European Court of Human Rights

 

 

Communicated on 17 December 2014

 

FOURTH SECTION

Application no. 22510/13
Andrew MC NAMARA
against the United Kingdom
lodged on 3 June 2013

STATEMENT OF FACTS

The applicant, Mr Andrew McNamara, is a British national, who was born in 1942 and lives in Lamlash. He is represented before the Court by his daughter, Ms C. McNamara.

A.  The circumstances of the case

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

1. Background facts

The applicant founded a business in 1966, which was ultimately incorporated as Arakin Limited (“Arakin”).

In the second half of the 1980s, Arakin became involved in two commercial disputes which form the basis of the present application. In 1986 Tods Murray solicitors were retained in relation to a construction dispute with Glasgow District Council. The dispute was ultimately resolved by arbitration. In 1988 Tods Murray were retained by Arakin in relation to a dispute with Arakin’s former accountants.

On 22 December 1994 Tods Murray gave notice that it would no longer act for the company. The notice letter noted Arakin’s insistence that all fees incurred by it be taxed.

2. Domestic Proceedings

a. Proceedings from 1996 to 2001

On 27 May 1996 Tods Murray commenced legal proceedings against Arakin in the Outer House of the Court of Session for payment of 32,696.75 pounds sterling (“GBP”) in respect of fees relating to the dispute against Arakin’s former accountants. The sum claimed by Tods Murray was amended to GBP 41,696.75 on 4 September 1996.

On 8 October 1996 the Outer House ordered a detailed account of the fees owed (“Accountant Dispute Account”) to be produced to the Auditor for taxation within twenty eight days. The Accountant Dispute Account was lodged by Tods Murray.

On 19 December 1996 the claim was again amended to include a second sum, GBP 204,594.13, in respect of the Glasgow District Council dispute. A detailed account of the fees owed in respect of this dispute appears to have been lodged by 18 March 1997 at the latest.

On 4 August 1997 the Auditor began to tax both accounts. He completed the taxation four weeks later.

On 30 January 1998 Arakin issued a counter-claim alleging that Tods Murray’s services had been deficient. The Auditor reported in relation to both accounts on 27 March 1998.

Between 28 March 1997 and 27 October 1998 the Outer House dealt with a number of unopposed motions and heard the parties on several occasions in relation to procedural matters.

On 18 December 1998 the Outer House made an order requiring Tods Murray to produce a further detailed account (“Second Accountant Dispute Account”) by 28 February 1999 and to send it to the Auditor. The account was lodged in March 1999.

The Auditor lodged a report relating to the Second Accountant Dispute Account with the court on 26 October 1999.

On 25 February 2000 Arakin’s legal representatives stopped acting for the company. On 6 April 2000 Arakin assigned its rights in the proceedings to the applicant and another individual, Mr M Frost (“the Defenders”).

 Between 30 December 1998 and 25 April 2000 the Outer House dealt with various procedural motions, including by way of a number of hearings.

On 9 May 2000 the Outer House refused the Defenders’ application to be joined to the ongoing counter-claim proceedings as parties. It granted the Defenders leave to appeal its refusal.

On 6 March 2001 the Inner House of the Court of Session heard the Defenders’ appeal and reserved judgment. The appeal was refused on 10 April 2001.

On 29 May 2001 the Defenders were given permission to become parties to both the claim and counter-claim in place of Arakin if the sum of GBP 100,000 was lodged with the court. The sum was duly lodged.

Between 22 June 2001 and 12 October 2001 the Outer House considered a number of procedural motions.

At a hearing on 20 November 2001, the Outer House made various orders including that the Auditor address submissions the parties had made objecting to his reports and that a hearing take place on those submissions on 4 March 2002. On 18 December 2001 the Auditor provided the submissions ordered.

 On 20 December 2001 the Outer House ordered the Defenders to lodge, by 11 January 2002, particulars of allegations which they were seeking to make about a “lack of authenticity” of documents in the proceedings. It directed that the case be heard on 18 January 2002 to decide on the procedure to be followed in determining the allegations.

b. Proceedings from 2002 to 2004

On 18 January 2002 the Outer House directed that the case be heard on 13 February 2002 to determine the procedure to be followed to resolve the allegations. On that date it ordered that the Defenders lodge any other allegations concerning authenticity within fourteen days and directed that the case be heard on 6 March 2002. On 5 March 2002 the court discharged the hearing on the parties’ submissions objecting to the Auditor’s reports with the consent of both parties and ordered that procedural aspects only be heard on 6 March 2002.

On 6 March 2002 the Outer House again ordered that the Defenders’ allegations of lack of authenticity be dealt with at a hearing and reserved its decision on the procedural aspects of the proceedings relating to objections to the Auditor’s reports. On 15 March 2002 it ordered that the hearing take place on 14 May 2002.

Between 22 March 2002 and 27 June 2003 the Outer House considered various procedural motions and held a number of hearings, including of evidence.

The Outer House reserved its decision on the Defenders’ allegations about lack of authenticity of documents on 22 August 2003. On 31 October 2003 it issued an opinion rejecting the Defenders’ allegations about the authenticity of documents.

Between 13 November 2003 and 9 January 2004 the Outer House dealt with various applications.

On 22 January 2004 the Outer House ordered that the Defenders be liable for the costs caused by the authenticity allegations which it had rejected on 31 October 2003. It also ordered that the Defenders’ counter-claim should not proceed until those costs were paid. It stayed the case pending the outcome of another case involving the applicant. On 21 April 2004 the Inner House refused permission to appeal the Outer House’s decision of 22 January 2004.

Meanwhile, on 23 March 2004 the Outer House heard the parties and ordered the lifting of the stay.

On 29 April 2004 Mr Frost informed the Outer House that he had been made bankrupt. On that date the court ordered that 8 and 9 June 2004 be listed as the date for the hearing of the parties’ submissions on the Auditor’s reports.

On 8 June 2004 the hearing commenced. On 9 June 2004 it was adjourned to 24 August 2004. On 5 August 2004 the hearing was further adjourned to 11 November 2004 and the parties were ordered to lodge certain documents relating to the taxation. On 12 November 2004 the court finished the hearing and reserved judgment.

c. Proceedings from 2005 to 2007

Between 10 February 2005 and 20 December 2005 the Outer House heard the parties on several occasions in relation to applications made by the applicant.

On 28 April 2006 the Outer House gave its opinion on the parties’ submissions on the Auditor’s reports and adjourned the case until 8 June 2006. It noted that Tods Murray had by that date admitted that the sum of GBP 204,594.13, included in the proceedings by amendment of the summons on 19 December 1996, was erroneous and should have been GBP 62,860.77. It also decided that some of the issues which had been raised subsequent to the taxation should have been decided before it had taken place. Other issues before the Auditor had been ones which he could not decide upon and should have been raised in the subsequent legal proceedings. The Outer House ultimately upheld (at least in part) three of the Defenders’ objections and ordered a hearing in relation to one of Tods Murray’s objections.

On 8 June 2006 the Outer House made an order setting out its findings, granting Tods Murray leave to appeal and granting leave to appeal, propio motu, to both parties in certain other regards. Tods Murray appealed and on 16 June 2006 the Inner House set a deadline of twenty-eight days to submit grounds of appeal. On 14 July 2006 the Inner House decided that the appeal was not suitable for early disposal and that there should be a hearing.

The appeal was heard on 21 March 2007. The Inner House found in favour of Tods Murray. It decided that the taxations should be returned to the Auditor but only to deal with the specific points on which it had decided. On 27 April 2007 the Inner House remitted the matter to the Outer House so that the accounts could be remitted to the Auditor.

On 9 May 2007 the Outer House set directions for the case and decided that a hearing on factual issues arising out of the 2006 opinion would be heard on 18 June 2007. On 20 June 2007 the court ordered that the hearing be adjourned to a date to be fixed when the Auditor had lodged further reports.

d. Proceedings from 2008 to 2009

On 21 January 2008 a taxation hearing was held before the Auditor following the Inner House’s decision to remit the accounts. On 2 June 2008 he reported on his taxation of the remitted accounts.

Between 7 December 2007 and 20 August 2008 the Outer House heard the parties on two occasions and considered unopposed motions on two occasions.

On 24 September 2008 the Outer House reserved its decision on the factual issues arising out of the 2006 opinion after hearing from the parties. On 2 October 2008 the court refused one of Tods Murray’s objections; remitted an account to the Auditor to be taxed and set directions for the case, including a refusal to hear evidence on lack of access to Tods Murray’s files.

Between 9 January 2009 and 22 April 2009 the Outer House heard the case on several occasions and on the latter date ordered evidence to be heard prior to legal issues being considered.

The Lord Advocate applied to have the applicant declared a vexatious litigant. He relied on four sets of proceedings, including the Tods Murray litigation. On 4 June 2009 the Inner House declared the applicant a vexatious litigant. The court did not accept that the Tods Murray litigation itself satisfied the statutory requirements but decided that the other proceedings did. In exercising its discretion to make such a finding, it found that the applicant’s ill-founded 2002-2003 allegations about lack of authenticity of documents; a finding that he had used a proof in the Tods Murray litigation for collateral purposes and the court’s observations about wastage of time because of disorganisation and persistent pursuit of irrelevant matters in that litigation were relevant but decided that his taking of an assignation from Arakin was not. Unlike his co-defendant, he was not involved in litigation as a business but as an assignee of his family company in a position where the company would not otherwise have had representation. It also noted that in his submissions on the exercise of discretion the applicant had accepted that his lack of legal expertise had caused delay in the proceedings.

On 14 August 2009 the Outer House ordered that the case be listed on 10 November 2009 for a four-day hearing of legal issues. On 22 October 2009 the Outer House vacated the hearing listed for 10 November 2009 following an application by the applicant. The Outer House listed an eight-day hearing to commence on 1 December 2009. On 10 December 2009, after ten days of hearings, the court reserved judgment.

e. Proceedings from 2010 to 2012

On 9 July 2010 the Outer House delivered its opinion. The court decided that the final hearing should be restricted to a single issue, namely what sums had been paid by Arakin in relation to the accounts as taxed and as a result whether it still owed any money. The applicant’s defences were dismissed in their entirety apart from the issue of quantum and the counter-claim was dismissed. The applicant applied to appeal against the decision.

Between 20 October 2010 and 28 January 2011 the Inner House dealt with various procedural aspects of the appeal.

On 3 March 2011 the Inner House refused the applicant’s appeal, found the applicant liable in costs and remitted the matter to the Outer House.

On 11 May 2011 the Outer House heard both parties, directed them to discuss pre-trial matters and listed a hearing for 13 June 2011. It also listed a hearing of the parties’ arguments commencing on 18 July 2011.

On 13 July 2011 the court again heard the parties and made orders including that the applicant’s daughter be allowed to act as a lay assistant and for the final hearing to be delayed one day to 19 July 2011.

On 21 July 2011 the Outer House ordered that a hearing of the parties’ submissions take place on 17 October 2011. On 17 October 2011 it heard submissions from the parties and then reserved judgment.

On 14 February 2012 the court determined that the applicant was liable in the sum of GBP 86,376.40.

The applicant appealed the Outer House’s decision. On 14 November 2012 the Inner House decided to uphold the decision. It found that it was not open to it to revisit the various decisions it had made previously concerning aspects of the litigation.

f. Proceedings in 2013

The Outer House listed a hearing to take place on 1 July 2013 to determine liability for expenses in the proceedings. Because the applicant was unwell, the hearing was adjourned.

At a hearing on 22 July 2013 the Outer House granted a further adjournment in order to allow the applicant, who had informed it he would be on holiday, a “final opportunity to appear”. The clerk of the court and Tods Murray’s representatives sought to bring the hearing, which had been re-listed for 29 July 2013, to the applicant’s attention by e-mail and by personal attendance at the applicant’s home address.

On 29 July 2013 the hearing proceeded in the applicant’s absence. The judge found in favour of Tods Murray on the issue of expenses. In relation to the applicant’s conduct he found that it had been:

“[...] unreasonable and incompetent. He has thereby caused the pursuer unnecessary expense. In making that finding I take into account several factors:

i. it has been difficult to discern any substantive defence to the action;

ii. Mr McNamara has argued lines of defence that are plainly incompetent, such as the incorporation of a case based upon professional misconduct;

iii. he has made very serious allegations against a number of professional persons, without being in possession of an expert report upon which to found them;

iv. he has persisted in repeating those allegations even when they have been held to be unjustified;

v. in the case of Mr Simpson and Mr Dobie, his conduct may be characterised as a sustained campaign;

vi. he has caused substantial delay; for example, by raising irrelevant matters which were the subject of the proof before Lady Smith and by not paying awards of expenses for several years;

vii. at every stage, Mr McNamara has engaged in voluminous correspondence and communications with the solicitors for the pursuer and with the court, sometimes using an intemperate tone;

viii. he continues to make allegations against the court and those representing the pursuer.”

On 16 August 2013 the applicant applied to appeal the Outer House’s decision. Submissions were lodged by the parties and a hearing was listed for 1 November 2013 in the Inner House. The Inner House refused his application to appeal.

On 28 November 2013 it appears that the Outer House granted the applicant leave to appeal its order dated 29 July 2013 out of time. The reasons for this, and subsequent developments, are not known.

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention about the length of the civil proceedings in the present case.

 




 

 

QUESTION TO THE PARTIES

1.  Was the length of the civil proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

 

The parties are invited to provide copies of all decisions in the proceedings relevant to the above question, as well as copies of transcripts of those decisions and any relevant notes of judgments or reasons given during the proceedings.