SINFIELD AND OTHERS v. THE UNITED KINGDOM

George Nicolaou;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

The 707 applicants are either former servicemen or personal representatives or dependents of deceased former servicemen. A list of the applicants is set out in the appendix. They are represented before the Court by Mr N. Sampson, a solicitor practising in London.

For ease of reference, the term “applicants” in the following statement of facts should be taken to mean both the present applicants and the deceased former servicemen who are represented by their estates.

Between 1952 and 1958 the United Kingdom carried out a series of atmospheric tests of thermonuclear devices in the region of the Pacific Ocean. All three branches of the armed forces took part, involving some 22,000 servicemen, including the applicants. Some contemporaneous monitoring was carried out of radiation levels to which individual servicemen were exposed at the moment of detonation, but no monitoring took place of subsequent exposure to radiation in the form of fallout through ingestion of contaminated water or fish, for example.

In medical and scientific circles it was known since the 1940s that exposure to ionising radiation was capable of causing many forms of cancer, although the risk was generally associated with fairly high levels of exposure caused by “prompt” or “instantaneous” radiation. Subsequently, the effects of lower levels of radiation caused by fallout were studied. In the United Kingdom, public interest in the possibility that British servicemen might have suffered ill effects as the result of exposure during the nuclear tests was aroused following a series of items on a BBC television news programme broadcast in December 1982 and early 1983. These ventilated the possibility that test participants were suffering unusual levels of ill health of various forms. This interest appears to have stemmed from publicity in Scotland generated by concerns raised in the Daily Record by one of the applicants, Mr Kenneth McGinley. Mr McGinley publicly claimed that he was one of a number of nuclear test veterans who had suffered ill health as the result of exposure to radiation.

Soon after this publicity, a group of veterans, all of whom had served in the Pacific during the tests, formed the British Nuclear Test Veterans Association (BNTVA). Mr McGinley was their Chairman. Their objectives were to gather information about their exposure to radiation and its likely effects, to press for further research and to seek financial recompense for any harm suffered, either by claiming for war pensions or by making claims for damages.

As a result of the publicity described above, in January 1983, questions were raised in Parliament about the possibility that the veterans had been injured by exposure to radiation. The attitude of the Ministry of Defence (MOD) was, and is, that the men had not been exposed to excessive levels of ionising radiation. However, the Government commissioned a health survey of the men involved in the tests, to be conducted by the National Radiological Protection Board (NRPB).

The survey sought to identify all the men who had been present in the area at the time of the tests and to compare them with a similar sized cohort of men of similar backgrounds who had not attended the tests. About 22,000 nuclear test veterans were identified. The survey examined death registration documents for causes of death and also the incidence of cancer using the National Health Service Cancer Register. The report, issued in November 1988, disclosed that, among the veterans, there was no excess mortality either from all causes or from all cancers. However, there was a significantly higher level of deaths from leukaemia and multiple myeloma among the participants than among the controls. The report expressed the view that this was probably a chance result, to be explained by the very low level of deaths from these causes among the control group. When the deaths among the participants were compared with the national mortality figures for those conditions, the excess among the participants was only slight. It was concluded that participation in the nuclear tests was not associated with any detectable effect on expectation of life or the risk of developing cancer. It added:

“that there may well have been small hazards of leukaemia and multiple myeloma associated with participation in the programme, but their existence is certainly not proven and further research is desirable”.

The NRPB carried out two more surveys and reported in 1993 and 2003, but the later conclusions did not differ significantly from the earlier ones. The methodology and conclusions of all three surveys were criticised by the BNTVA and subsequently by the claimants in the group action, principally on the ground that they looked only at deceased, but not living, veterans.

Meanwhile, in 1985 an action for damages was begun by a veteran named Melvyn Pearce. He developed a lymphoma in 1978 and alleged that it had been caused by exposure to ionising radiation during the tests. The allegations of negligence in Pearce v. The Secretary of State for Defence and Ministry of Defence [1988] AC 755 were based on both exposure to prompt high dose radiation (that is, as a result of proximate presence at one or more of the nuclear tests) and delayed, low dose, exposure (as a consequence of ingesting radionuclides from fallout while swimming in contaminated waters or eating contaminated fish). It was also alleged that the MOD had deliberately exposed the men to radiation as an experiment to see what the effects were. The MOD denied liability and sought to rely on immunity from suit provided by section 10 of the Crown Proceedings Act 1947. It did not plead the Limitation Act. The issue of immunity was treated as a preliminary issue and in due course went to the House of Lords which held in the Mr Pearce’s favour, leaving him free to proceed to trial. However, soon afterwards, the claim was discontinued, because the Mr Pearce’s team concluded that it could not prove a causal link between the exposure to radiation and the development of cancer.

In 2008, the results of a study carried out by a team of scientists led by Dr R.E. Rowland of the New Zealand Institute of Molecular Biosciences were published as “Elevated chromosome translocation frequencies in New Zealand nuclear test veterans” (“the Rowland Study”). Using a technique called “mFISH”, which involved “painting” chromosomes enabling breaks and rearrangements to become visible, the team had examined the damage to the chromosomes of 49 New Zealand veterans who had served on board two frigates positioned between 20 and 150 nautical miles upwind from certain explosions which were part of the United Kingdom nuclear test programme. The Rowland study found that the 49 crew members examined had on average three times as many chromosomal aberrations than 50 controls who had not taken part in the tests. This finding was regarded as significant and probably attributable to long term genetic damage resulting from ionising radiation during and after the nuclear test. An attempt was made to estimate the radiation dose from the level of translocations. The median dose for the veterans was estimated to be far in excess of the median estimated dose of the controls. However, the study made no claim for any correlation between the raised levels of chromosomal aberrations and the incidence of any illness.

Meanwhile, in 2002, several veterans instructed two different firms of solicitors with a view to bringing claims for damages. Legal Aid was granted for the investigation of the claims. On 23 December 2004 a claim form was issued in respect of a group action brought by or on behalf of 1,011 former servicemen, including the applicants, against the MOD. Damages were sought in respect of injury, disability or death alleged to have occurred in consequence of the exposure of the former servicemen to ionising radiation as a result of their presence near, or involvement in the aftermath of, the nuclear tests.

In August 2005 public funding was withdrawn from the claimants on the ground that the legal merits were insufficient to justify the case being pursued at public expense. It was agreed between the parties to stay the proceedings, until the Rowland study had been published. The stay was lifted on 1 September 2006 and a different firm of solicitors took over, after arrangements had been made for the matter to proceed on a conditional fee basis. Under the conditional fee arrangement, the solicitors would be paid only if the claimants were successful. The claimants purchased an insurance policy, known as “ATE (after the event) insurance”, to cover the MOD’s costs, should they be ordered against them.

On 29 December 2006 Master Particulars of Claim, containing more detailed allegations, were served. It was alleged that the nuclear tests had been negligently planned and executed, in that, inter alia, protective clothing and equipment was not supplied, to prevent the exposure of the servicemen to ionising radiation both at the time of each blast and subsequently, in the form of fall-out, and steps were not taken to prevent servicemen from swimming in contaminated water and eating contaminated seafood in the aftermath of the tests. In addition, it was alleged that the authorities failed properly to monitor the extent to which each serviceman was exposed to ionising radiation, both during and after each test. The claimants further claimed that they had suffered a variety of illnesses known to result from radiation exposure and relied in particular on the mFISH methodology, used by the Rowland study (see paragraph 10 above), as a reliable and specific indicator of genetic damage caused by exposure to ionising radiation. The Master Particulars of Claim included a partial list of the illnesses which the claimants, as a group, contended to have suffered as a result of their exposure to radiation, but individual medical reports were not included. In connection with the question whether the claims were timebarred, the applicants contended that it was only with the availability of the results of the Rowland study in 2007 that “scientific evidence became available that indicated that the conditions suffered by the veterans were attributable to exposure during the tests”. Furthermore, they argued that where delay had occurred, which in most cases was not great, this was explicable by funding difficulties and the MOD’s attitude of denial, and that the cases should be allowed to proceed under Section 33 of the Limitation Act 1980 (“the 1980 Act”: see paragraphs 27-29 below).

The MOD denied liability, alleging that all proper precautions were taken to protect service personnel from exposure to ionising radiation and that, in most cases, the actual exposure of the men was no more than the background radiation they would have experienced in the United Kingdom. In addition, the MOD contended that the claimants would be unable to prove, individually or as a group, that their illnesses were attributable to their presence during the nuclear tests, rather than other factors. The MOD also argued that the claims were time-barred under the terms of the 1980 Act, which requires a claimant to institute proceedings within three years of the date on which the cause of action accrued or “the date of knowledge (if later) of the person injured”. It was contended on behalf of the Ministry of Defence that the claimants had relevant knowledge prior to 23 December 2001 (that is, before the three-year period preceding the institution of proceedings). In relation to the discretionary power under section 33 of the 1980 Act, it was argued that the passage of time since the tests had eroded the cogency of the evidence and that the overall merits of the claim were weak, particularly in relation to causation.

A group litigation order was made, which decided inter alia that the issue of limitation should be tried as a preliminary point. On the agreement of the parties, five test cases were selected by each side for the purpose of the preliminary hearing to determine the limitation issues. On 10 April 2008 the MOD informed the veterans’ solicitor that it intended to serve expert evidence going to the weakness of the claims on causation. The following day the MOD was granted leave to serve limited expert evidence in the fields of radiobiology, epidemiology and nuclear physics. The applicants were subsequently granted leave to serve expert evidence in the same disciplines. The selection of the test cases was completed by August 2008. Disclosure was provided by the parties, but was limited to documents relevant to the limitation issues only.

The hearing took place over ten days in January and February 2009 before Foskett J, who heard and considered expert evidence in relation to the development of scientific knowledge of the effects of ionising radiation as well as evidence from the claimants about their knowledge and belief about the cause of their injuries. He delivered his judgment on 5 June 2009. Although the claimants had complained in their Particulars of Claim of exposure to prompt radiation, it was agreed early in the trial that none of the veterans had been sufficiently close to the explosions to have been affected by prompt radiation.

At the hearing, without issuing any application, the MOD invited the judge to strike out the claims or, in the alternative, to give summary judgment in favour of the MOD, on the ground that the claims had no prospect of success. Foskett J declined to do so, ruling that these requests were premature, since causation was essentially a question of fact and since the facts, dependent on lay and expert evidence, had not been established at the current stage of the proceedings. Moreover, he did not accept that the claimants’ case on causation was so weak that the claims were bound to fail. However, he accepted that, if any of the cases were to clear the limitation hurdle and proceed to trial, there was a risk that they might subsequently be abandoned because of difficulties in establishing causation, and stated that, if invited to do so by the defendant, he would consider how the Ministry of Defence could be protected in terms of costs and other adverse consequences should this occur.

On the limitation issue, the judge considered himself bound by previous case-law to hold that “knowledge” within the meaning of section 14(1)(b) of the 1980 Act in effect meant “belief”, so that each claimant acquired the relevant knowledge at the moment in time when he formed the belief that his injury was capable of having been caused by exposure to radiation. Following this approach, he examined each case to determine the moment at which the veteran had manifested not merely suspicion but a firm belief that his illness was attributable to exposure to radiation. He found that five of the lead claimants had not had knowledge of their claims, within the meaning of section 14 of the 1980 Act, until less than three years before they began proceedings, so they were entitled to proceed with their claims as of right. He further considered that the claims of the other five test claimants were prima facie statute barred, but exercised his discretion under section 33 of the 1980 Act so as to allow the actions to proceed. In particular, he emphasised that the need to avoid an apparent injustice, both in the minds of the claimants and of the general public, was a weighty factor to be taken into account. The judge awarded the claimants their costs, estimated at GBP 11.8 million, to be paid by the MOD.

The MOD appealed to the Court of Appeal, which gave judgment on 19 November 2010 (Ministry of Defence v. A.B. and Others [2010] EWCA Civ 1317). The Court of Appeal upheld the trial judge’s refusal to strike out the case, but on different grounds. They considered that the pleadings disclosed reasonable grounds for bringing the case and that as there had been no abuse of process nor failure to comply with procedural rules, it would be wholly inappropriate to strike the cases out. The Court of Appeal considered that the MOD’s application for summary judgment should be rejected on procedural grounds, because no formal notice had been given.

With regard to the limitation issues, the Court of Appeal applied broadly the same test as Foskett J, although it considered that in relation to nine of the ten test cases, he had applied too high a threshold. In the Court of Appeal’s view, only one case, that of Mr Sinfield (the first applicant’s husband), who was diagnosed with non-Hodgkin’s lymphoma in October 2005, had been brought in time. In relation to the discretion under section 33, the Court of Appeal held that the trial judge had erred in law in holding that the need to avoid an apparent injustice, both in the minds of the claimants and of the newspaper-reading public, was a weighty factor to be taken into account. The court further held that the broad merits test should be a prominent consideration when deciding whether or not to exercise the discretion. The resource implications both for the MOD and Treasury solicitors and for the courts would be enormous, and it would be inappropriate to allow an expensive and resource-consuming trial to take place if the prospects for the claimants’ success were slight. On the other hand, if the prospects of success “were even reasonable, those resource considerations fade into relative insignificance”. The Court of Appeal next examined the likely strength of the applicants’ case on causation. They observed that the burden of proving that the alleged tort caused the alleged injury lay on the claimant, on the balance of probabilities. In order to determine whether the section 33 discretion should be exercised, the court had to assess the broad merits of the material put before. The claimants had not produced evidence of how they intended to estimate the doses of radiation to which they were exposed and the court considered that the best they could hope for would be to show low but significant exposure. In addition, on the state of the evidence before the court, there was no prospect that the claimants would be able to satisfy the “but for” test of causation by showing that their illnesses were at least twice as likely to have been caused by their exposure to radiation during the tests than by other causes, for example, smoking. Nor was there any possibility, on the evidence as it stood, that the claimants would be able to rely on the synergistic inter-action of two different causative agents. The foundation of medical evidence had not been laid. The court therefore concluded that the claimants’ case on causation faced very great difficulties. They accepted that there was a theoretical possibility that further evidence might become available if the case were permitted to proceed, but nonetheless underlined that they had to apply the broad merits test under section 33 on the basis of the evidence which the claimants had put before the court. When considering, in relation to each of the nine time-barred test cases, whether to exercise its discretion under section 33, the Court of Appeal found that the merits of each case were weak on causation and that the prospects of success were therefore weak. In addition, the delay in bringing the claims would be prejudicial to the MOD, through the loss of available witnesses. In consequence, the court declined to exercise its discretion to allow the time-barred cases to proceed.

The Court of Appeal concluded with the following words:

“We recognise that these decisions will come as a great disappointment to the claimants and their advisers. We readily acknowledge the strength of feeling and conviction held by many of the claimants that they have been damaged by the Ministry of Defence in the service of their country. The problem is that the common law of this country requires that, before damages can be awarded, a claimant must prove not only that the defendant has breached its duty of care but also that that breach of duty has, on the balance of probabilities, caused the injury of which the claimant complains. These can be heavy burdens to discharge.

If we look back to 1985, Melvyn Pearce won a significant victory in the House of Lords, which established that the MOD could not rely on the immunity of the Crown from suit. Yet, within a few months of that victory, Mr Pearce abandoned his claim because his advisers recognised that they could not satisfy the burden of proving that Mr Pearce’s cancer had probably been caused by radiation exposure; for his personal position, the victory was entirely pyrrhic. As we noted earlier, the abandonment of that case comprised a warning to those who wished to follow after. Causation would be a potentially difficult issue and would have to be addressed if any such actions were to have a prospect of success. Thus, it was no surprise that one of the first steps taken by [the solicitors] originally instructed by Mrs Brothers, was to seek evidence to establish causation (which was not forthcoming). Further, although the MOD raised the issue of causation both generically and, later, in the individual cases, no attempt was apparently made when the lead cases were identified to obtain specific evidence on this topic. It may be that it is not yet possible for a doctor to say that a condition such as cancer has probably been caused by radiation as opposed to any of the other possible causes but, until such evidence is available, claimants will face the difficulty which caused Mr Pearce to abandon his claim.

We have no doubt that it will appear that the law is hard on people like these claimants who have given service to their country and may have suffered harm as a result. No doubt partly with this background in mind, Parliament has provided that servicemen who have been exposed to radiation which might have caused them injury will be entitled to a war pension. Of course, a war pension is not as financially beneficial as common law damages but it is some compensation. Of particular importance on this issue, on an application for a war pension, the burden of proving causation is reversed; thus, the MOD has to exclude the possibility that the applicant has been harmed by radiation. We cannot say that any of these claimants who have, so far, not been awarded pensions will succeed in their attempts to do so but their chances of success must be far greater with the MOD having to prove the absence of causation than they ever were while the claimants had to establish it.”

The claimants were ordered to pay 90% of the MOD’s costs of the first instance trial on the preliminary issues of limitation, and all of the MOD’s costs of the appeal. These costs, in excess of GBP 5.6 million, were paid by the applicants’ ATE insurers.

The nine lead claimants who had lost before the Court of Appeal appealed to the Supreme Court, which gave judgment on 14 March 2012 (Ministry of Defence v. A.B. and Others [2012] UKSC 9). The Supreme Court was divided by four judges to three as to the application of the 1980 Act in this case. The minority (Lord Phillips, Lady Hale and Lord Kerr) held that the Court of Appeal had confused knowledge with belief and that, although the claimants believed that their injuries were caused by exposure during the nuclear tests at the time they issued their claim, they lacked knowledge of attributability because at that time there was no available scientific evidence. The majority (Lords Wilson, Walker, Brown and Mance) agreed with the Court of Appeal that “knowledge” should be equated to belief held “with sufficient confidence to justify embarking on the preliminaries of the issue of a writ, such as submitting a claim to the proposed defendant, taking legal and other advice and collecting evidence”. The majority found that each of the nine appellants had believed that his exposure to radiation had put his health at risk and, on becoming ill, had believed that his illness was attributable to his presence during the nuclear tests, on that each had attained the requisite state of knowledge more than three years before the commencement of proceedings. It was conceded before the Supreme Court by counsel for the claimants that they lacked evidence with which to establish a credible case that the injuries were caused by the tests. The majority also agreed with the Court of Appeal’s approach to the exercise of discretion under section 33 of the 1980 Act and upheld the refusal to allow the claims to proceed.

All members of the Supreme Court agreed that the claims had no real prospects of success. Lord Phillips observed that:

“The current difficulties facing the veterans in relation to causation appear to me to be very great indeed. The Rowland report assists them a little but it does not have the significance that [their counsel] has sought to attach to it.

The Rowland report shows that many of the New Zealand veterans had a raised incidence of chromosome translocation that suggested exposure to abnormal, albeit low level, fall-out radiation. But this was not true of all the veterans assayed. The assays of some show no abnormalities. This is no more than one would expect. Exposure to radiation results from inhalation or ingestion of fall-out. It may result from swallowing sea water while swimming or eating contaminated fish. Thus it can vary from one man to the next. The most that can be deduced from the Rowland report is that it is probable that individual veterans were exposed to low level fallout. There is currently no evidence that there is any correlation between the raised incidence of chromosome translocation of individual New Zealand veterans and the incidence of cancer or any of the other conditions of which the claimant veterans complain. ... The Rowland report results simply constitute a biomarker suggesting exposure to radiation.

The most the veterans as a group are currently in a position to establish is that there is a possibility that some of them were exposed to a raised, albeit low level, of fall-out radiation and that this may have increased the risk of contracting some at least of the injuries in respect of which they claim. This falls well short of establishing causation according to the established principles of English law. ...

For these reasons I do not believe that the veterans’ claims have a reasonable prospect of success.”

Lord Wilson accepted that the Court of Appeal had wrongly elevated the issue of causation to be the determining factor under section 33, but nonetheless concluded:

“It is undesirable that a court which conducts an inquiry into whether a claim is time-barred should, even at the stage when it considers its power under section 33, have detailed regard to the evidence with which the claimant aspires to prove his case at trial. But the ten claims placed before Foskett J were of particular complexity; and the nature of the submissions made to him on behalf of the appellants about the meaning of knowledge for the purpose of section 14(1) of the 1980 Act led him to undertake, over ten days of hearing and expressed in 885 paragraphs of judgment, a microscopic survey of the written evidence available to the parties, in particular to the appellants, in relation to causation. At all events the result was to yield to the Court of Appeal an unusual advantage, namely a mass of material which enabled it with rare confidence to assess the appellants’ prospects of success. It expressed its conclusions in terms of the ‘very great difficulties’ which confronted the appellants in that regard. But, in line with the realistic concession made by [counsel for the appellants] in this court, the fact is that, for the reasons set out by Lord Phillips ... their claims have no real prospect of success. In my view it would have been absurd for the Court of Appeal to have exercised the discretion to disapply section 11 so as to allow the appellants to proceed in circumstances in which the next stage of the litigation would be likely to have been their failure to resist entry against them of summary judgment ...”

On 14 November 2012 the Supreme Court made an order relating to the costs of the appeal, which provided that the applicants should pay the MOD’s costs of the appeal and that the stay of execution in respect of the previous costs orders should be removed.

Following the above proceedings, one of the applicants (Ms Sinfield) had an absolute right to go forward to trial, since her case had not been found to be time-barred. The other applicants (whose cases had been stayed while the ten test cases went ahead) had to consider whether, in the light of the Supreme Court’s judgment, their claims were time-barred. A certain number of the applicants’ claims were not time-barred, because, like Mr Sinfield, they had become ill within three years of the commencement of proceedings. This group of applicants therefore wished to proceed to trial. The other applicants, whose claims were prima facie time-barred, took the view that much of the assessment of the Supreme Court, in relation to the question whether to exercise the discretion under section 33 of the 1980 Act, had been concerned with the difficulties that the claimants would face in establishing causation. However, the applicants considered that there was increasing evidence establishing that the illnesses they suffered were caused by exposure during the tests. This group of applicants also wished to proceed to trial.

Under the terms of the group litigation order, the MOD’s costs of the preliminary limitation proceedings were paid by all the claimants within the group, in equal proportions, whether or not their claims had been brought out of time. In a letter dated 12 September 2012, the MOD insisted that, before pursuing further litigation, the applicants had to obtain ATE insurance to cover them for the MOD’s costs should their claims fail. It proved impossible for the applicants to obtain such insurance, since the ATE insurers had already made large payments following the costs orders made by the Court of Appeal and Supreme Court. Legal aid, which was withdrawn in 2005, will not be re-awarded. None of the applicants is in a position to contribute to the funding of the litigation on a private basis. In consequence, none of the applicants’ claims proceeded to trial.

The background to the adoption of the Limitation Act 1980 (“the 1980 Act”) is set out in detail in the Court’s judgment in Stubbings and Others v. the United Kingdom, 22 October 1996, §§ 28-37, Reports of Judgments and Decisions 1996IV.

Section 11 of the 1980 Act deals with special time limits for actions in respect of personal injuries and, in its relevant parts, reads as follows:

“11 (1) This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person. ...

(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5) below.

(4) Except where subsection (5) below applies, the period applicable is three years from—

(a) the date on which the cause of action accrued; or

(b) the date of knowledge (if later) of the person injured...”

Section 33 of the 1980 Act further provides for discretionary exclusion of the time limit for actions in respect of personal injuries or death in the following terms:

“(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—

(a) the provisions of section 11 or 12 of this Act prejudice the plaintiff or any person whom he represents; and

(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;

the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.

(a) the length of, and the reasons for, the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 or (as the case may be) by section 12;

(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;

(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.

(4) In a case where the person injured died when, because of section 11, he could no longer maintain an action and recover damages in respect of the injury, the court shall have regard in particular to the length of, and the reasons for, the delay on the part of the deceased.

(5) In a case under subsection (4) above, or any other case where the time limit, or one of the time limits, depends on the date of knowledge of a person other than the plaintiff, subsection (3) above shall have effect with appropriate modifications, and shall have effect in particular as if references to the plaintiff included references to any person whose date of knowledge is or was relevant in determining a time limit.

(6) A direction by the court disapplying the provisions of section 12(1) shall operate to disapply the provisions to the same effect in section 1(1) of the Fatal Accidents Act 1976...”


Alena Poláčková;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant, Ms Lada Vyacheslavovna Malanicheva, is a Russian national who was born in 1968 and lives in St Petersburg.

On 18 December 1985 the applicant attacked a classmate and caused the victim permanent injuries by cutting her face. Two days after the attack, the applicant voluntarily committed herself to a psychiatric facility. On 11 February 1986 a panel of psychiatrists concluded after an inpatient examination of the applicant’s mental health that despite having symptoms of a psychopathic disorder she was able to control her actions on the day of the attack and was competent to stand trial.

On 28 May 1986 she was convicted of aggravated hooliganism by the Vyborgskiy District Court of Leningrad (Выборгский районный народный суд г. Ленинграда) and sentenced to three years’ imprisonment. In 1988 she was released from prison.

Between 1985 and 1992 the applicant’s name was on the hospital register of persons suffering from psychiatric disorders. It was removed after remission, with the final diagnosis being disinhibited psychopathy.

On 6 August 2002 the Primorskiy District Court of St Petersburg (Приморский районный суд г. Санкт-Петербурга) (“the District Court”) dismissed an application by psychiatrists for a psychiatric examination of the applicant without her consent because there was no evidence she was suffering from a severe psychiatric disorder. In the course of those proceedings, the municipal healthcare authorities, psychiatric facilities and domestic courts exchanged information on the applicant’s mental health in internal communications.

In 2006 the applicant, represented by a lawyer, brought a libel action in the District Court against two psychiatric facilities and the municipal healthcare authorities. She challenged the validity of her medical records, the fact that between 1985 and 1992 she had been on the hospital register of persons suffering from psychiatric disorders, as well as references to various aspects of her mental health in the internal communications between the healthcare institutions and in their submissions to the courts. She also brought other, accessory claims.

The defendants applied to the court for an order for a psychiatric report to confirm the validity of the applicant’s medical records. However the court refused to grant such an order because the applicant was categorically opposed to it. At the same time, the trial court took account of the provision in Article 79 of the Civil Procedure Code that a fact which needs to be proven by an examination by experts is considered to be proven without such an examination when a party to a dispute refuses to take part in the examination or furnish necessary materials.

On 29 March 2006 the District Court dismissed the applicant’s libel action. The court highlighted that it was for the medical professionals to give any diagnosis about the applicant and concluded that she had failed to prove that there had been any errors in her medical records and or that there had been no grounds to keep her on the hospital register between 1985 and 1992. Accordingly, the references to her medical history and state of mental health in the internal communications between the healthcare institutions had not been libellous. At the same time, the District Court ruled in favour of the applicant’s claim for damages for the failure by one of the psychiatric institutions to provide her with a copy of her medical records and awarded her the amount she had claimed of 500 euros (EUR).

On 15 May 2006 the judgment was upheld on appeal by the St Petersburg City Court (Санкт-Петербургский городской суд).

According to the applicant’s submissions to the Court, in 2008 there was a criminal investigation against her on suspicion of theft. After spending several months in detention, the criminal case against her was terminated by the domestic courts because she was ruled incompetent to stand trial. On 30 September 2011 she was transferred to a psychiatric facility for treatment, without her consent. No documents were provided by the applicant in relation to any of those proceedings.


Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

The applicant, Mr Franciszek Irzyk, is a Polish national who was born in 1951 and lives in Wiśniowa. He was represented before the Court by Ms P. Borzymowska, a lawyer practising in Krakow.

The Polish Government (“the Government”) were represented by their Agent, Mrs J. Chrzanowska of the Ministry of Foreign Affairs.

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

The applicant was an activist for the political party “Samoobrona”. During one of the party meetings he met a certain E.Z., who had been a member of the same party since 2002.

In 2005 E.Z. had some financial problems and was seeking employment opportunities. She asked the applicant whether he could find a job for her. The applicant put E.Z. in contact with S.Ł., a deputy in the Polish parliament (poseł na Sejm) who was a member of the same party. In December 2005 E.Z. went to Warsaw to meet S.Ł. They met at first in the Sejm building and subsequently went to the Sejm hotel, where E.Z. and S.Ł. had sexual intercourse. S.Ł. told E.Z. that she would have to obey his orders if they were to work together.

In 2006 a so-called “sex scandal” erupted in Poland. It involved public figures, including activists of the Samoobrona party who had offered and accepted personal benefits of a sexual nature in connection with exercising public functions.

On 6 December 2006 the applicant telephoned E.Z. to ask her whether she had given any information to the press. He referred to an article “Praca za seks” (“Work for sex”) published in the daily Gazeta Wyborcza on 4 December 2006.

On 8 December 2006 E.Z. was heard as a witness by the prosecutor in the investigation into the scandal. In the course of her interview she described her relationship with S.Ł. and with the applicant.

On 9 December 2006 the applicant again phoned E.Z. to ask her whether she had been heard as a witness by the Kraków Regional Prosecutor. E.Z. said that she had not. The applicant also told E.Z. that S.Ł. had experienced difficulties as a result of the investigation into the so-called “sex scandal” and the sexual conduct of some Samoobrona party members. The applicant asked E.Z. if he could talk to her again later the same day. Their phone conversation was recorded by journalists from the TV channel “TVN”, who had invited E.Z. to participate in one of its popular programmes.

The applicant did not telephone E.Z. again that day. E.Z. tried to reach him five times without success and finally left a message on his voice mail.

The applicant phoned E.Z. on 10 December 2006 and asked her if she had been heard by the prosecutor the previous day. E.Z. replied that she had not.

On 12 December 2006 E.Z. phoned the applicant using the telephone number provided by the TVN channel. The conversation was recorded by journalists working for the station. The applicant again asked E.Z. whether she had been heard by the prosecutor and when she confirmed that she had, he started to instruct her as to how she should testify when she was questioned again. He told her not to accuse anyone and not to disclose that she had had sexual intercourse with Samoobrona activists. He also suggested that she testify that relations between employees were “normal” at the Kraków party headquarters. E.Z. understood these words as amounting to a form of incitement to give false testimony and a form of protection for S.Ł. by withholding information about his sexual affairs with women who were members of the Samoobrona party.

On 14 June 2007 the applicant was heard as a suspect by the Łódź District Prosecutor.

On 29 February 2008 a bill of indictment against the applicant was prepared and lodged with the Kraków District Court on 3 March 2008.

On 12 January 2007 the Łódź Regional Prosecutor issued a decision allowing minidiscs containing recordings of the telephone conversations with E.Z. to be included in the applicant’s case-file as evidence. The applicant was informed of his right to appeal against this decision within a period of 7 days. He did not appeal.

On 13 January 2009 the Kraków District Court found the applicant guilty of attempted obstruction of criminal proceedings and incitement to give false testimony and sentenced him to 8 months’ deprivation of liberty suspended for a probationary period of 4 years. The court heard several witnesses including E.Z., the journalists who had recorded the conversations, and the applicant himself.

The testimony of E.Z. given in the investigation phase of the proceedings was consistent with the contents of the recorded telephone conversations. However, in the proceedings before the trial court E.Z. decided to change her version of events and submitted that the applicant had in fact only requested her not to disclose to the prosecutor that they had had sexual intercourse. The court found the testimony given by E.Z. in the judicial phase of the proceedings to be not credible. It held that, “the witness’s (E.Z.’s) submissions as regards the change of her version of events as well as her explanation of some of the accused’s statements made in the telephone conversation are illogical and naïve”.

The court went on to say that the applicant’s conviction had been based on the “entire evidentiary material, in particular on the contents of the telephone conversations with E.Z. recorded between 6 and 12 December 2006”. However from the court’s reasoning it is evident that, after it had found E.Z.’s statements not to be credible, the actual basis for the conviction was the recording of the telephone conversations.

On 3 March 2009 the applicant’s lawyer appealed against the firstinstance judgment. He claimed, in particular, that the first-instance court had not respected the principle of free assessment of evidence. He further asserted that there had been a violation of Article 424 of the Code of Criminal Procedure (see relevant domestic law, below) since the firstinstance court had based its judgment exclusively on evidence which weighed against him and ignored facts which weighed in his favour. Moreover, it had done so without any detailed reasoning and without indicating which facts it had found to be proved and on what evidence it had based its findings.

In the reasoning set out in the appeal, the applicant’s lawyer explained that:

“the court had wrongly assessed the testimony given by E.Z. and her motivation; her behaviour was not spontaneous; it was inspired by journalists who exercised pressure on her and manipulated her...”

The applicant’s lawyer concluded his appeal by the following words:

“the overall assessment of evidence leads to the clear conclusion that the accused is a victim of carefully planned and precisely executed journalistic provocation and the prohibited acts referred to in the bill of indictment are groundless and find no support in the collected evidence”.

On 6 May 2009 the Kraków Regional Court upheld the challenged judgment, finding that the first-instance court had assessed the evidence properly, “in accordance with personal experience and Article 7 of the Code of Criminal Procedure”, which sets out the principle of free assessment of evidence (see relevant domestic law below).

A cassation appeal was not available in the present case.

Article 13 § 1 provides as follows:

“Whoever with the intent to commit a prohibited act directly attempts its commission through his conduct which, subsequently however does not take place, shall be held liable for an attempt”.

Article 13 § 2 provides as follows:

“Whoever, willing that another person should commit a prohibited act, induces the person to do so, shall be liable for incitement”.

Article 233 § 1 provides as follows:

“Whoever, in giving testimony which is to serve as evidence in court proceedings or other proceedings conducted on the basis of law, gives a false testimony or conceals the truth shall be subject to the penalty of deprivation of liberty of up to three years.”

Article 239 § 1 provides as follows:

“Whoever obstructs or frustrates penal proceedings by aiding a perpetrator to evade penal liability and especially whoever hides the perpetrator or obliterates physical evidence of the offence or undergoes penalty for a sentenced person shall be subject to the penalty of deprivation of liberty for a term between three months and five years.”

Article 7 provides as follows:

“The authorities conducting the proceedings shall make their decisions on the basis of their own conviction, upon all evidence taken assessed at their own discretion, with due consideration to the principles of sound reasoning, knowledge and personal experience.”

Article 242 provides, in so far as relevant, as follows:

“The reasoning [of a judgment] should contain:

indication which facts have been found by the court to be proven or unproven, on what evidence it based its findings in this respect and reasons for which it did not accept the evidence to the contrary.”


Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos

The applicant, Mr Christopher Adrian Gadd, is a British national who was born in 1969 and lives in Hampshire. He was represented before the Court by Mr E. Metcalf, a barrister at Monckton Chambers in London.

The British Government (“the Government”) were represented by their Agent, Ms M. Macmillan of the Foreign and Commonwealth Office.

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

The applicant qualified as a solicitor on 1 September 2006. He joined the firm WB Legal LLP (“WBL”) in March 2008. At that time WBL was a limited liability partnership with two members, namely MB, the managing partner, and a private company called WB Legal Training Limited (“WBLTL”).

On 31 August 2008 the applicant became a salaried partner of WBL and a director of WBLTL.

After he became a salaried partner of WBL and a director of WBLTL the applicant became aware that MB was defrauding clients and reported him to the Solicitor’s Regulation Authority (“SRA”). MB resigned from WBL and WBLTL in January 2009 and was later struck off the roll of solicitors.

Following MB’s resignation, the applicant continued to practice through WBL. As three years’ post-qualification experience was required before a solicitor could supervise a practice alone, another solicitor, PW, became a member of WBL and a director of WBLTL.

WBL remained in financial difficulty and was purportedly closed on 30 March 2009. On 2 April 2009 WBLTL, which was already authorised by the SRA to trade as a solicitor’s practice, was renamed Christopher Gadd Limited (“CGL”). Thereafter the applicant and PW practised through CGL, taking some of the client files of WBL with them.

On 3 April 2009 WBL was placed into administration by one of its creditors.

On 18 May 2009 the SRA wrote to the applicant reminding him that he and PW were responsible for the files, documents, and client money of WBL. In that letter it stated that it was satisfied, in light of assurances previously given by the applicant, that he and PW had attended to the closure of WBL correctly, but warned that the matter could be reinvestigated in future.

On 2 September 2009 PW resigned from CGL as the applicant, having achieved three years’ post qualification experience, was qualified to supervise the practice alone.

On 4 September 2009 the SRA informed the applicant that information received from WBL’s administrators suggested that the closure of the firm had not been dealt with in accordance with its regulatory requirements.

On 15 and 16 September 2009 members of the SRA’s Practice Standards Unit visited the offices of CGL to assess that firm’s compliance with the Solicitors’ Account Rules (“the Rules”), the Solicitor’s Code of Conduct (“the Code”) and other issued codes and guidance. The resulting report dated 28 September 2009 was sent to the applicant. It identified a number of breaches and requested confirmation that these would be rectified.

On 19 October 2009 the SRA’s Forensic Investigation Unit commenced an investigation into WBL. On 18 November 2009 a Forensic Investigation Report (“the Report”) concluded, inter alia, that CGL appeared to be the successor practice to WBL; that the administrators of WBL had complained that the applicant had not been helpful in effecting the administration of the firm; that the administrators had received a number of enquiries and complaints from former clients of WBL; and that the client account of WBL appeared to have a shortfall of almost GBP 240,000.

The Report formed the basis of a case-note submitted to the SRA’s Panel of Adjudicators. The case-note identified a number of breaches of the Rules and the Code in respect of WBL and recommended that the SRA exercise its powers of intervention in respect of WBL and any other firm or recognised body of which the applicant or PW were members, directors, managers or owners in order to protect the interests of the clients and former clients of WBL. The case-note indicated that due to the urgency of the matter no explanation had been sought from the applicant or PW.

On 7 December 2009 the Panel resolved to exercise its powers in accordance with the recommendations made in the case-note. As a result the accounts of both WBL and CGL were frozen and the applicant’s practising certificate was automatically suspended, leaving him unable to practise. Control of CGL passed to a nominated agent appointed by the SRA to manage the firm. The case was referred to the Solicitor’s Disciplinary Tribunal (“the Tribunal”).

The applicant was notified of the intervention by fax on the same day. The notice indicated the terms of the Panel’s resolution but the applicant was not provided with a copy of the Report or the case-note. In the course of a telephone call with the SRA on 7 December 2009 and a meeting on 8 December 2009 the applicant was informed that under paragraph 6(4) of Schedule 1 to the Solicitors’ Act 1974 (“the 1974 Act”) he was entitled to apply to the High Court within eight days of the service of the notice for an order directing its withdrawal.

On 17 December 2009 the SRA disclosed the Report to the applicant and requested his explanation of the issues identified within it.

The applicant subsequently applied to the SRA for his practising certificate to be reinstated. On 4 January 2010 it was restored subject to a number of restrictive conditions. However, CGL remained under the control of the SRA’s nominated agents and was eventually placed into administration on 16 April 2010. The applicant was unable to obtain alternative employment as a solicitor due to the outstanding disciplinary proceedings against him.

The professional disciplinary proceedings against the applicant came before the Tribunal on 13 December 2010. The Tribunal found that there had been breaches of the Code and the Rules in respect of both WBL and CGL but it did not find that the applicant had been dishonest or reckless. It ordered that the applicant be suspended from practice as a solicitor for a period of six months commencing on 13 December 2010 and recommended to the SRA that following the end of the suspension period he should only practise in approved employment.

On 6 December 2010 the applicant had issued a claim for damages against the SRA in the High Court under the Human Rights Act 1998 (“HRA 1998”). In respect of the applicant’s Convention rights, the particulars of claim asserted that his Article 6 § 1 rights had been breached by the provision of the eight-day limitation period, which precluded effective access to the courts; that as a consequence, he had been deprived of his property rights in CGL, in breach of Article 1 of Protocol No. 1; and that he was entitled to damages for the loss of an opportunity to challenge the intervention. He further complained that the intervention had been contrary to section 28 of the Legal Services Act 2007.

At a hearing on 8 September 2011 the claims concerning the Legal Services Act 2007 were struck out by consent. This left a single issue for determination by the High Court; namely, whether the eight-day time-limit contained in paragraph 6(4) of Schedule 1 to the Solicitors Act 1974 was incompatible with the applicant’s human rights.

The SRA applied to strike out the applicant’s claim and/or for summary judgment to be entered in its favour.

On 13 April 2012 the applicant applied for permission to amend his particulars of claim to assert, inter alia, that there had been a breach of the principle of natural justice, a breach of the rule of law and misfeasance in public office. He also sought to reintroduce a claim for breach of statutory duty. In respect of his Convention complaints, the amended particulars of claim averred that even if the intervention regime was in general compatible with the HRA 1998, the manner in which it was operated by the SRA – and in particular the process which led to the decision to intervene in CGL – had breached his Convention rights on the specific facts of his case.

Both applications came before Mrs Justice Sharp on 19 April 2012. She identified three reasons why the claim in relation to the statutory timelimit was hopeless and doomed to failure. First of all, the domestic courts had established that the statutory scheme for intervention was compatible with the Convention (see, for example, the decision of the Court of Appeal in Holder v. The Law Society [2003] 1 WLR 1059, Sheikh v. the Law Society [2006] EWCA (Civ) 1577 and Adams v. The Law Society [2012] EWHC 980 (QB)). Secondly, as the eight-day time-limit was prescribed by statute and not by The Law Society, the SRA could not be held liable for damages or for any breaches of the applicant’s human rights that might result from it. Thirdly, the applicant’s claim was academic since he had not sought to challenge the intervention within any other period which he himself considered reasonable but instead had waited twelve months before bringing a claim by a different and inappropriate procedure (the claim under the HRA 1998).

The judge noted that all other matters complained of were matters which “could and should have been dealt with by a challenge to the intervention via the statutory procedure and within the time-limit laid down by Parliament (and in the course of which disclosure would have been provided of the documents Mr Gadd has since been given or asked for)”. As such, his claim was “a collateral challenge to the intervention process by other means” and an attempt “to circumvent the statutory limitation on the right of challenge”. It was not open to the applicant to do this and, in the circumstances, his attempt to do so was an abuse of the process.

In conclusion, the judge noted that the applicant had been well aware of the eight-day time-limit, and there was “no evidence at all” that he had lacked sufficient resources to challenge the intervention when all that would have been required in the first instance was the court fee to issue a claim. Had he been genuinely unable to pay the fee it would have been open to him to apply to the SRA’s nominated agent for the release of some of CGL’s frozen practice money to use for that purpose.

With regard to the application to amend the grounds of appeal, the judge found that the claim for breach of statutory duty was misconceived; the common law principles of natural justice did not apply to the intervention process and, in any case, any procedural unfairness in the process leading to the intervention could have been raised in a statutory challenge to the intervention; the newly advanced claim for breaches of his human rights was only notified to the SRA in April 2012, and the limitation period for bringing such a claim had been one year from the date of the alleged breach; a “ breach of the rule of law” was not a pleading known to English law, but insofar as he was claiming that The Law Society acted ultra vires, such a challenge could have been made under the statutory procedure; and finally, the claim for misfeasance in public office was not maintainable in the circumstances.

Having found that the applicant’s claim had no real prospect of success, the judge refused the application for permission to amend the particulars of claim and ordered summary judgment to be entered in favour of the SRA.

On 10 May 2012 the applicant applied for permission to appeal the judge’s order on the ground that it was arguable that at least in exceptional cases a challenge to an intervention could be brought outside the eight-day time-limit, and the present case was exceptional on account of his impecuniosity and the fact that he had not been provided with reasons for the intervention until 21 December 2009. Permission was refused on the papers. The application was then renewed orally before the Court of Appeal on 6 June 2013 but permission to appeal was again refused.

In refusing permission to appeal, the Court of Appeal found that even if it were to assume that the eight-day time limit could be read down to allow for out-of-time applications in exceptional cases, this was not an exceptional case. First, impecuniosity was not a justifiable basis for not having brought a statutory challenge in time. The proceedings in the present case were not especially complex and the applicant was a solicitor who should have been well able to deal with the allegations against him. It was therefore not arguably necessary that he should have been provided with legal assistance. Secondly, although it was “difficult to understand” why the Report and the case-note had not been disclosed to the applicant prior to the expiry of the eight-day time limit, and there was some merit in the contention that it may have been difficult for him to have pursued proceedings without the Report, on the facts of the case the court did not consider this to be a ground for reading down the eight-day time limit. In particular, it noted that the basis of the applicant’s complaint was essentially that he had acted in good faith and co-operated with the authorities in relation to the wind-up of WBL, and those were matters which had been known to him when he received the original notice of intervention. Furthermore, even if some departure from the eight-day period was justified by reference to Convention principles, it had plainly been critical for the applicant to have acted very speedily thereafter. However, while he did take steps to get himself put back on to the register so that he could practice as a solicitor, he had taken no steps in relation to the intervention for twelve months. There was no reasonable prospect for saying that the time-limit should be read down so as to allow a challenge so long after the expiry of that period.

The Law Society is the governing body of the solicitors’ profession. It has a regulatory function and regulatory powers under the Solicitor’s Act 1974 (“the 1974 Act”), which it exercises through the SRA. Under section 35 of the 1974 Act, The Law Society is given the power to intervene in a solicitor’s practice in circumstances specified in Part I of Schedule 1 to the 1974 Act by exercising any or all of the powers set out in Part II of Schedule 1.

Paragraph 1(1) of Part I to Schedule 1 provides that The Law Society may exercise its right of intervention where, inter alia, it has reason to suspect dishonesty on the part of a solicitor in connection with that solicitor’s practice or in connection with any trust of which that solicitor is or formerly was a trustee; where it is satisfied that a solicitor has failed to comply with rules as to professional practice, conduct and discipline; and where it is satisfied that it is necessary to protect the interests of clients (or former or potential clients) of the solicitor or his firm.

Part II of Schedule 1 sets out the powers available to The Law Society upon intervention. Under paragraph 6, The Law Society has the power to take control of the practice’s accounts.

Finally, section 15 of the 1974 Act provides for the suspension of the solicitor’s practising certificate in the event of an intervention.

The 1974 Act allows an intervened-upon solicitor to apply to the High Court to request the withdrawal of an intervention. Under paragraph 6(4) of Schedule 1, a decision to take possession of the practice monies can be challenged within eight days of the service of the notice by application to the High Court for an order directing The Law Society to withdraw the notice, with not less than forty-eight hours’ notice to The Law Society. Paragraph 6(5) provides that upon an application under paragraph 6(4) the High Court may make such an order as it thinks fit.

Section 3 (1) of the HRA 1998 requires, so far as possible, that primary legislation and subordinate legislation be read and given effect in a way that is compatible with Convention rights.

Section 7(1) of the HRA 1998 further provides that a person who claims to be a victim of an unlawful act by a public authority may either bring proceedings against the authority under that Act in the appropriate court or tribunal, or rely on the Convention rights concerned in any legal proceedings. Subject to any rule imposing a stricter time limit in relation to the procedure in question, proceedings brought under the HRA 1998 should be brought within the period of one year beginning with the date on which the act complained of took place, or such longer period as the court or tribunal considers equitable having regard to all the circumstances.

Under section 16(3), a solicitor may, at any time before the expiry of his practising certificate, apply to The Law Society to have the suspension of the certificate terminated. Under section 16(4), upon receipt of an application The Law Society may terminate the suspension either unconditionally or subject to such conditions as it may think fit.

If The Law Society refuses the application or terminates the suspension subject to conditions, the solicitor may appeal against that decision.

In Holder v. Law Society [2003] 1 WLR 1059 ,[2003] EWCA Civ 39 the Court of Appeal accepted that an intervention under the 1974 Act gave rise to an interference with a solicitor’s right to peaceful enjoyment of his possessions under Article 1 of Protocol No. 1 to the Convention. However, having regard to issues of proportionality and the margin of appreciation it concluded that both the legislation itself and the approach taken by The Law Society had struck the fair balance required by Article 1 of Protocol No. 1.

Sir Christopher Staughton, who agreed with the leading judgment of Lord Justice Carnwath, observed:

“38. In the exercise of its powers of intervention the Law Society must of course comply with the Human Rights Convention. I can imagine circumstances where the Law Society might be found not to have complied with the Convention, or with the Human Rights Act 1998. After all, a solicitor whose practice is the object of an intervention loses his practising certificate, and in all probability his livelihood as well. The provisions for bringing an intervention to an end are very unlikely to restore the solicitor’s goodwill and his prosperity. If it comes about that the intervention was mistaken or unjustified, there is a risk that the solicitor will suffer a substantial loss without recourse to any remedy. In practice this may never happen; but it is a cause for concern. However, not in this case.”

In Sheikh v. Law Society [2007] 3 All ER 183, [2006] EWCA Civ 1577 Chadwick LJ, at the end of his leading judgment, made further obiter comments regarding the summary process for bringing a statutory challenge to an intervention and its compliance with claimants’ Convention rights of in light of the decision in Holder:

“110... In Holder v Law Society [2003] EWCA Civ 39, [2003] 1 WLR 1059, this Court considered – and rejected – an argument that the procedure for which Parliament had made provision was incompatible with the solicitor’s Convention rights. It rejected that argument (inter alia) on the basis that the court’s power to consider whether a fair balance has been struck between the demands of the general interest of the community and the protection of the individual’s fundamental rights met the requirements of Article 1 of the First Protocol. But it is clear that, unless the matter can be determined by the court within a short time of the intervention, the solicitor is likely to be denied an effective remedy. That is because the consequences of intervention – if the intervention continues for more than a short time – are likely to be irreversible. The solicitor’s clients will have to take their affairs elsewhere; the staff will have found other employment; and the practice will be destroyed in any event.

There is an obvious tension between the need to have an application to the court determined speedily and the need for the court to give full and fair consideration to the task which it has been set under the 1974 Act and, now, the Human Rights Act 1998. This case illustrates the need for the Society to give thought as to how that tension can be resolved...

112...The Society should, I think, give thought to the need for Panel resolutions to identify, with much more specificity than in this case, the reasons which (in the Panel’s view) make intervention necessary. If those reasons are not identified at an early stage, there is a danger that the solicitor will be denied the effective protection which Parliament plainly intended a summary process to provide.

There will, of course, be many cases in which the solicitor who has suffered intervention will be in no doubt as to the Society’s concerns. And, as I have said, there will be cases where the solicitor wishes to challenge the validity of the resolution on public law grounds. But, in cases where, although the solicitor knows what material was before the Panel, there is genuine doubt as to the matters which the Society regards as sufficiently serious to justify intervention, it seems to me that the court should be ready to assist – on an early application for directions following the issue of an application under the schedule 1 procedure – by requiring the Society to state the grounds upon which (on the material then known to it) the application will be resisted. Such a statement would enable the solicitor to address the Society’s concerns in a focused response. And, in the light of that response, the Society can explain to the court why it takes the view (if it does) that the concerns have not been met.

I appreciate that the process suggested in the previous paragraph may require the court to adopt a more pro-active role on applications under schedule 1 to the 1974 Act than hitherto; and that the need for an early determination of such applications will place demands on the court’s resources which it may be difficult to meet. But, as it seems to me, the court will be ready to meet those demands in order to ensure that the solicitor does obtain the effective protection which the Convention requires and which the 1974 Act was plainly intended to provide.”


George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

The applicant, Ms Barbara Wilczyńska, is a Polish national, who was born in 1963 and lives in Cracow.

The applicant is a co-owner of four plots of land located in Nowy Sącz.

On 18 May 2010 the Nowy Sącz Municipal Council adopted a new local development plan. The plan stipulated that a public road was to be constructed on the applicant’s property.

On 25 March 2011 the applicant formally requested the Municipal Council to alter the local development plan and to adopt a different location for the future road. The Municipal Council refused this request in a resolution adopted on 28 April 2011.

On 18 May 2011 the applicant filed a complaint with the Cracow Regional Administrative Court against the resolution of 18 May 2010. She alleged, inter alia, that the local development plan had unlawfully designated part of her property for a future road. She argued that such a designation resulted in restrictions on developing her property and the reduction in its value. This amounted to a breach of her property rights.

The Cracow Regional Administrative Court on 18 November 2011 dismissed the applicant’s complaint. It found that the local development plan constituted an interference with the applicant’s property rights which, however, was justified by the public-interest considerations. The plan did not affect the core of the applicant’s property rights since she retained the possibility to use and to dispose of the property. With regard to the alleged reduction in the value of the property, the court noted that the applicant could have pursued her compensation claim under section 36 of the 2003 Act.

The applicant filed a cassation appeal. She argued, inter alia, that the Regional Administrative Court had erroneously applied the provisions of the 2003 Act. In this respect she submitted that the local development plan had deprived her of the possibility to develop her property and resulted in the reduction of its value. The applicant further alleged that the municipality had not adopted an alternative, less onerous, proposal for the location of the road.

On 1 June 2012 the Supreme Administrative Court dismissed her cassation appeal. It concurred with the lower court that the location of a road retained by the municipality had been the most favourable to the applicant’s interests. The Supreme Administrative Court found that the interference with the applicant’s property rights had not been excessive since only part of her property had been designated for a road while the remaining part could be developed.

The Supreme Administrative Court’s judgment was served on the applicant on 24 August 2012.

From 1 January 1985 to 31 December 1994 questions of land development were governed by the Law of 12 July 1984 on Local Planning. Under this law owners of properties to be expropriated in the future were not entitled to any form of compensation for damage resulting from restrictions on the use of their property or the reduction in its value originating in expropriations to be carried out at an undetermined future date.

On 7 July 1994 a new Law on Local Planning was enacted (“the 1994 Act”). It entered into force on 1 January 1995.

Section 36 of the 1994 Act created for local authorities a number of obligations towards owners whose properties were designated for expropriation at an undetermined future date under land development plans adopted by the competent municipal authorities. The municipalities were obliged to buy such property, replace it with other land within six months of an owner’s request, or provide compensation for the damage caused by the designation.

However, pursuant to section 68 § 1 of the 1994 Act, these obligations and the corresponding claims of the owners applied only to plans adopted after the 1994 Act had entered into force, i.e. to plans adopted by local authorities after 1 January 1995.

Pursuant to the 1994 Act, plans adopted before its entry into force were to expire on 31 December 1999. In 1999 an amendment to the 1994 Act was adopted under which the validity of such plans was extended for a further two years until 31 December 2001. Again, on 21 December 2001, Parliament passed a law amending the 1994 Act which extended until the end of 2002 the validity of the land development plans adopted before 1 January 1995.

On 27 March 2003 a new Law on Local Planning was enacted (“the 2003 Act”). It entered into force on 11 July 2003 and repealed the 1994 Act. Under section 87 of the 2003 Act, all local plans adopted before 1 January 1995 remained valid, but not beyond 31 December 2003.

Compensation entitlements for owners, provided for by the 1994 Act, were in essence maintained by the 2003 Act. Pursuant to section 36 of the latter Act, when, following the adoption of a new local land development plan, the use of property in the manner provided for by a previous plan had become impossible or had been restricted, it was open to the owner to claim compensation from the municipality for actual damage sustained, or to request the municipality to buy the plot or its part. These claims may be also satisfied by the provision of an alternative property to the owner by the municipality. Any litigation which might arise in this respect between local authorities and owners could be pursued before the civil courts.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1957 and lives in St Petersburg.

She had a dispute with private individuals over a contract of sale for a flat, concluded in 1998, in which the applicant was the purchaser. According to the contract, she was to pay the equivalent of 26,500 US dollars (USD) in two instalments: half of the price on signing the contract, and the rest before 2 January 1999. The sellers were to vacate the flat before the same date. The applicant paid a sum equal to USD 13,250 on signing the contract and a further sum equal to USD 6,155 in 2001, but never paid the remaining sum. The sellers were evicted from the flat in 2004. The applicant claimed interest on the amounts paid by her for the period up to the time at which she had taken possession of the flat.

At a public hearing on 17 March 2004, in the presence of the applicant’s representative and the defendants, the Vasileostrovskiy District Court of St Petersburg partially found for the applicant, awarding her interest on the amount of USD 13,250 at an annual rate of 12% for the period from 2 January 1999 until the day on which she had taken possession of the flat, and dismissed the remainder of her claims. It read out the operative part of its judgment.

At a public hearing on 21 December 2004 the St Petersburg City Court examined the case on appeal in the presence of the applicant’s representative and the defendants. It quashed the part of the judgment in which the District Court had found for the applicant, and dismissed the applicant’s claims in view of her own failure to pay the price of the flat in full. It upheld the remainder of the judgment. The applicant’s claims were thus dismissed in their entirety.

At the close of the hearing the City Court read out the operative part of its judgment.

On 17 January 2005 the applicant’s representative received a copy of the City Court’s reasoned judgment.

The applicant was born in 1957 and lives in Ulyanovsk.

A private individual brought proceedings against the applicant seeking recovery of a debt in the amount of 1,116,619 Russian roubles (RUB).

At a public hearing on 13 October 2008 the Leninskiy District Court of Ulyanovsk examined the case in the presence of the claimant and the applicant’s representative. It ordered that the applicant pay the amount of the debt in full, as well as interest in the amount of RUB 10,000 and the court fee in the amount of RUB 2,861.19.

At the close of the hearing the District Court read out the operative part of its judgment.

On 16 October 2008 a copy of the District Court’s reasoned judgment was sent to the applicant by post.

At an open hearing on 25 November 2008 the Ulyanovsk Regional Court examined the case on appeal in the presence of the parties’ representatives. It dismissed the applicant’s appeal and upheld the judgment. At the close of the hearing the Regional Court read out the operative part of its judgment.

On 9 December 2008 the applicant’s representative received a copy of the Regional Court’s reasoned judgment.

The applicant was born in 1958 and lives in Tyumen.

The Tavda Town Administration brought proceedings against the applicant for recovery of “unjust enrichment” in the amount of RUB 175,276.40 resulting from the use of a plot of urban land for a period of two years and interest in the amount of RUB 17,704.57.

At a public hearing on 26 June 2009 the Tavda Town Court of the Sverdlovsk Region examined the case in the presence of the claimant’s representative and the applicant. It found for the claimant and ordered that the applicant repay the sum gained through unjust enrichment and interest as claimed, as well as the court fee in the amount of RUB 3,529.80.

At the close of the hearing the Town Court read out the operative part of its judgment.

On 2 July 2009 the applicant received the Town Court’s reasoned judgment.

The applicant appealed against the judgment.

On 18 August 2009 the Sverdlovsk Regional Court dismissed the applicant’s appeal and upheld the Town Court’s judgment. It rejected the applicant’s argument that the Town Court’s judgment had not been pronounced publicly as required by Article 6 § 1 of the Convention, stating that the Town Court had read out the operative part of its judgment at the hearing and prepared the reasoned judgment within five days thereafter in compliance with domestic law.

The applicant was born in 1946 and lives in Moscow.

The applicant brought proceedings against the Moscow department of the Federal Service for State Statistics, challenging its refusal to employ her for the campaign of the population census on the ground of her disability and claiming damages in the amount of RUB 356,145. The applicant argued, in particular, that despite her disability she was perfectly fit for the work and that she had successfully performed that type of work in the past.

At a public hearing on 30 October 2009 the Basmanniy District Court of Moscow examined the case in the presence of the applicant and the defendant’s representative. It dismissed her claims in full, having found, inter alia, that the refusal to employ her had been lawful in view of a medicosocial expert report confirming her total incapacity for any kind of work. The District Court noted that it had been open to the applicant to challenge the conclusion of the medico-social expert report, but that she had chosen not to do so. At the close of the hearing the court read out the operative part of its judgment.

On 17 November 2009 the applicant received a copy of the District Court’s reasoned judgment.

On 28 January 2010 the Moscow City Court dismissed the applicant’s appeal and upheld the District Court’s judgment. The City Court read out the operative part of its judgment at the close of its public hearing in the presence of the parties’ representatives. The applicant’s representative received a copy of its reasoned judgment in March 2010.


András Sajó;Iulia Motoc;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant, Mr Gregor Štrlekar, is a Slovenian national who was born in 1986 and lives in Ljubljana. He is represented before the Court by Mr M. Verce, a lawyer practising in Ljubljana.

The Slovenian Government (“the Government”) are represented by their Agent, Mrs J. Morela, State Attorney.

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

The applicant has suffered from a psychotic disorder since 2008. He has mainly received outpatient psychiatric treatment; however, in 2010, he spent a week in a psychiatric hospital because of a delusional disorder and suicidal thoughts.

On 9 August 2013 the applicant was arrested by the police on suspicion of aggravated theft. The next day he was brought before the investigating judge of the Ljubljana District Court who opened a judicial investigation against him and ordered his detention.

From 10 August until 21 October 2013 the applicant was detained in the remand section of Ljubljana Prison. During this time, he was hospitalised in Ljubljana Psychiatric Hospital from 15 until 20 August 2013.

On 30 August 2013 the applicant’s court-appointed counsel wrote a letter to the remand section of Ljubljana Prison, informing the authorities that the applicant had written a number of letters to her in which he mentioned having had suicidal thoughts. Accordingly, the counsel asked the prison authorities to provide her with a copy of the applicant’s medical documents and to inform her of his mental condition.

On 16 September 2013 the investigating judge of the Ljubljana District Court appointed an expert in psychiatry to give his opinion on whether the applicant had been capable of understanding the nature and effect of his actions at the time of the events in issue and whether he was capable of participating in the proceedings.

At the expert’s recommendation, the court ordered, on 21 October 2013, that the applicant be transferred to the forensic psychiatric unit of Maribor University Medical Centre (hereinafter “the Psychiatric Unit”) for the purpose of further observation and diagnosis. On his admission to the Psychiatric Unit, on 22 October 2013, he was placed in the most secure area, a three-bed room which could be monitored through a glass window. He had access to a large hallway shared by twelve patients which led to, inter alia, bathrooms, a living room, a doctor’s office and a smoking room. On his first day in the Psychiatric Unit he was assessed by Dr. M.P. On 25 and 29 October 2013 he was assessed by Dr. T.C.S. and Dr. A.F.C. respectively. The doctors noted that the applicant had reported occasional hallucinations and had mentioned a previous suicide attempt, but they considered that he was not acutely psychotic and did not at that time have suicidal tendencies. On 30 October 2013 Dr. A.F.C. noted that the applicant had, according to the Psychiatric Unit’s guards, been testing the fence and windows in the yard. Citing attempts he had previously made to abscond, the doctor noted that the applicant would no longer be allowed to access the yard.

On 3 November 2013, at around 9 p.m. the applicant jumped through the window in the smoking room and landed on the concrete staircase leading to the basement. On 3 November 2013, following the incident, a report was prepared by the special security officer, Mrs B.V.V. Another report was prepared by four staff members on 4 November 2013. The reports were based on the observations of the staff, an inspection of the premises and interviews with patients. The reports found that the applicant, with the help of some of the patients, had displaced the bars on the window by loosening the screws. The applicant had then used a sheet to lower himself from the second to the first floor. One of the patients had then untied the sheet from the second-floor window so that the applicant was able to tie it to the first-floor window in order to climb down from the first floor. During the latter attempt he had landed on the staircase, which had not been visible from the window and could therefore not have been anticipated by the applicant. According to the above-mentioned reports, as well as the medical report drawn up by Dr. A.F.C., following the jump the applicant had been found lying on the concrete floor under the window, unable to move, and complaining that he was in pain. Two medical officers had come to his assistance and had shortly thereafter been joined by Dr. A.F.C. and other health professionals from the Psychiatric Unit who had administered first aid to him and called for an ambulance. As the paramedics had been positioning the applicant on the stretcher and cutting through his pajamas, they had found that he had been wearing civilian clothes underneath. The applicant, accompanied by a security officer, had been taken to hospital. Furthermore, upon an inspection of the smoking room, it had been found that the bar covering the window had shifted (one of the screws holding it in place having been removed) and a sheet was hanging from the window (which is clearly visible in the photos attached to the reports and submitted to the Court). According to the reports, a patient, Mr D.T., had told the staff that the applicant had earlier asked him for a hex key and that another patient, Mr. Z.H., had helped the applicant with his escape; Mr Z.H. denied this. The special security officer who drew up the report of 3 November 2013 also noted in that report that immediately after the incident she had seen a car with four young men waiting next to the Psychiatric Unit building. According to her report, the men had driven off after being approached by her.

The applicant denied that he had attempted to escape and alleged that the incident of 3 November 2013 was in reality a suicide attempt. In a letter of 11 March 2014, which he sent to his lawyer for the purposes of the legal proceedings, he explained that he had put on pajamas over his sweatshirt and sweatpants because he had been feeling cold. In that letter he further denied that there had been any sheets hanging from the window and accused the police officers and the medical staff of the Psychiatric Unit of lying in order to avoid their responsibility for the incident. He also alleged that he had been maltreated, strapped to the bed, and forcibly medicated and that because of this he had attempted to kill himself.

As a result of the above-mentioned fall, the applicant sustained a number of injuries, including a fracture of a lumbar vertebra and fractures of both heel bones (calcanei), and suffered temporary paralysis. His lumbar vertebra was operated on immediately after the fall. On 5 November 2013 he was transferred from the intensive care unit to the traumatology unit, where he stayed until 23 December 2013.

In the meantime, on 18 December 2013, the applicant lodged an application (no. 256/14) with the Court complaining about the overcrowding, inadequate ventilation and limited out-of-cell time allowed to inmates in Ljubljana Prison during the period from 10 August 2013 to 21 October 2013. On 28 January 2015 he further complained to the Court about inadequate conditions in the Psychiatric Unit during the period from 22 October 2012 until 16 January 2014.

Meanwhile, on 23 December 2013 the applicant was examined by an expert psychiatrist, who judged that he was able to participate in the trial. On the same day he was again detained in the Psychiatric Unit, from where he was released on 16 January 2014. The medical discharge letter noted that the applicant was not psychotic and was not at risk of suicide.

According to the Government’s submissions, Mrs B.S.H., the mother of a detainee who had spent one day in the Psychiatric Unit, complained to the police in February 2014 in general terms about the “torture and overdosing” of the patients by the Psychiatric Unit’s staff. Mrs B.S.H. also mentioned that one of the patients, identified as the applicant, had – according to her son – jumped through a window after undergoing two days of torture. On 9 March 2015 the Maribor district prosecutor’s office issued a decision dismissing the complaint, a copy of which was sent to the applicant. The prosecutor’s office noted that on the basis of her allegations the Medical Chamber of Slovenia had reviewed the medical files of the relevant patients, including the applicant, on 24 June 2004. It reiterated the findings of the above-mentioned reports of 3 and 4 November 2013 (see paragraph 10 above), as summarised by the Medical Chamber, noting that they showed that the applicant had undoubtedly attempted to escape and not to commit suicide.

From 17 February 2014 until 4 April 2014 the applicant underwent rehabilitation in the Soča University Rehabilitation Institute. When discharged he was able to walk with aid of crutches.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

The applicant was born in 1970 and lives in Brežice.

The applicant served his prison sentence in the closed and semi-open sections of Ljubljana prison in the period between 29 February 2008 and 29 December 2010. From 29 February 2008 to 11 July 2008, from 20 October 2008 to 3 February 2009 and from 14 July 2009 to 29 December 2010 he was held in the closed section. From 11 July 2008 to 20 October 2008 and from 3 February 2009 to 14 July 2009 he was held in the semiopen section.

From 11 July 2008 to 20 October 2008 and from 3 February 2009 to 14 July 2009 he was held in cells 145 and 147 (third floor), which measured 18.8 square metres (including a separate 1.72 square metre sanitary facility) and contained 5 sleeping places. From 14 July 2009 to 14 June 2010 he was held in cell 7 (third floor), which measured 16.8 square metres (including a separate 1.72 square metre sanitary facility) and contained 5 sleeping places. From 14 June 2010 to 29 December 2010 he was held in cell 1 (third floor), which measured 18.4 square metres (including a separate 1.72 square metre sanitary facility) and contained 5 sleeping places.

All the cells in the closed and semi-open sections contained, apart from the furniture, five sleeping places (two bunk beds and one single bed). According to the applicant, five prisoners were being held in each of the cells during his detention. The Government, however, submitted that the number varied between four and five. Each cell had one 107 x 110 cm double casement window, which the prisoners could freely open or close.

As regards the general characteristics of the cells in the closed and semi-open sections, material conditions inside the cells therein, sanitary conditions and health care, see the judgment in Štrucl and Others v. Slovenia, nos. 5903/10, 6003/10 and 6544/10, §§ 21 to 32, 20 October 2011.

As to the out-of-cell time in the closed section, the Court found in the aforementioned judgment that sentenced prisoners in the closed section of the prison were locked up in their cells and were only able to leave them if they applied for certain activities, most of which were to take place in the recreation room. There was, however, only one 50square-metre recreation room per floor, which was to be used by ten inmates at most (Štrucl and Others § 86).

As to the out-of-cell time in the semi-open section, the Government submitted that the cell doors in the semi-open section of the prison were unlocked, except from 9.45 p.m. (on Fridays, Saturdays and before holidays from midnight) until 6.00 a.m. (on Saturdays, Sundays and during holidays until 8.30 a.m.). During this time prisoners could move freely in the corridor (35.7 square metres), living quarters of co-prisoners or in the indoor or outdoor exercise areas, in accordance with prison rules. The Government contended that this regime had been in place for several years.

During his imprisonment the applicant had forty-nine consultations with a general practitioner and visited a dentist on seven occasions. He was treated by a psychiatrist on eight occasions and by a psychologist on five occasions.

As regards the cell temperature, the data provided by the Government showed that the average temperature in the cells in the late afternoon (5- 5.30 p.m.) in the second half of July and August 2009 had been approximately 28oC, exceeding 30oC on seven days.