European Court of Human Rights
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URL: http://www.bailii.org/eu/cases/ECHR/2008/112.html
Cite as: [2008] ECHR 112
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22 January 2008
FOURTH SECTION
Application no.
19859/04
by Richard ANDERSON
against the United Kingdom
lodged
on 27 May 2004
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Richard Anderson, is a British national who was born in 1952 and lives in Glasgow.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant owned a flat in a tenement building in Edinburgh. A number of the flats in the building were also owned by a commercial property company. In August 1988, when the proprietors of the building failed to carry out repairs mandated by the city council under statutory notices, the city council itself instructed works to be carried out (provided for by section 99 of the Civic Government (Scotland) Act 1982). It sought advice from a private architect, awarded the contract for the repairs to a private preservation company and apportioned the cost of the repairs among the various proprietors of the building. In October 1988, a fire occurred in the building which damaged part of the applicant’s flat and part of the flat below belonging to the commercial property company. Whilst the applicant was living elsewhere, the owners of the flat underneath his (the commercial property company) instructed repair work. The applicant claimed that both sets of repairs constituted trespass to his property, that in each case the repairs were in fact inadequate and unsatisfactory, and that he was entitled to damages in the sum of GBP 100,000.
When the applicant refused to pay the council for his share of the repair costs, the council brought proceedings in the Sheriff Court (the civil court of general jurisdiction). The applicant filed a counter-claim alleging that the council had instructed further repairs that had damaged his property. The applicant further sought referral of the whole case to the Court of Session (the highest civil court).
On 14 November 1994 the Sheriff Court upheld the council’s claim, rejected the applicant’s counter-claim and found that the case did not meet the criterion for referral to the Court of Session. On 11 May 1995, the applicant’s appeal to the Sheriff Principal was rejected.
In 1998, the applicant then brought proceedings against the architect and chief executive of the preservation company for contempt of court in relation to an alleged failure to produce documents in the initial action. By judgments of 17 February 1999 the Sheriff Court rejected the applicant’s claims.
In April 1997, the applicant brought proceedings against the city council and the commercial property company in the Court of Session, alleging that the statutory notices were invalid on grounds of fraud and illegal conspiracy. This was rejected on 4 September 2002 by the Outer House (a single judge) as unfounded and unspecified. A further appeal to the Inner House (three judges) was unanimously dismissed on similar grounds on 11 December 2003.
In June 2002 the applicant also sought to bring proceedings in the Court of Session against the solicitors acting for the council in the Sheriff Court proceedings. Unable to obtain a solicitor who would provide the necessary signature on the summons, the applicant petitioned the Court of Session for leave to proceed without the signature. Leave was refused on the papers on 25 July 2002. Complaints made in relation to the solicitors and advocates representing the council were dismissed by their respective professional bodies and then by the Scottish Legal Services Ombudsman on 13 November 2001 and 4 July 2003, respectively.
COMPLAINTS
The applicant complains first under Article 6 § 1 of the Convention that the refusal of the Court of Session to grant leave for him to proceed without the necessary signatures on his summons violated his right of access to court. Secondly, under Article 6 § 1 he alleges that there was a lack of a fair hearing in three aspects: (i) that the Sheriff Court and Sheriff Principal refused to hold oral hearings on preliminary matters before them; (ii) that the Court of Session while it heard oral argument, essentially based its ruling on preliminary, written pleas; and (iii) that the Court of Session failed in its duty to make a proper examination of the submissions, arguments and evidence adduced by the parties. Thirdly, under Article 6, the applicant complains that the courts hearing his case, while themselves independent and impartial, were not in fact independent and impartial by virtue of the corruption and contempt of court of the legal representatives before them.
Fourthly, invoking Article 13 of the Convention, the applicant complains that there was no effective remedy in respect of these alleged violations of Article 6 § 1.
Fifthly, he complains that the length of the proceedings before the Court of Session challenging the statutory notices was incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention.
Finally, he complains under Article 8 of the Convention that the council, by entering his property to carry out the repairs, failed to respect his right to respect for his home.
QUESTION TO THE PARTIES
Was the length of the Court of Session proceedings against the city council in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?