LAM and OTHERS v. THE UNITED KINGDOM
Inadmissible
Matti Pellonpää;Nicolas Bratza
The first applicant is a British national, born in 1949 and living in Southport, England. The second applicant, also a British national, is his wife, born in 1950. The third and fourth applicants are their children, born respectively in 1974 and 1976. The applicants were represented in the initial stages of the application by the first applicant and then by Dr K.S. Badsha, a legal consultant with the Environmental Law Centre, Southport, England. The facts of the case may be summarised as follows. The first applicant was the owner of a Chinese restaurant situated in a designated conservation area in the centre of Paignton. The applicant and his family lived on the premises. In 1989 the applicants had to abandon their restaurant and their home above it on account of the emission of toxic cellulose paint spray fumes from a warehouse (unit 2) used by a company (“Namesakes”) owned by a Mr Brennan. The company was engaged in the manufacture of wooden toys. In addition to the financial loss they suffered as a result of the closure of their business, the applicants’ health (as well as that of others living in the locality) was also badly affected by the toxic emissions. A complaint was first made to Torbay Borough Council (“the Council”) in 1989. Subsequent complaints followed. Although the Council served a prohibition notice and an abatement notice on the company between October 1990 and December 1991, it would appear that no steps were taken to enforce these notices. In December 1992 the company relocated its activities and the applicants returned to their premises in 1993. The applicants insist that the paint spraying operation was illegal and that the Council has tried to conceal the illegality by purporting there to be planning permission for the activity operating out of unit 2. They maintain, inter alia, The applicants commenced litigation against Mr Brennan in January 1991. The applicants subsequently sued the Council, claiming damages for personal injury and damage to property. They contended that the Council acted beyond its discretion, ultra vires and abused its power by purporting there to be planning permission when, according to the Council’s own records, no planning permission had ever been granted to the building (unit 2) where the company’s operation took place. The actions against the company and the Council were consolidated. On 24 January 1996 Mr Justice Collins, on the application of the Council, ordered that the applicants’ writ against the Council be struck out as showing no cause of action either under statute or at common law. Mr Justice Collins considered that the applicants’ primary remedy was the private law remedy for damages and/or an injunction against the company to stop the nuisance. Mr Justice Collins also referred to the range of remedies which allowed an individual to protect himself in the event of a local authority not taking action to bring an end to a nuisance, including a private law claim against the person creating the nuisance and the laying of a complaint before a Magistrates’ Court. According to the applicants, Mr Justice Collins, without justification, diverted the basis of their claim by proceeding on the assumption that planning permission had been given in 1988 to the company to use unit 2 for its paint spraying activity. On 30 July 1997 the Court of Appeal, dismissed the applicants’ appeal against Mr Justice Collins’ ruling. According to the applicants, the Court of Appeal accepted the false statement of the Council that planning permission was in place without requiring it to substantiate this or to have regard to their evidence disproving the Council’s assertion. On 13 January 1998 the House of Lords refused the applicants leave to appeal. The first applicant subsequently complained to the Council that a pottery business which had taken over occupancy of one of the units (unit 1) was emitting smells and noises and that it did not benefit from planning permission. He contended that planning permission had never been granted in respect of either unit 1 or unit 2. At the meeting held on 10 November 1997 the Council’s planning committee (“the committee”) decided that there had been no breach of planning conditions and that no enforcement action had to be taken against the owner of the pottery business. According to the first applicant, the committee did not answer his challenge to the very existence of planning permission for the use of units 1 and 2. The first applicant insists that the committee was deliberately misinformed by its officers about the scope of the original planning application made by Mr Brennan’s company and the true state of the planning record. The first applicant was present at part of the meeting and made representations to the committee. According to the first applicant, he only received official notification of the committee’s decision on 16 January 1998 through a Council official who had agreed to reconsider the local authority’s decision. The Council official confirmed in the letter that the premises were being used legitimately and added that any smells or fumes emanating from the premises were intermittent and did not constitute a statutory nuisance. On 6 February 1998, fifteen days after being notified of the committee’s decision, the first applicant sought leave to apply for judicial review. He maintained, inter alia, that the Council had failed to take enforcement proceedings against the owner of the pottery business who was operating it without the necessary planning permission. The first applicant stresses that, in the ensuing judicial review proceedings, the Council argued that planning permission had been granted to unit 1. However, this was in contradiction to the stance the Council had taken in the earlier civil proceedings in which it contended that unit 2 benefited from planning permission. The first applicant reiterates that the true position is that neither unit benefited from planning permission since the records showed that planning permission only covered a storage building at the rear of their home and restaurant. The first applicant draws attention to his view that Council officials fraudulently deleted the existence of the storage on the planning documentation which was submitted in the judicial review proceedings. On 25 June 1998 Mr Justice Moses refused the first applicant’s request for an adjournment to enable him to put forward evidence as to why he had delayed the initiation of the leave proceedings in respect of the decision of 10 November 1997. The judge considered that the applicant had ample time to produce such evidence between the date when the Council notified him that it would oppose the application on grounds of delay and the start of the proceedings. The judge dismissed the first applicant’s application for leave to apply for judicial review. On appeal, Lord Justice Kennedy conceded that the scope of Mr Brennan’s application for planning permission and the extent of the permission granted was not entirely clear. However, with reference to Order 53, rule 4(1) of the Rules of the Supreme Court and by analogy with time-limits laid down in planning legislation, Lord Justice Kennedy found himself: “... driven to the conclusion that here the application was not made promptly, as required by Order 53, rule 4 of the Rules of the Supreme Court. There seems to be no reason why the applicant should have waited to receive the letter of 16th January 1998 before seeking to challenge the decision of 10th November. I can find no good reason to extend the period laid down by the Order.” Lord Justice Kennedy further observed that, even if ten years ago the use made of the premises was unauthorised, it was now too late for the local authority to institute enforcement action. Lords Justices Aldous and Potter agreed with Lord Justice Kennedy’s reasoning. In a judgment dated 28 October 1998 the Court of Appeal dismissed the applicant’s renewed application. The first applicant points out that Lord Justice Potter had sat in the Court of Appeal in the appeal against the ruling of Mr Justice Collins and failed to draw the attention of his colleagues hearing the appeal on the applicant’s judicial review application to the fact that the Council had earlier argued that planning only related to unit 2, whereas in the judicial proceedings it was now claiming that it only covered unit 1. Meanwhile, the applicants’ civil claim in the High Court against Mr Brennan had been stayed pending the outcome of the proceedings against the Council. In February 2002 Mr Brennan applied for an order that directions be given for the future conduct of the applicants’ claim. On 27 February 2002 Deputy Master Chisholm ordered that the stay be lifted and that the case be transferred from the Royal Courts of Justice in London to Exeter District Registry. Deputy Master Chisholm noted in this connection that the proceedings against the Council had come to an end and, moreover, that the European Court of Human Rights had on 5 July 2001 declared inadmissible an application lodged by the applicants (no. 41671/98). The applicants appealed against the Order. The applicants’ appeal was heard by Mr Justice Jackson on 16 July 2002. The applicants argued that it was premature to lift the stay in the proceedings since they had lodged a further application (no. 75341/01) with the Court in Strasbourg contesting the Court’s inadmissibility decision of 5 July 2001. Mr Justice Jackson dismissed the applicants’ appeal on this point. Having examined the Court’s inadmissibility decision, he considered that the applicants’ fresh application had no prospects of success. As to the applicants’ objection to the transfer of the civil action from London to Exeter, the judge concluded that Deputy Master Chisholm has reached his decision in the proper exercise of his discretion on case management issues. COMPLAINTS The applicants maintain that the Court’s inadmissibility decision of 5 July 2001 (application no. 41671/98) is based on an incorrect statement of the facts and that the legal reasoning is seriously flawed. They contend that the Court in that decision committed the same error as the domestic courts by assuming that planning permission had been granted to Mr Brennan by the Council in 1988 and at no stage addressed themselves to the true scope of the permission actually given. The applicants submit that the Court should establish what was actually granted by the Council under planning application no. 88. 1887 and to reach its decision with reference to the documentation that they have supplied. They maintain that the documentation clearly shows that neither unit 1 nor unit 2 was covered by planning permission and that the only premises addressed in planning application no. 88.1887 was a storage building. The applicants assert that the facts of their case disclose breaches of Articles 2, 8 and 13 of the Convention and Article 1 of Protocol No. 1 thereto insofar as an illegal industrial activity has been deliberately allowed to operate to the detriment of their health and property and the Council has knowingly sought to conceal the true nature of the planning record and to purport throughout that planning permission had been given. Furthermore, the facts relied on show that they had no effective remedy to obtain a determination of their complaints against the Council and its officers who acted unlawfully and abused their powers by purporting there to be planning permission for the illegal activity. They rely on Articles 6, 13 and 17 of the Convention. The applicants submit that they have been discriminated against on account of, among other things, their Chinese origin and have been treated differently from those responsible for the emission of the toxic fumes behind their home and restaurant. They rely on Article 14 in conjunction with Articles 2 and 8 of the Convention and Article 1 of Protocol No. 1. With reference to the pending civil action against Mr Brennan, the applicants stress that the outcome of that action is closely linked to the question whether Mr Brennan can rely on the grant by the Council of planning permission to carry on his paint spraying operation. In their submission, if the domestic courts were to accept Mr Brennan’s defence, despite clear evidence to the effect that Council officials purported there to be planning permission for his activity and unlawfully misled the domestic courts in the litigation against the Council by manipulating and concealing the true nature of the planning record, there would a breach of their rights under Articles 6, 8, 13 and 17 of the Convention. They maintain that the Council was biased n favour of Mr Brennan. The applicants contend, among other things, that Mr Justice Jackson in his judgment of 16 July 2002 did not act independently or impartially since he did not query the documents allegedly showing that the Council had given Mr Brennan planning permission, and this despite evidence confirming that Council officials had acknowledged that this was not the case. They invoke Articles 6 and 13 of the Convention. The applicants further contend under Article 6 that the judge was wrong to rely on certain statements in the Court’s inadmissibility decision of 5 July 2001, misconstrued the essence of their claim against the Council and made impermissible use of domestic case law. The applicants insist that the facts relied on disclose a breach of their rights under Article 8 of the Convention since the domestic courts treated their claim as a claim based on damage caused by a legal activity, whereas the true basis of their claim was that they had suffered harm on account of an unlawful activity. The applicants further allege a violation of Article 14 of the Convention, including in conjunction with Article 6. They maintain that they have been discriminated against on account of their Chinese origin and that by denying them their rights to a fair hearing the Court of Appeal failed to treat them on an equal footing to other citizens. The applicants argue that the facts of the case give rise to a breach of Article 17 of the Convention. With reference to Article 1 of Protocol No. 1 the applicants state that the judge purported that the toxic emissions from which they suffered emanated from a legal industrial activity, whereas that activity was illegal and interfered with their property rights. The first applicant lodged the above application on 2 July 2001. In the proceedings before the Court, the applicant is represented by Dr K. S. Badsha, a legal consultant with the Environmental Law Centre, Southport, England. The facts of the case may be summarised as follows. On 13 January 1998 the Appeal Committee of the House of Lords refused the applicants’ petition for leave to appeal. The minutes of the proceedings recorded that the Council could apply for its costs and if the application was granted the amount would be certified if no agreement could be reached on it. The first applicant’s solicitor at the time received a notification dated 30 October 1998 to attend a taxation hearing regarding the costs incurred by the Council in respect of the applicants’ petition for leave to appeal to the House of the Lords against the decision of the Court of Appeal in the civil proceedings against the Council referred to in application no.75341/01. A taxation hearing was held on 19 January 1999 before the Judicial Taxing Officer of the House of Lords. By a decision of 22 April 1999, the Judicial Taxing Officer of the House of Lords allowed the Council’s bill of costs in full (approximately GBP 2,000). The first applicant protested about the decision, including through his MP, but without success. The first applicant maintained that the Council had not been invited to make submissions on the above-mentioned petition (and which was in effect ex parte), that his solicitor had informed him that he had never seen any such submissions, that the Council had never discussed with his solicitor that it would be making an application for costs and what the nature of those costs would be and that the Taxing Officer had abused his powers. The first applicant sought to challenge this decision by way of judicial review. By letter dated 13 February 2001 the first applicant was informed by the High Court’s Administrative Office that the High Court had no jurisdiction in the matter since its jurisdiction only extended to decisions of inferior courts and tribunals. COMPLAINTS The first applicant complains, inter alia, that the Taxing Officer abused his discretion, acted in breach of procedural rules, was biased against him and overlooked the fact that the local authority itself had not complied with the House of Lords own practice directions on the matter of costs. He submits that the Taxing Officer ordered him to pay the Council’s inflated costs in the absence of any authority to do so and further maintains that there was no justification for seeking the Council’s comments on his petition before it had been considered by the Appeal Committee of the House of Lords. The first applicant submits that he was denied a fair hearing in the proceedings before the Taxing Officer, had no effective remedy in respect of the decision reached by him and was the victim of an abuse of rights since the Taxing Officer awarded costs to the defendant Council to which it was not entitled. The first applicant relies on Articles 6, 13 and 17 of the Convention. The application was lodged on 28 November 2002. In the proceedings before the Court, the first applicant is represented by Dr K. S. Badsha, a legal consultant with the Environmental Law Centre, Southport, England. The first applicant joined the Federation of Small Businesses (“FSB”) in 1991. He paid his membership fee, and thereafter renewed his membership annually. His decision to become a member was influenced by the FSB’s undertaking in its promotional literature to pay legal and accountancy fees up to GBP 35,000 in dealing with an in-depth Inland Revenue investigation. The Inland Revenue carried out an in-depth investigation of the first applicant in 1994, after he had sought advice from the tax authorities about his tax situation. In 1996 the Inland Revenue cleared the first applicant of any suspicion of fraud. The first applicant sought to be indemnified for the accountants’/consultants’ costs he had incurred in defending himself during the investigation. According to the first applicant, the FSB’s insurer reversed its initial decision not to indemnify him and agreed to reimburse him the costs he had incurred, only to renege later on its promise. The first applicant declined the insurance company’s proposal to submit the full claim to arbitration. Dissatisfied with the outcome of his dealings with the insurer, on 11 July 2000 the first applicant sued the FSB for breach of contract, relying on the FSB’s unqualified undertaking to cover its members’ costs. On 6 October 2000 District Judge Meredith ordered that the first applicant’s claim be struck out as disclosing no cause of action against the FSB. The judge accepted FSB’s defence that the first applicant’s claim lay against the insurance company which underwrote the undertaking and that FSB’s obligation was limited to introducing him to an insurer. On appeal, His Honour Judge Overend, on 12 January 2001, ordered that the first applicant’s claim be reinstated, being satisfied, firstly, that there was no contractual relationship between the first applicant and the insurance company and, secondly, that the first applicant’s only avenue of redress was to sue the FSB with which he had concluded a contract. Further directions for trial of the case were to be given by a District Judge. On 18 April 2001 District Judge Meredith ordered that the question whether the FSB was liable to the first applicant and, if so, the scope of its liability, be determined as a preliminary issue. On 29 June 2001 His Honour Judge Rucker ordered that all matters relating to the case were to be tried in the current trial window. The first applicant sought leave to appeal against that order in the hope of having the issue of liability tried separately. On 25 September 2001 Mr Recorder Moxon-Browne proceeded to try the issue of the FSB’s liability to the first applicant. Following a hearing, the judge found on the evidence, and with reference to domestic case-law (the House of Lords’ decision in Swain v. the Law Society), that the FSB had only agreed to gave the first applicant the benefit of an insurance policy to guard against the expenses incurred as a result of an in-depth tax investigation. The first applicant’s claim to be indemnified therefore lay against the insurer, and not with the FSB. The judge however expressed the view that the FSB could have clarified better in its advertising what the scope of its obligation was in this area. The first applicant appealed. On 4 October 2002, the Court of Appeal dismissed the first applicant’s appeal following a hearing. Having reviewed the documents relied on by the applicant, Lord Justice Laws considered that the first applicant had not made out a case that he had concluded a contract with the FSB under which the FSB would meet without qualification all of the expenses incurred by the first applicant in the course of an in-depth Inland Revenue investigation. In his opinion, the words used by the FSB were not inconsistent with an intention to provide insurance services rather than an unqualified indemnity. Furthermore, the provision to the first applicant of insurance documentation at the time he joined the FSB indicated that his membership entailed his access to insurance services. Complaints The first applicant maintains that the domestic courts distorted the facts of the case, reached conclusions in the absence of evidence, erred on matters of law, diverted the basis of his claim, abused their powers and did not act independently and impartially. He refers, among other things, to the improper manner in which Mr Recorder Moxon-Browne and the Court of Appeal dealt with the issues before them and to the fact that the Recorder took it upon himself to decide who was the correct defendant to the proceedings, even though this issue had already been settled by Judge Overend. The first applicant relies on Article 6 of the Convention to condemn these and other breaches of his right to a fair hearing which he has identified. Under Article 13 of the Convention, the first applicant complains that the Court of Appeal reached its decision by adducing a document which did not exist, thereby abusing its power and acting without authority by assuming there was such a document. The first applicant further relies on Article 14 of the Convention. He maintains, among other things, that he was discriminated against in his access to justice on account of his status as a litigant in person. The first applicant finally maintains that the abuse of power on the part of the Court of Appeal amounts to a breach of Article 17 of the Convention.