CASE OF SCARTH v. THE UNITED KINGDOM
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
Lucius Caflisch
9. The facts of the case, as found by the Commission and not contested before the Court, are as follows: 10. On 26 September 1994, proceedings for recovery of a debt of 697 pounds sterling (GBP) were commenced by Bradley Grange Stud Limited against the applicant in the Scarborough County Court. 11. By reason of Order 19, rule 3 (1), of the County Court Rules 1981 the case was referred for hearing by way of arbitration under Order 19, rule 7, of the County Court Rules. 12. On 8 November 1994 a preliminary hearing took place. The plaintiff did not attend, and Mr Scarth requested that the claim be struck out. The District Judge (the arbitrator) refused to do so. 13. Mr Scarth made an application for the main hearing to be in public and for evidence to be given on oath. This application was heard on 3 January 1995 and refused. The reasons for the refusal were not recorded formally, but in a note of 21 July 1997 prepared in the context of the Convention proceedings, District Judge Elliott made the following comments: "At this stage I can only say that it is likely that I took the view that the [applicant's] reasons as set out in his application were not in my view good reasons for the private nature of arbitration proceedings to be dispensed with. Further the sum of the dispute and the nature of the dispute were basically no different from the usual "run of the mill" arbitration disputes heard in any county court. Lastly, at the time the arbitration hearing had been fixed, prior to the filing of the application [for the case to be heard in open court]. I cannot say with certainty the above are the reasons I gave. The earlier fixing of an arbitration hearing date would have carried little weight with me if I had considered the application had any particular merit. ..." 14. The arbitration hearing took place in private on 16 January 1995. On 31 January 1995 District Judge Elliott made his award in writing, finding in favour of the plaintiff. 15. Mr Scarth made an application for the arbitration award to be set aside on the ground that there had been "misconduct" or "errors of law" by the District Judge, pursuant to Order 19, rule 8 (1), of the County Court Rules 1981. 16. The hearing of the application to set aside took place before a Recorder in private. He refused the application on 9 May 1995 and made a costs order against Mr Scarth. These costs were subsequently assessed at GBP 1,032.76. 17. Mr Scarth then applied for leave to appeal to the Court of Appeal alleging a lack of public hearing, misconduct by the judge and an overall unfairness of the proceedings. Mr Scarth was heard in open court and leave was refused on 9 November 1995. Lord Justice Morritt noted that the "European Convention on Human Rights is not part of our law in the way the European Community law is, and the provisions of the county court rule to which I have referred entitled the District Judge to hold the hearing in private". He further found that the judge could not be said to have been guilty of any misconduct and rejected Mr Scarth’s allegations as to unfairness. In connection with a submission that the District Judge was wrong on one particular point of law, he continued: "That seems to me to be a matter largely of fact, because if these two cheques were handed over for value and either of them was countermanded and subsequently presented, then it would seem that there would be a cause of action on the cheque ...". 18. Order 19, rule 3 (1), of the County Court Rules ("the Rules"), as in force at the relevant time, states that any proceedings in which the sum claimed or amount involved does not exceed GBP 1,000 shall be referred for arbitration. 19. Order 19, rule 7 (1), (3) and (4), of the Rules provides as follows: "(1) Any proceedings referred to arbitration shall be dealt with in accordance with the following paragraphs of this rule unless the arbitrator otherwise orders. (3) The hearing shall be informal and the strict rules of evidence shall not apply; unless the arbitrator orders otherwise, the hearing shall be held in private and evidence shall not be taken on oath. (4) At the hearing the arbitrator may adopt any method of procedure which he may consider to be fair and which gives to each party an equal opportunity to have his case presented;..." 20. Order 19, rule 8 (1), of the Rules reads as follows: "Where proceedings are referred to arbitration, the award of the arbitrator shall be final and may only be set aside ... on the ground that there has been misconduct by the arbitrator or that the arbitrator made an error of law." 21. In monetary matters of less than GBP 5,000, and wherever the County Court judge makes his order in an appellate capacity, leave to appeal must be obtained before a County Court order may be appealed to the Court of Appeal (see RSC 1997, Order 59, rule 1/34, referring to the County Court Appeals Order 1991). 22. Under the Civil Procedure Rules, which came into force on 26 April 1999, hearings, including those in small claims cases, are to be held in public. There is a discretion for the court to hold a hearing in private where: (a) publicity would defeat the object of the hearing; (b) it involves matters relating to national security; (c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality; (d) a private hearing is necessary to protect the interests of any child or person suffering from mental incapacity; (e) it is a hearing of an application made without notice and it would be unjust to the respondent for there to be a public hearing; (f) it involves non-contentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or (g) the court considers a private hearing to be necessary in the interests of justice.