UPTON v. THE UNITED KINGDOM
Inadmissible
Josep Casadevall;Nicolas Bratza
The applicant, Mr Timothy Upton, is a British national who was born in 1949 and lives in Bradford. The respondent Government are represented by their agent, Mr John Grainger, of the Foreign and Commonwealth Office, London. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s grandfather made a will in 1930 (and a codicil in 1935) in which he left his residuary estate (after payment of certain annuities) on trust for his children in varying shares in the first place and, after they died, for their children. If a branch failed, the estate was to pass to the other branches. The grandfather died in 1937. The applicant’s grandfather had four children. The oldest was the applicant’s father, born in 1908. The second oldest, born in 1910, died in 1940 without issue. The third child, the only daughter, was born in 1915 and the youngest child was born in 1919. In 1942, the youngest son married Leslie Jean Bray. Two children were born. In 1946 Leslie Jean Upton (nee Bray) left her husband and went, with the two children, to live with his brother, the oldest son. The applicant was born to the couple in 1949. In 1953 the applicant’s mother died, and in 1955 the applicant was adopted by his father. In 1997, the applicant’s grandfather’s daughter died without issue. The applicant’s father died in 2000, providing in his will that all of his estate passed to his son, the applicant. He was entitled at his death to a three-fifths share of the income from his father’s estate. The applicant claimed, in the High Court, to be entitled to his father’s three-fifths share of the income. The executors considered that he was not entitled to any share because, as he was illegitimate, he could not inherit as a “child” of his father under the 1930 will and codicil. On 29 July 2004 in the Leeds District Registry of the High Court, Judge Behrens found that the applicant was not entitled to take any share under his grandfather’s will. He found that it was a well-established principle that a gift to a child or children was, apart from statute, to be construed as a gift to legitimate children unless it was possible to find a contrary intention in the will. Sections 1 and 19(1)(b) of the Family Law Act 1987, which improve the position of illegitimate children (including in the interpretation of wills), only apply to events after 4 April 1988, and so could not assist the applicant. Other statutes, which dealt with the effect of legitimation where a child’s parents married after he was born, did not assist the applicant as the applicant’s parents never married. The Adoption Act 1926, which was in force at the time of the applicant’s grandfather’s will and codicil (1930 and 1935) provided that adoption did not confer any right to or interest in property as a child of the adopter, unless a contrary intention appeared in any disposition such as a will. There was no contrary intention and so at the date of death adopted children could not benefit under the will. Again, later amendments to the law were of no help to the applicant because they only applied prospectively. Finally, Judge Behrens considered the points raised by the applicant in connection with the Convention. He noted that Article 1 of Protocol No. 1 applied only to existing possessions, but that the applicant had never been entitled to any of his grandfather’s estate. He also noted that the litigation was between private individuals, where the cases of Marckx and Inze had both involved claims against the State. Finally, he recalled that the legislation relating to adoption and illegitimacy had been changed so that there was now no discrimination on grounds of adoption or illegitimacy save in cases where the will was made before the relevant date. The applicant’s criticism was therefore criticism that the amending legislation was not retrospective so as to affect the interpretation of existing instruments. He considered that there were sound reasons, such as the need for legal certainty, for not making such legislation retrospective. He thus agreed with the applicant that the effect of the rules as to legitimacy and adoption in a case where the will was made in 1930 discriminated against him as an illegitimate son of his father, but he did not consider that the position was altered by the Human Rights Act 1998. Judge Behrens therefore concluded that the applicant was not a legitimate child of his grandfather within the meaning of his grandfather’s will, and that the disputed share of the estate passed to the applicant’s grandfather’s youngest son. He also refused leave to appeal, but, according to the Government, extended the time for appealing. On 26 January 2005, after the time limit for appealing had expired, the applicant filed an applicant’s notice with the Court of Appeal, seeking an extension of the time for filing a notice. On 31 January 2005 he sought a further lengthy extension of time in which to lodge a bundle of documents and generally to progress his application. An extension was granted to 17 February 2005. On 16 February 2005 the applicant wrote to the Civil Appeals Office, explaining that he would be unable to comply with the deadline as he had gone to Australia. He indicated that he wished to withdraw his application and sought a refund of his fee. He was sent “dismissal with consent” forms to complete and return, and was told that if the defects in his bundle were not remedied by 18 March 2005, his application would be dismissed unless he provided a sufficient reason. Nothing more was heard from the applicant, and on 23 March 2005 the application was dismissed for failure to complete the dismissal with consent forms, and for failure to progress the case within the Civil Procedure Rules and Practice Directions. On 9 August 2005, the applicant sought permission to reinstate, and the Court of Appeal (Civil Division) dismissed the application after a hearing on 14 November 2005. Lord Justice Parker noted that the effect of reinstatement would be to grant an extension of time of over a year, and he could see no grounds for granting such a substantial extension. Time limits were there to be complied with unless there were good reasons for failing to do so, and the applicant had shown no good reasons. Lord Justice Parker also referred to the applicant’s reliance on the 12-month period for bringing proceedings under section 6 of the Human Rights Act. However, the action before the court was not a proceeding under sections 6 or 7 of that Act, and the 12-month period had no application. Lord Justice Parker did not accept the applicant’s submissions that it was not his fault that he was so substantially out of time, and refused to reinstate the earlier application which had been struck out. The judge mentioned in passing that he considered that the proposed appeal had no real prospect of success, and indeed that the judge’s conclusions as to the effect of English statute law were plainly right. He underlined, however, that the application was dismissed for failure to provide good reason for the substantial delay. The Human Rights Act 1998, which entered into force on 2 October 2002, provides as follows: “2. (1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any- (a) judgment ... of the European Court of Human Rights ... ... so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen ... 3. (1) So far as possible, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights. (2) This section- (a) applies to primary legislation and subordinate legislation whenever enacted; (b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation ... 4. (1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility .. (6) A declaration under this section...- (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and (b) is not binding on the parties to the proceedings in which it is made.” In Wilson and others v. Secretary of State for Trade and Industry ([2003] UKHL 40), the House of Lords considered that the courts’ power to make a declaration of incompatibility in respect of legislation only arose where it was not possible to give effect to the statute in a manner compatible with the Convention. Further, Parliament had not intended section 3 (1) of the Human Rights Act 1998 to have the effect of altering the existing rights and obligations of parties to an agreement made before the section entered into force.