European Court of Human Rights

 

 

 

FOURTH SECTION

Application no.6200/10
StuartWILKIE
against the United Kingdom
lodged on 19 January 2010

STATEMENT OF FACTS

 

The applicant, Mr Stuart Wilkie, is a British national, who was born in 1961 and lives in Kings Lynn.

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 property called Achanellan, which comprised a house and outbuildings. On or about 6 December 1992 the property and all its contents were destroyed by fire. In two separate actions commenced on 22 May 1998 the applicant claimed to be indemnified under a single policy of insurance with Direct Line Insurance plc. In one action he claimed to be indemnified in respect of the value of the property and in the other action he claimed to be indemnified in respect of the value of its contents. However, Direct Line Insurance argued that they were entitled to and in fact did void the policy on account of the applicant’s misrepresentation or non-disclosure in respect of the condition of the property.

Lord Eassie allowed a preliminary proof on prescription in each of the actions by interlocutors dated 11 July 2000. By interlocutors of 12 June 2001 the actions were ordered to be conjoined for the purpose of the preliminary proof.

The Outer House of the Court of Session heard the preliminary proof on 19 September 2001. At the hearing it was accepted that the starting date for the running of the five-year prescriptive period was the date of the fire, namely 6 December 1992. In addition, it was accepted that the actions were brought on 22 May 1998. Finally, it was agreed that any obligation which the insurers had to indemnify the applicant had prescribed unless, on or after 22 May 1993, the subsistence of the obligation had been “relevantly acknowledged” by the insurers. On considering the evidence adduced by the parties, the court concluded that the subsistence of the obligation had been relevantly acknowledged by the insurers and, consequently, the obligation to indemnify the applicant had not prescribed.

The applicant brought a reclaiming motion against the decision to conjoin the proofs. On 30 April 2003 the reclaiming motion was refused by the Inner House of the Court of Session.

The conjoined actions came before Lord Brodie for proof on 1 November 2005. The applicant represented himself at the hearing. He had been granted legal aid for the proceedings and counsel and agents had acted for him in the early stages. However, he dispensed with the services of the agents some time after the commencement of the action because they worked for a firm which had also worked for Direct Line Insurance’s parent company, R.B.S. plc. He said that he had subsequently sought the assistance of thirty-seven legal firms and the advice of the Law Society, before deciding to proceed as a party litigant. His legal aid certificate was subsequently suspended. In subsequent proceedings the court noted that it would have been “surprising” if no legal firm could be found. It therefore considered that the applicant had not given any adequate reason for failing to organise instruction on conventional terms.

The applicant’s evidence and that of his witnesses was heard during the seven days following the commencement of the hearing. The proof was adjourned on 11 November 2005 and it resumed on 5 December 2006. Evidence was heard from further witnesses called by the applicant before he closed his proof. On subsequent days evidence was heard on behalf of the insurers.

On 15 August 2007 the Outer House repelled the applicant’s pleas in each of the actions, finding that the insurers had been entitled to void the contract of insurance. The Outer House found that the property was not in a good state of repair at the date of inception of the insurance policy or any date thereafter. It accepted that the applicant was not fully aware of the state of affairs at the date of inception of the policy but it found that he had become aware of its condition shortly thereafter. As he had renewed the policy prior to the fire he had failed in his duty to disclose the condition of the property at this stage. Moreover, he had also breached his warranty to keep the property in good condition.

On 27 September 2007 the applicant applied for sanction to have the evidence transcribed at public expense. The Court refused the application but continued the motion so that the applicant could specify what parts of the evidence he wished to have transcribed. On 9 October 2007 a renewed application for public funding was refused. The applicant tried to bring two further applications for public funding in January 2008 and October 2008, but these were also refused.

The applicant lodged grounds of appeal. In the course of the appeal hearing, he again represented himself. The court found the grounds of appeal to be somewhat disordered and confusing, but concluded that they were, inter alia, that the Lord Ordinary had been biased against him and had not, therefore, been impartial; that in repudiating the policy the insurers had only relied on the condition of the property at the date of inception and not the date of renewal; and that he had not been told at the start of the hearing that the onus was on the insurer to prove their case against him. On 28 July 2009 the Inner House of the Court of Session dismissed the appeal.The court accepted that the Lord Ordinary had erred in holding the applicant to be in breach of a general duty of disclosure at the date of renewal of the contract, as the insurers had not made out a case based on failure to disclose at that date. However, it found that the insurers had made out a case based on breach of warranty. With respect to the applicant’s other complaints, it held that while the Lord Ordinary had found the applicant often to have acted unreasonably in the course of the hearing, there was no evidence of bias or a lack of impartiality; that it was the applicant’s responsibility as a litigant in person to inform himself of matters of onus; and that there had been no procedural unfairness.

COMPLAINTS

The applicant complains about the fairness of the legal proceedings under Article 6 § 1 and Article 6 § 3(d) of the Convention. In particular, he complains about the length of the proceedings, the lack of impartiality demonstrated by the judges, unequal treatment before the court, reliance on unreliable evidence, and the prohibitive fee of GBP 1,350.00 for making an application to the Supreme Court.

 

 

 




 

QUESTION TO THE PARTIES

Was the length of the civil proceedings, which began on 22 May 1998 and ended on 28 July 2009, in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?