CASE OF ROBINS v. THE UNITED KINGDOM
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Civil rights and obligations;Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage)
John Freeland
7. The applicants, Mr and Mrs Robins, born respectively in 1942 and 1943, are resident in Crediton, Devon and in London. 8. The background to the case is a dispute between neighbours over sewerage. Initially the applicants’ neighbours, Mr and Mrs T., instituted proceedings seeking damages for problems experienced with their sewerage, allegedly caused by work carried out by the applicants. Mr and Mrs T. won their case. On 26 February 1988 the applicants then instituted proceedings against Mr and Mrs T. in the Exeter County Court in Devon, alleging that the latter’s sewage was seeping onto their land. On 1 May 1991, Judge Clarke gave judgment against the applicants. Their appeal was subsequently dismissed by the Court of Appeal. 9. In England and Wales it is usual that the unsuccessful party to litigation pays the costs of the successful party (see paragraph 19 below). On 31 May 1991, Mr and Mrs T., who were not in receipt of legal aid, requested a hearing to determine costs issues. The applicants had been and were legally aided throughout the litigation to appeal stage. Although this did not affect the amount of costs Mr and Mrs T. would be entitled to receive, after having made an order for costs it would be necessary for the judge to assess the applicants’ means for the purposes of section 17 of the Legal Aid Act 1988 (“the 1988 Act” – see paragraph 20 below). 10. After hearings on 5 and 6 August 1991, the matter was adjourned until 19 September 1991, to be heard at Torquay County Court, also in Devon. As the question of costs could not be resolved because of factual disputes and conflict between the parties, on 24 September 1991 Judge Clarke made a direction that the inquiry should be adjourned and not restored until a number of points concerning the applicants’ entitlement to legal aid had been clarified. In particular, information was sought as to whether the applicants had advised the Legal Aid Board (“LAB”) of any change in their circumstances and whether revocation of their legal-aid certificate, if necessary, would have any retrospective effect. 11. On 25 November 1991, the court received a report from the LAB outlining events from the time the applicants first applied for legal aid. This report was sent to the parties on 14 January 1992, when they were informed that the matter could be re-listed for hearing. However, on 4 February 1992, the LAB informed the court that a fresh Department of Social Security (“DSS”) assessment of the applicants’ means was required in view of the fact that they had separated. The DSS later explained, in a letter filed with the court on 10 November 1992, that a delay of nine months had been caused because of a misapprehension in this respect; in fact, the applicants had not separated. 12. The restored hearing was held on 12–13 November 1992 before Judge Darwall-Smith, as Judge Clarke had fallen ill. Examining the criteria set out in section 17 (1) of the 1988 Act (see paragraph 20 below), the judge ordered that 4,599 pounds sterling (GBP), which had previously been retained by the LAB following an award of damages to the applicants resulting from a successful negligence action against a firm of solicitors, should be paid to Mr and Mrs T. forthwith and that the applicants should in addition pay them GBP 6,000 in instalments of GBP 100 per month. 13. The applicants sought legal aid to appeal against this decision. On 11 January 1993 they applied for an extension of time, since the time-limit for appealing the costs order had expired on 11 December 1992. Subsequently queries were raised by a lawyer in the Civil Appeals Office as to whether leave to appeal was required, and the matter was referred to the registrar. 14. In March 1993, September 1993 and March 1994 the applicants contacted the Court of Appeal asking why there was a delay in dealing with their application. 15. On 10 April 1994, the registrar directed that leave was not required to appeal against the costs order. With a view to avoiding the time and expense of holding two hearings, one before him for the extension of time and another before the full Court of Appeal, he referred the application to the full court to determine the question of the time extension and, if granted, immediately to hear the appeal. 16. The applicants were requested to lodge the relevant documents by 2 May 1994. Extensions of this time-limit were granted on 25 April, 24 May, 16 June, 6 July and again on 27 July 1994 at the request of the applicants, because they were experiencing difficulty in obtaining transcripts and judge’s notes of hearings from the first-instance courts. It later transpired that Judge Clarke’s notes had been either lost or did not exist. On 6 October 1994, the registrar granted the applicants’ request that transcripts of the judgment of Judge Darwall-Smith be produced at public expense. 17. Another extension of the time-limit for the submission of documents was granted, upon the applicants’ request, on 16 February 1995. On 6 March 1995 the documents were finally lodged with the Court of Appeal’s Office and on 29 March 1995 the application was listed for hearing. After the hearing on 19 June 1995, the Court of Appeal confirmed Judge Darwall-Smith’s judgment of 13 November 1992 and dismissed the appeal. 18. Legal aid is available to litigants in the English courts subject to various requirements as to means and the merits of the case in question. Financial assessments of a litigant’s disposable income and capital are carried out by specialist staff of the Benefits Agency’s Legal Aid Assessment Office. The resources of the litigant’s spouse are treated as belonging to the litigant unless they are living “separate and apart” (see the Civil Legal Aid (Assessment of Resources) Regulations 1989 (Statutory Instrument 1989 no. 338), Regulations 4 and 7). 19. In the English courts, the award of costs generally (in all cases, including those where one or more parties are legally aided) is a matter for the discretion of the court (see the Supreme Court Act 1981, section 51). However, rules of court lay down certain principles which are normally applied in the exercise of this discretion, including the principle that the unsuccessful party to litigation pays the costs of the successful party (see the Rules of the Supreme Court, Order 62, Rule 3, and the County Court Rules, Order 38, Rule 1 (3)). 20. This principle is not affected by the fact that an unsuccessful litigant is legally aided. However, after an order for costs has been made against such a person, the court which tried or heard the proceedings must determine how much of these costs it would be reasonable for the legally aided litigant to pay, in accordance with section 17 (1) of the Legal Aid Act 1988, which provides: “The liability of a legally assisted party under an order for costs made against him with respect to any proceedings shall not exceed the amount (if any) which is a reasonable one for him to pay having regard to all the circumstances, including the financial resources of all the parties and their conduct in connection with the dispute.”