assisting investigators and to investigators themselves, and that the protection would apply to all statements which could be fairly said to be part of the process of investigating a crime or possible crime with a view to prosecution or a possible prosecution. It was, however, limited to actions in which the alleged statement constituted the cause of action (defamation) and so would not apply to an action for malicious prosecution.

He stated that the immunity:

“... is designed to encourage freedom of speech and communication in judicial proceedings by relieving persons who take part in the judicial process from the fear of being sued for something they say. It is generated by the circumstances in which the statement was made and it is not concerned with its use for any purpose other than as a cause of action.”

He went on to state that the test was a strict one and to fall within the immunity it had to be shown that the immunity was “necessary for the administration of justice”. It would not therefore cover “irrelevant and gratuitous libels”, statements extraneous to the investigation but could not be confined only to out-of-court statements of persons who were subsequently called as witnesses as the person had to know at the time at which he spoke whether or not the immunity attached. The same reasoning and necessity applied to the position of investigators:

“It would be an incoherent rule which gave a potential witness immunity in respect of the statements which he made to an investigator but offered no similar immunity to the investigator if he passed that information to a colleague engaged in the investigation or put it to another potential witness. In my view it is necessary for the administration of justice that investigators should be able to exchange information, theories and hypotheses among themselves and to put them to other persons assisting in the inquiry without fear of being sued if such statements are disclosed in the course of the proceedings.”

He noted that the implied undertaking and immunity were related:

“The implied undertaking prevents, as far as possible, the publication or dissemination of disclosed documents and therefore restricts the extent to which damage can be caused by defamatory statements which they may contain. In this sense, the injustice which may be caused by the fact that such defamatory statements are protected by the immunity is reduced.”

He observed as to the risk to the applicant from the statements concerned:

“<he> might have taken some comfort from the fact that the documents which showed that he had been under suspicion could go no further than the files of the SFO and <F.>‘s solicitors. They could not have damaged his reputation in the outside world. Instead, he chose to bring libel proceedings and (apparently due to the thoughtlessness of his solicitors) put the statements into the public domain by quoting them in extenso on a specially endorsed writ.”

Lord Hope similarly commented on the relationship between the two principles:

“I see the two solutions [implied undertaking and immunity] as complementary to each other. If the absolute privilege and the consequent immunity are to be kept within limits which are necessary for the administration of justice, they must be accompanied by a rule which restricts the use and dissemination of disclosed material. The purpose of the immunity is to ensure the integrity of the investigation process. The disclosure should extend no wider that is necessary to serve the public interest in the administration of justice. It should not be accompanied by risks to the good name of those who are not on trial from whom the protection of defamation proceedings has been removed by the immunity. So a restriction on the release and collateral use of the disclosed material by means of the implied undertaking can be seen as a necessary balance against possible harm which might flow from the absolute nature of the immunity.”

COMPLAINTS

The applicant complains under Articles 6, 8 and 13 of the Convention about the limitations placed on his access to court because of the absolute immunity from suit of the defendants and the implied undertaking in respect of the relevant documents.

THE LAW




  The applicant complains of a denial of access to court invoking Article 6 § 1 of the Convention which provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

A.  The parties’ submissions

The Government accepted that Article 6 was applicable in the present case on the same basis as in Z. and Others v. the United Kingdom, (no. 29392/95, [GC], ECHR 2001-V), namely, there was at the outset of the proceedings a genuine and serious dispute as to whether domestic law permitted a claim for damages to be maintained in the circumstances. The legal issues arising from that dispute were litigated in three instances and the domestic courts balanced the competing considerations of public policy in a manner indistinguishable from the duty of care analysis in issue in the Z. and Others case. It was irrelevant, or of minimal importance, that the word “immunity” was used by the domestic courts. The courts were determining the scope of domestic substantive law and their interpretation could not be regarded as disclosing a restriction on access to court. In any event, the principle of implied undertaking which was found to apply to the documents and to lead to the claim being struck out as an abuse was the principal ground for striking out the claim and could not be described as an immunity. Further, both the implied undertaking doctrine and immunity pursued legitimate aims and were proportionate, as shown by the full and careful reasoning set out in the Court of Appeal and House of Lords judgments. In particular, the effect of the restriction was designed to be no greater than the needs of criminal justice required.

The applicant argued that the effect of the decisions of the Court of Appeal and House of Lords was to deny him any means of having the evidence arising in his claim tested in court. While the Government appeared to have accepted that the statements complained about were capable of being defamatory, there was no possibility of requiring the defendants to justify the statements made as required by the law of defamation. The procedure adopted by the courts had therefore denied the applicant the possibility of having his claim adjudicated upon and deprived him of the opportunity to protect and defend his personal and professional reputation.  This was inconsistent with his right to a fair trial. He submitted that there was no justification for such an absolute procedural rule, either for the prevention of disorder or crime or to protect the rights of others. If there was a need for some privilege to attach to such statements, a defence of qualified privilege would be proportionate, as it could be defeated by evidence of malice. As regards the assertion that the defamatory statements were of limited importance as they were restricted to investigation documents, he submitted that the suspicions had nonetheless been voiced to the authorities on the Isle of Man where he lived and carried on his profession and could not be regarded as anything other than damaging.

B.  The Court’s assessment

1. Applicability of Article 6 § 1 of the Convention

The Court recalls its constant case-law to the effect that “Article 6 § 1 extends only to contestations (disputes) over (civil) ‘rights and obligations’ which can be said, at least on arguable grounds, to be recognised under domestic law; it does not itself guarantee any particular content for (civil) ‘rights and obligations’ in the substantive law of the Contracting States” (see James and Others v. the United Kingdom,judgment of 21 February 1986, Series A no. 98, p. 46, § 81; Lithgow and Others v. the United Kingdom, judgment of 8 July 1986, Series A no. 102, p. 70, § 192; the Holy Monasteries v. Greecejudgment of 9 December 1994, Series A no. 301, p. 37, § 80). It will however apply to disputes of a “genuine and serious nature” concerning the actual existence of the right as well as to the scope or manner in which it is exercised (Benthem v. the Netherlandsjudgment of 23 October 1985, Series A no. 97, p. 15, § 32).

In the present case, the applicant was claiming damages on the basis of  libel, a tort in English law which is largely developed through the case-law of the domestic courts. His case was rejected by the High Court on 26 July 1996 on the basis that the allegedly libellous material was subject to an implied undertaking of non-disclosure and could not be used for the collateral purpose as the basis of a libel action. The Court of Appeal dismissed his appeal, but on the different ground that action could not proceed since the documents were protected by an immunity as they had been brought into existence for the purposes of a criminal investigation. On  29 October 1998, the House of Lords rejected the applicant’s appeal finding that an implied undertaking had applied to the documents but also going on to hold by a majority that they would also have been covered by an absolute immunity from suit.

Given the fact that the issues were litigated to the House of Lords and disclosed some diversity of interpretation of domestic law, the Court is satisfied that at the outset of the proceedingsthere was a serious and genuine dispute about the existence of the right asserted by the applicant under the domestic law of negligence. In such circumstances, the Court finds that the applicant had, on at least arguable grounds, a claim under domestic law.

 Article 6 was therefore applicable to the proceedings brought by the applicant. The Court must therefore examine whether the requirements of Article 6 were complied with in those proceedings.

2.  Compliance with Article 6 § 1 of the Convention

The Court, in the Golder case, held that the procedural guarantees laid down in Article 6 concerning fairness, publicity and expeditiousness, would be meaningless if there were no protection of the pre-condition for enjoyment of those guarantees, namely, access to court. It established this as an inherent aspect of the safeguards enshrined in Article 6, referring to the principles of the rule of law and the avoidance of arbitrary power which underlie much of the Convention (see Golder v. the United Kingdom, judgment of 21 February 1975, Series A no. 18, pp. 13-18, §§ 28-36).

 Article 6 § 1 “may ... be relied on by anyone who considers that an interference with the exercise of one of his (civil) rights is unlawful and complains that he has not had the possibility of submitting that claim to a tribunal meeting the requirements of Article 6 § 1” (see LeCompte, Van Leuven and De Meyere v. Belgium, judgment of 23 June 1981, Series A no. 43, § 44). Where there is a serious and genuine dispute as to the lawfulness of such an interference, going either to the very existence or the scope of the asserted civil right, Article 6 § 1 entitles the individual “to have this question of domestic law determined by a tribunal” (see Sporrong and Lönnroth v. Sweden,judgment of 23 September 1982, Series A no. 52, § 81; see also TreTraktörer v. Sweden, judgment of 27 July 1989, Series A no. 159, p. 18, § 40).

The right is not however absolute. It may be subject to legitimate restrictions, as, for example, statutory limitation periods, security for costs orders, regulations concerning minors and persons of unsound mind (see Stubbings and Others v. the United Kingdom, judgment of 22 October 1996, Reports 1996-IV, pp. 1502-3, §§ 51-52; TolstoyMiloslavsky v. the United Kingdom, judgment of 13 July 1995, Series A no. 316-B, pp. 80-81, §§ 62-67; the Golderjudgment, cited above, p. 19, § 39). Where the individual’s access is limited either by operation of law or in fact, the Court will examine whether the limitation imposed impaired the essence of the right and, in particular, whether it pursued a legitimate aim and there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (Ashingdane v. the United Kingdom, judgment of 28 May 1985, Series A no. 93, pp. 24-25, § 57). If the restriction is compatible with these principles, no violation of Article 6 will arise.

 It is contended by the applicant in this case that the decisions of the domestic courts striking out his claims in libel on the basis of an implied undertaking or on an immunity from suit deprived him of access to court as they operated as exclusionary rules, or immunities from liability, which prevented his claim from being decided on the facts.  The Government argued, on the other hand, that the courts were applying principles of substantive law, drawing a comparison with Z. and Others v. the United Kingdom, in which no restriction of access arose where the courts, having balanced competing considerations of public policy, struck out actions on the ground that no duty of care was owed.

The Court observes, firstly, that it appears to be accepted by the Government that the statements on which the applicant based his claims were capable of being defamatory. The applicant’s claims were not struck out on the basis of any missing ingredient in the basic cause of action but rather because the documents, alleged to contained libellous statements, could not be used to found the action. To the extent that there was any immunity in issue in the case, it attached to the documents rather than to any particular person or, as in the case of parliamentary immunity, because of the status or office of the person concerned (see A. v. the United Kingdom, no. 35373/97, ECHR 2002-X).

 The application of the implied undertaking principle was extended from the rules applying to discovery in civil proceedings and may be regarded as akin to a procedural or evidential bar on the applicant’s claims proceeding. As regards the immunity of suit, this was derived from the protection given to statements made as part of an investigation and trial process. While the domestic courts used the term immunity, it may also be regarded as a form of privilege. The Court has previously had occasion to consider types of privilege arising in defamation proceedings in the United Kingdom, in Fayed v. the United Kingdom (judgment of 21 September 1994, Series A no. 294-B) which concerned privilege attaching to the reports of Department of Trade Inspectors and in A. v. the United Kingdom (cited above) which examined the absolute privilege enjoyed by Members of Parliament. In both cases, the Court did not find it necessary to decide whether the privilege operated as part of the substantive content of the right to sue in defamation but proceeded on the basis, since similar issues of legitimate aim and proportionality arose under Article 8, that Article 6 § 1 applied for the purposes of the case before it (Fayed, § 67, A. v. the United Kingdom, § 65). The Court proposes to adopt the same approach in the present case, noting that the courts found that the implied undertaking and immunity from suit were related in their function.

Treating both aspects as a restriction on the applicant’s access to court, the Court has therefore examined whether they may be regarded as pursuing a legitimate aim and demonstrating a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.

As regards the aim, the Court recalls the explanations of the House of Lords which upheld the implied undertaking attaching to the documents as necessary to protect the privacy and confidentiality of statements made to the police and other investigatory bodies and the immunity of suit attaching to the statements made in the course of the criminal and judicial investigation as necessary for the administration of justice. The applicant has not contested that these are legitimate aims, his arguments taking issue principally with the proportionality of the  measures.

On that point, the Court observes that the statements were made in the course of investigation of serious fraud offences. They were not disseminated in any public manner and were not in fact used in the criminal proceedings. It is not asserted that anyone outside the prosecution, the investigation authorities and the solicitors for the defendants at the trial were made aware of their contents, at least prior to the applicant’s solicitors publication in the context of his own libel proceedings. The applicant has argued that it was sufficiently damaging to his position that the authorities on the Isle of Man, a small island, would have been aware of the allegations made against him. It is not apparent however that it can be assumed that the allegations were made generally known by the Attorney-General of the Isle of Man to any others on the island, in an official capacity or otherwise. The Court is satisfied therefore that the statements had a very restricted circulation.

The reasons given by the House of Lords for applying both the implied undertaking and the immunity from suit in this case provide, in the Court’s view, convincing justification for both rules as necessary to encourage freedom of speech and communication in the judicial process. As both Lord Hoffman and Lord Hope commented, the rules are complementary - the implied undertaking against disclosure restricting the dissemination of potentially defamatory statements which required immunity as they were given in the course of a trial and investigation. The immunity was also held to be confined to what was necessary for the purpose of protecting the administration of justice and therefore did not extend to “irrelevant and gratuitous libels” which could be regarded as extraneous to the investigation.  Nor did it prevent actions for malicious prosecution where the cause of action consisted in abusing legal process by, maliciously and without reasonable cause, setting the law in motion against the plaintiff, even where an essential step was a statement made to a prosecuting authority.

The applicant submitted that the administration of justice could equally be served by providing for qualified privilege which would allow a claim to proceed where malice could be shown. Lord Hoffman however rejected that argument, noting that this would not provide any protection of privacy to the persons mentioned in the statements as currently offered by the implied undertaking rule. Moreover, as previous authorities had emphasised, it was important that those participating in court proceedings, whether judge, lawyer or witness, were not at risk of harassment by any vexatious proceedings. That risk therefore had to be avoided to protect the confidence and freedom with which persons carried out their respective functions in court.

The Court finds in the circumstances that the domestic courts carried out a thorough and careful balancing of the policy reasons for and against the immunity attaching to the allegedly defamatory statements made in this case.

 Accordingly, any restriction on the applicant’s access to court may be regarded as proportionate and compatible with the spirit of Article 6 § 1 of the Convention. This part of the application must therefore be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

 

 




  The applicant invokes Article 8 of the Convention in respect of his inability to sue in defamation in this case.

Article 8 of the Convention provides:

“1.  Everyone has the right to respect for his private ... life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Government submitted that the fact that the applicant was unable to claim damages for defamation in circumstances which the domestic courts found would amount to an abuse of process (in breach of an implied undertaking not to disclose documents used in criminal proceedings) or would be subject to a defence of absolute immunity or privilege engaged no aspect of the applicant’s private life and showed no lack of respect for private life. To the extent that there was any interference, it was plainly justified for the reasons submitted in answer to the complaints raised under Article 6 (see above).

The applicant submitted that he had been prevented from protecting his personal and professional reputation and removing the risk to his professional practice and prosperity. This interference with his private life was unjustifiable and disproportionate, as by the operation of the procedural rules in question he was without any remedy and had to suffer damage, or the real risk of damage, without redress. The efficient and fair exercise of investigative powers did not require this injustice, inter alia, as it would be possible to replace an absolute rule with one of qualified privilege that could be overcome by proof of malice.

The Court has already examined above under Article 6 § 1 the central issues of legitimate aim and proportionality which arise in relation to the applicant’s complaints under Article 8. It follows from its reasoning on that aspect of the applicant’s complaints that any interference with his right to private life under Article 8 § 1 of the Convention must be regarded as justified in terms of the second paragraph, namely, as necessary in a democratic society for the prevention of crime and disorder or the protection of the rights and freedoms of others.

This part of the application must also be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

 




  The applicant complains that he has no effective remedy for his complaints, invoking Article 13 of the Convention which provides :

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government submitted that no issue arose under this provision as the applicant had not shown any arguable violation of Article 8 of the Convention.

The applicant submitted, in the alternative to a violation of Article 6, that he had been denied an effective remedy against the defamatory statements made by an agent of the  Crown acting in an official capacity.

According to the Court’s case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom,judgment of 27 April 1988, Series A no. 131, § 52).

The Court has above found that the applicant’s complaints under Article 8 are manifestly ill-founded. For similar reasons, the applicant does not have an “arguable claim” and Article 13 is therefore inapplicable to his case. It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

 

For these reasons, the Court unanimously

Declares the  application inadmissible.

Michael O’Boyle                                                              Matti Pellonpää
       Registrar                                                                                President