by J.N. and Others
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 24 November 2009 as a Chamber composed of:
Lech Garlicki, President,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 28 November 2008,
Having deliberated, decides as follows:
The first applicant, Ms J.N., is a Ugandan national who was born in 1968. The second applicant, Mr K.N., is also a Ugandan national who was born in 1969. The third applicant, E.N., is their son. He is a British national who was born in 2004. The applicants complained that the removal of the first applicant from the United Kingdom would be a disproportionate interference with their rights under Article 8 of the Convention. They were represented by Mr A. Weiss and Ms N. Mole, lawyers practising in London with the AIRE Centre, assisted by Ms M. Brewer and Ms K. Cronin, counsel. The United Kingdom Government (“the Government”) were represented by their Agent, Ms J. Gladstone of the Foreign and Commonwealth Office.
On 26 January 2009, the Acting President of the Fourth Section to which the case had been allocated decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).
On 8 May 2009, the Government submitted their written observations; the applicants submitted their observations on 31 July 2009. The Government were requested to submit their final observations by 4 September 2009. On that date the Government informed the Court that, independently of proceedings before the Court, the first applicant’s case had arisen for consideration under the United Kingdom Border Agency’s Legacy Programme for dealing with its backlog of cases. As a result of that consideration, the first application had been granted indefinite leave to remain in the United Kingdom. The Government requested that the applicants withdraw their application. The applicants agreed to do so if the Government paid their costs before the Court. These amounted to the AIRE Centre’s costs of GBP 4,177.91, costs of GBP 850 for an expert report and a medical report, and counsel’s fees of GBP 9,142.50. The Government indicated that they were prepared to pay the AIRE Centre’s costs and the costs incurred in respect of the two reports. However, in respect of counsel’s fees they noted that these amounted to approximately twenty-seven hours’ work charged at an hourly rate of between GBP 250 and 350. They considered this was excessive and an hourly rate of between GBP 150 and 200 was more appropriate. They proposed to pay GBP 5,500 under this head.
The Court recalls that, under Article 37 § (1)(a) of the Convention, it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue his application. This is the case here and there is no particular reason relating to respect for human rights as defined in the Convention or its Protocols which requires the Court to continue its examination of the application under Article 37 § 1 in fine. Accordingly, the application should be struck out of the Court’s list of cases.
The Court further recalls that Rule 43 § 4 of the Rules of Court provides:
“When an application has been struck out, the costs shall be at the discretion of the Court. ...”
It notes the Government’s willingness to pay the AIRE Centre’s costs and those incurred in respect of the two reports. It agrees with the Government that the hourly rate charged by counsel is excessive and that, under this head, a sum of GBP 5,500 is more appropriate. The Court thus awards the applicants EUR 11,448 (approximately GBP 10,528) plus any tax that may be chargeable to the applicants.
For these reasons, the Court unanimously
1. Decides to strike the application out of its list of cases;
(a) that the respondent State is to pay the applicants within three months of the date of the notification of the decision EUR 11,448 (eleven thousand four hundred and forty-eight euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be converted into pounds sterling at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Lawrence Early Lech Garlicki