CASE OF MCNAMARA v. THE UNITED KINGDOM
(Application no. 22510/13)
12 January 2017
This judgment is final but it may be subject to editorial revision.
In the case of McNamara v. the United Kingdom,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Kristina Pardalos, President,
Tim Eicke, judges,
and Renata Degener, Deputy Section Registrar,
Having deliberated in private on 13 December 2016,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 22510/13) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr Andrew McNamara (“the applicant”), on 3 June 2013.
2. The applicant was represented by his daughter, Ms C. McNamara. The United Kingdom Government (“the Government”) were represented by their Agent, Mr P. McKell, of the Foreign and Commonwealth Office.
3. On 17 December 2014 the complaint concerning the length of the proceedings was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1942 and lives in Lamlash.
A. The background facts
5. In 1966 the applicant founded a business which was later incorporated as Arakin Limited (“Arakin”).
6. In the second half of the 1980s, Arakin became involved in commercial disputes. In 1986 Tods Murray solicitors were retained in relation to those disputes. However, Tods Murray’s fees were not settled in full by Arakin.
B. The domestic proceedings
7. On 27 May 1996 Tods Murray commenced legal proceedings against Arakin in the Outer House of the Court of Session (the first-instance civil court in Scotland in respect of claims over a certain value) for payment of 32,696.75 pounds sterling (“GBP”) in respect of fees relating to a dispute against Arakin’s former accountants.
9. The dispute gave rise to four sets of overlapping proceedings. First, the proceedings to establish Tods Murray’s fees, which ran from 8 October 1996 to 2 October 2008 (in this the courts were assisted by the auditor for taxation, an expert officer of the Outer House who advises the court on disputes concerning legal fees); second, proceedings in respect of Arakin’s allegations of fraud against Tods Murray running from July 2001 to 22 January 2004; third, proceedings concerning the principal claim and counterclaim which ran from 9 January 2009 to 14 November 2012; and fourth, proceedings settling the overall costs of the case (excluding the fraud proceedings) which ran from 14 November 2012 to 13 November 2014.
1. The first set of proceedings: the taxation proceedings
10. On 8 October 1996, the Outer House ordered a detailed account of the fees owed to be produced to the auditor for taxation, in order for the amount of the fees due in respect of the litigation in question to be determined.
11. By March 1997 all accounts had been lodged with the auditor. On 4 August 1997 the taxation hearing began before the auditor. It lasted four weeks. On 27 March 1998 the auditor issued his reports.
12. The parties objected and from April 1998 the Outer House which was responsible for overseeing the taxation proceedings, held a number of hearings to settle the procedure and deal with the notes on objections, and also to hold a preliminary debate in the claim and counterclaim (the third proceedings). Some hearings were discharged at Arakin’s request. The court however refused Arakin’s request to stay the case.
14. By 14 October 1999 Arakin’s then solicitors had ceased acting for it. In February 2000 Arakin’s new solicitors withdrew from acting. From that time onwards Arakin had no legal representation. The applicant sought to appear at hearings in early 2000, on Arakin’s behalf.
16. Between June 2001 and April 2002, the Outer House sought to regulate the procedure in relation to the notes of objection lodged by both parties in respect of the accounts and dealt with other motions lodged by the applicant. It held a number of hearings.
17. However, no further progress could be made on the notes of objections until the allegations of fraud had been determined (the “second proceedings”; see paragraphs 23-28 below). In the course of 2002 and 2003, the court heard various incidental motions by the applicant who increased the sum sought in the counterclaim to GBP forty-five million. He also renewed motions which had previously been refused.
18. The allegations of fraud made by the applicant having been determined, the Outer House on 24 March 2004 ordered a two-day hearing on the notes of objections for 7 June 2004, which finally concluded on 12 November. In total, around fifty objections had been made, of which, seven were lodged by Tods Murray and the remainder by the applicant.
19. On 28 April 2006 the Outer House gave a judgment on the notes of objections, running to 223 paragraphs. Tods Murray appealed. On 14 July 2006 the Inner House ordered that there should be a hearing on 21 March 2007. Following that hearing, the Inner House found in favour of Tods Murray on all three points raised in the appeal. On 27 April 2007 the case was remitted to the Outer House.
20. On 9 May 2007, the Outer House ordered the parties to lodge their proposals for further procedure.
21. The accounts were returned to the auditor to consider the impact of the notes of objection which had been upheld. On 21 January 2008 a taxation hearing was held before the auditor and on 2 June 2008 he reported on his taxation of the remitted accounts. He assessed the total amount due in legal fees as GBP 409,597.50. Tods Murray accepted that Arakin had paid GBP 321,766.39 to date and the sum sued for was therefore the balance of GBP 87,831.11.
22. On 24 September 2008 a final hearing took place on the notes of objections. On 2 October 2008 the Outer House delivered its judgment, finally determining all questions relating to the valuation of the accounts. The taxation proceeding were therefore at an end.
2. The second set of proceedings: the applicant’s allegations of fraud against Tods Murray
23. In the meantime in July 2001, the applicant made allegations about the authenticity of the court papers, which developed into allegations of fraud against Tods Murray and their solicitors. Hearings took place before the Outer House between August and December 2001. On 20 December 2001 the Outer House ordered the applicant to lodge, by 11 January 2002, particulars of his allegations. On 18 January 2002 it directed that the case be heard on 13 February 2002. On that date, having regard to further allegations made by the applicant, it ordered that he lodge details of these allegations within fourteen days. On 6 March 2002, a factual hearing on the allegations was fixed for 14 May 2002. This hearing lasted 15 days but was ultimately insufficient.
25. On 31 October 2003 the court issued an opinion rejecting the applicant’s allegations in their entirety. It concluded, inter alia, that none of the allegations were well-founded; that the applicant had made representations which he knew or ought to have known were incorrect; that the hearing had taken an inordinate length of time because the applicant had persistently resorted to irrelevant lines of inquiry and had been disorganised in his presentation; that the hearing had been used as a vehicle to air grievances going beyond its scope and to advance the applicant’s interests in other litigation; that the applicant’s approach had been reckless; and that he had had no reasonable grounds for his asserted belief in the truth of the allegations.
26. The applicant sought leave to appeal the decision to the Inner House of the Court of Session. On 21 April 2004 the Inner House dismissed the application to appeal as incompetent since leave had not been obtained from the Outer House.
27. In the meantime, on 22 January 2004, the Outer House awarded costs against the applicant at a punitive rate in light of his conduct. The court also ordered that their payment was a condition to proceed with the counterclaim. Between 2004 and 2009 the amounts remained unpaid and the matter proceeded on the basis that the only issues to try were contained in the principal claim.
28. In early August 2009, the applicant paid the amounts to which the order of 22 January 2004 referred.
3. The third set of proceedings: the principal claim and the counterclaim
(a) The preliminary determination of the legal issues (the “legal debate”)
29. Following the conclusion of the taxation proceedings, the Outer House heard the parties on several occasions between 9 January 2009 and 22 October 2009 to determine future procedure and finally listed an eight-day hearing of legal issues to commence on 1 December 2009. By the time of the hearing the applicant sought over GBP sixty-two million in his counterclaim. On 10 December 2009, after an eight-day hearing, the court reserved judgment.
30. On 9 July 2010 the Outer House delivered its opinion. It noted that Tods Murray’s claim was a simple one, namely an action for payment of a debt. The applicant’s position, it said, was “a great deal more complicated”. Despite lengthy written pleadings, the court had found it “difficult to determine the precise factual background” upon which he relied. Turning first to his defences to the principal claim, the court rejected all except one, namely the applicant’s argument that he had paid the fees due in full. This, the court said, was a matter for evidence appropriate for the subsequent factual hearing.
31. As to the counterclaim, after a careful examination of the applicant’s evidence, the court held that it was an “abuse of process”. It noted that very grave allegations had been made but that the applicant had produced no expert opinion to support them.
32. The applicant appealed 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 heard the appeal and refused it. The case was remitted to the Outer House.
(b) The hearing on the facts
33. On 11 May 2011 the Outer House heard both parties and fixed a hearing on the facts. On 21 July 2011 that hearing took place. A day was set aside for further argument and the parties lodged detailed notes of arguments, the applicant’s running to one hundred pages.
34. On 14 February 2012 the court handed down its judgment. It noted that Tods Murray’s case was “straightforward and cogent” but that it had been “very difficult to discern the defence to the action”. The applicant had repeated “scurrilous allegations” against partners in Tods Murray and the witnesses he had led had been of no assistance in determining the question before the court. The court also commented that the applicant had sought to revisit many points which had already been decided. It found in favour of Tods Murray in the principal claim and held that the applicant was liable in the sum of GBP 86,376.40.
35. The applicant appealed. On 6 March 2012 the Inner House found the appeal suitable for urgent disposal. A hearing took place on 4 and 5 July. In a judgment of 14 November 2012 the Inner House upheld the decision of the Outer House. It commented that it “had not found it easy to understand the arguments which [the applicant] sought to advance”. It further noted:
“Throughout the course of this protracted litigation Mr McNamara has sought to revisit arguments and allegations which have not found favour with the court on previous occasions ...
Many of the issues which Mr McNamara has sought to argue before us cannot be argued competently before us now.”
36. It held that it was not open to it to revisit the various decisions it had made previously concerning aspects of the litigation in the context of interim appeals. This brought to an end the substantive issues in the litigation.
4. The fourth set of proceedings: the costs proceedings
37. The only remaining issue was costs. Tods Murray applied for its costs and the applicant lodged various applications. The Outer House listed a hearing to take place on 1 July 2013. However, the applicant contacted the court stating he was unwell, so it was adjourned to 22 July. He then told the court he was on holiday on 22 July. The court found this an inadequate reason for non-attendance and maintained the date.
38. The applicant did not appear at the hearing on 22 July 2013. The Outer House granted a further one-week adjournment in order to allow the applicant a “final opportunity to appear”. The clerk of court and Tods Murray’s solicitors sought to bring the hearing, which had been re-listed for 29 July 2013, to the applicant’s attention by e-mail, telephone and by personal attendance at the applicant’s home address.
39. On 29 July 2013 the applicant did not appear and the hearing proceeded in his absence. The judge found in favour of Tods Murray on the issue of expenses at an enhanced, punitive rate of expenses in light of the applicant’s conduct. The court commented:
“When this action was first raised in 1996, it appeared to be in short compass. The pursuer sought payment from the defender of its outstanding professional fees. It was therefore a simple action for recovery of a debt. Since then, Mr McNamara has introduced a great many factual and legal issues, which have been exhaustively examined over many hearings.”
“ ...unreasonable and incompetent. He has thereby caused the pursuer unnecessary expense...”
41. It also awarded an additional fee to Tods Murray to reflect the “huge amount” of correspondence and documents sent to the Tods Murray’s solicitors by the applicant, much of which was irrelevant, the complexity of the proceedings, having regard to the “number, difficulty and novelty of the questions raised”, the skill time, labour and specialist knowledge required of the solicitors and the accusations of deception, incompetence and bad faith levelled against individual solicitors at Tods Murray. It rejected a number of motions lodged by the applicant.
42. The applicant appealed and lodged a number of documents. The appeal was refused on 16 July 2014. On 13 November 2014 the applicant was found “liable in the expenses” (that is, liable for the costs) of that appeal. His various motions were dismissed. The Inner House again noted that the applicant had sought to reopen issues already determined and continued to express his dissatisfaction with the court’s substantive decisions.
5. The vexatious litigant proceedings
43. Meanwhile, in 2009 the Lord Advocate (the chief legal officer of the Scottish Government) applied to have the applicant declared a vexatious litigant. He relied on four sets of proceedings, including the Tods Murray litigation.
44. On 4 June 2009 the Inner House declared the applicant a vexatious litigant but excluded the Tods Murray litigation from the order. It referred to the applicant’s ill-founded allegations about lack of authenticity of documents which it said were a “serious abuse of process”. In coming to this conclusion it also took into account the finding that he had used a proof in the Tods Murray litigation for collateral purposes. Moreover, he had wasted time because of his disorganisation and persistent pursuit of irrelevant matters in that litigation. It noted that the applicant had accepted that his lack of legal expertise had caused delay in the proceedings.
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
45. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
46. The Government contested that argument.
47. The period to be taken into consideration began on 27 May 1996 and ended on 13 November 2014. It thus lasted for eighteen years and five and a half months for eleven levels of jurisdiction.
48. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. The parties’ submissions
(a) The applicant
49. The applicant argued that the legal fees generated by the underlying ligation should have been determined prior to the claim being raised. He did not accept that the underlying litigation was relevant to the complexity of assessing the solicitors’ fees due. However, he considered that the taxation proceedings themselves were complex. The fact that the Outer House was dealing with objections to the auditor’s report ten years after the claim commenced exemplified the complexities.
50. The applicant did not accept that his conduct complicated proceedings. The counterclaim had had a limited role in the proceedings since Tods Murray’s action did not require progress in the counterclaim to be concluded. The inaccuracies in the amount sought in the initial claim had complicated the proceedings. As regards the allegations he had made about the court papers, it had been the court that had directed him to set out his concerns as to the process. Finally, he complained in particular about the seventeen-month delay between the conclusion of the hearing on the notes of objections and the publication of the court’s opinion in April 2006.
51. The applicant concluded that the proceedings were genuinely exceptional. In his view, they should never have taken place at all and the claim should not have been raised without taxed accounts. The lengthy litigation had resulted in prolonged and increasingly heightened stress and anxiety.
(b) The Government
52. The Government maintained that the duration of the proceedings at the various stages of the procedure had been reasonable, in particular in light of their complexity.
53. The Government noted that at the conclusion of the proceedings, the Outer House had referred to the applicant’s conduct as “unreasonable and incompetent”. That conclusion reflected the court’s disapproval of the applicant’s conduct throughout the proceedings and his misuse of court procedures. This was not merely a case where the applicant had failed to take opportunities to bring the proceedings to an earlier conclusion: the counterclaim had been improperly brought and insisted upon and it had been difficult to discern any objectively justifiable defence to the principal claim.
54. As to what was at stake, it was plain that the applicant had sought to engage in a sustained campaign to put in issue the propriety of Tods Murray’s conduct in previously representing Arakin. The importance of the allegations for Tods Murray, as well as the applicant, was not to be underestimated.
2. The Court’s assessment
55. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
56. The Court is satisfied that the subject-matter of the principal claim was straightforward: Tods Murray sued for payment of a debt. The counterclaim, on the other hand, was an issue of some complexity since it involved wide-ranging allegations of professional negligence and misconduct on the part of Tods Murray. The taxation proceedings were also complex: the disputed fees concerned three distinct sets of litigation, some of long duration, and the auditor was required to review the underlying litigation and assess whether fees had been justifiably charged.
57. As to what was at stake, while initially the company Arakin was a defender in an action for around GBP 300,000, it cannot be said that the proceedings concerned an issue of particularly significant importance to the applicant.
58. Moreover, it is clear from the material before the Court that the applicant’s conduct throughout had a critical impact on the progress of the case. The domestic courts characterised the allegations of fraud as reckless, highlighting that the applicant had no reasonable grounds for his asserted belief in the truth of the allegations. They characterised his counterclaim as an “abuse of process”. They also found the applicant’s behaviour in the other proceedings to be unreasonable and incompetent. Indeed, it was not the applicant who was seeking to resolve the proceedings speedily. It was the courts who sought to control the delay he caused by awarding punitive costs against him, which had to be paid before he could proceed with his other litigation. They also applied urgent procedures to the litigation.
59. The Court concludes that the applicant cannot rely on the periods during which his actions caused delay (see, mutatis mutandis, Vayiç v. Turkey, no. 18078/02, § 44, ECHR 2006-VIII (extracts); and Uysal and Osal v. Turkey, no. 1206/03, § 30, 13 December 2007). Consequently, he cannot rely on any delay in the proceedings to determine his allegations of fraud. The Court notes in that connection that the fraud proceedings also interrupted the progress of the taxation proceedings for a period of three years. He cannot rely on any delay in the counter claim which must have also impacted on the entirety of the proceedings to determine the principal claim and counter claim. Nor can he rely on any delay in the costs proceedings, in light of his failure to participate fully in those proceedings despite efforts to secure his involvement.
60. However, the present litigation took on a scale and duration incommensurate with the simple nature of the underlying claim, lasting in all over eighteen years. In this context, the Court finds that although the applicant’s own actions generated the vast majority of the delay, there were certain stages of the proceedings which were protracted. That is the period of just over 1 year and 5 months, between the conclusion of the November 2004 hearing on the notes of objections and delivery of the subsequent judgment, and the period of around 7 months after the conclusion of the 2011 hearing on the facts, and the delivery of the relevant judgments.
61. The Court finds to this limited extent that the overall length of proceedings was excessive and failed to meet the reasonable-time requirement.
62. There has accordingly been a breach of Article 6 § 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
63. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
64. The applicant claimed GBP 1,982,992.49 plus interest in respect of pecuniary damage. He also made a claim for an unspecified sum in respect of non-pecuniary damage.
65. The Government contested the claims.
66. There is a strong, although rebuttable, presumption in favour of non-pecuniary damage being occasioned by the excessive length of proceedings. However, there may also be situations where no such damage, or only minimal damage, has been ascertained - for instance where an applicant’s conduct has entirely or partly caused the procrastination or where the delay has been caused by circumstances independent from the authorities (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 204, ECHR 2006-V; Proszak v. Poland, 16 December 1997, § 40, Reports of Judgments and Decisions 1997-VIII, with further references; Rylski v. Poland, no. 24706/02, § 76, 4 July 2006; Boczoń v. Poland, no. 66079/01, § 51, 30 January 2007, and Piper v. the United Kingdom, no. 44547/10, §§ 56-69 and 73-74, 21 April 2015).
67. In this case it is only a very small part of the totality of the extraordinary length of the proceedings that has been found to be attributable to the respondent State and, thus, the source of a violation of the reasonable-time requirement under Article 6 § 1. On the contrary, it is the applicant himself who was largely responsible for preventing the proceedings being brought to a timely close.
68. Having regard to these particular circumstances, the Court does not consider that it is “necessary”, in the terms of Article 41 of the Convention, to afford the applicant any financial compensation by way of just satisfaction. The Court accordingly holds that the finding of a violation of Article 6 § 1 by reason of the delay in the proceedings attributable to the respondent State in itself constitutes adequate just satisfaction for the purposes of the Convention.
B. Costs and expenses
69. The applicant also claimed GBP 15,000 for over one thousand hours of preparation time in respect of the proceedings before the Court.
70. The Government did not express an opinion on the matter.
71. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant, who was not represented by a lawyer, the sum of EUR 500 under this head.
C. Default interest
72. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. Holds that the finding of a violation constitutes in itself sufficient just satisfaction under Article 41 of the Convention;
(a) that the respondent State is to pay the applicant, within three months EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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;
5. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 12 January 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Renata Degener Kristina
Deputy Registrar President