CASE OF DOUSTALY v. FRANCE
Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
N. Valticos
7. Mr Michel Doustaly, who lives in Nîmes, was formerly in practice as an architect. 8. On 9 January 1984 Nîmes City Council awarded him a contract for work on the design and construction of a general-purpose senior high school to be built as part of the State school system. While the work was in hand he received advances on the agreed fees totalling 1,336,643.53 French francs (FRF) as stipulated in the contract. 9. In a letter of 12 April 1984 the Council asked the applicant to carry out a further study and prepare the plans for a building to be used as boarding accommodation that had not been included in the original invitation to tender. 10. When the work was completed the Council decided to reduce by half the amount of the agreed fees, alleging, among other matters, breaches by the applicant of his contractual obligations. It also refused to pay his fees for drawing up the plans for the boarding unit and, taking into account the official classification and the complexity of the work that had actually been done, asked him to repay FRF 494,370.06 of the interim payments he had received. 11. On 26 July 1985 Mr Doustaly lodged an application with the Montpellier Administrative Court, which registered it on 29 July 1985. He sought an order requiring Nîmes City Council to pay him FRF 669,100.39, and the interest to which he was legally entitled, as final settlement of the fees agreed in the contract. 12. The Council filed its defence on 30 September 1985. 13. On 21 January 1988 the applicant filed an additional pleading. On 24 February and again on 24 March 1988 he sent letters to the President of the Administrative Court requesting that a date be fixed for the hearing. On 29 February 1988 he filed further documents. 14. On 20 October 1988 the applicant again requested the President of the Administrative Court to fix a date for the case to be tried. 15. In an interlocutory decision of 19 December 1988 the Administrative Court ordered an expert opinion to establish whether the work had been correctly carried out by Mr Doustaly and gave the expert appointed four months in which to submit his report. 16. On 31 December 1988 Mr Doustaly permanently gave up his architect’s practice on account of financial difficulties. 17. On 21 May 1991 the expert filed his report, in which he assessed the balance of the fees owed at FRF 363,600, plus FRF 160,000 in fees for preparing the plans of the boarding unit. 18. On 4 September 1991 the applicant asked the court to order Nîmes City Council to pay him FRF 363,671.28 under the contract and FRF 160,000 in payment for the plans of the boarding unit, plus default interest on both sums from 5 November 1984. He further claimed FRF 760,000 in damages. 19. On 3 December 1991 the Administrative Court put the Council on notice to produce their pleading. 20. On 16 January 1992 the applicant filed a supplementary pleading in which he repeated his submissions of 4 September 1991 (see paragraph 18 above) and sought an order requiring the Council to pay FRF 867,350 in compensation for the extra costs of drawing up the plans. 21. In a letter of 27 January 1992 he pointed out to the President of the Administrative Court that the time-limit given to the Council on 3 December 1991 for the production of their pleading (see paragraph 19 above) had expired with no reply forthcoming. 22. On 11 February and 5 June 1992 Mr Doustaly filed further observations. 23. In letters of 17 July and 14 December 1992 to the President and the registry of the Administrative Court the applicant again asked for a date to be fixed for the hearing. This was held on 14 January 1993. 24. On 21 January 1993 the Administrative Court ordered Nîmes City Council to pay the applicant the sum of FRF 470,301.28, FRF 310,301.28 of which was to bear default interest as from 27 November 1984 and FRF 160,000 from 20 October 1991. A sum of FRF 53,370, which was to bear default interest as from 27 November 1984, had been deducted from the fees owed to the architect on account of the unsatisfactory quality of the work done by his sub-contractor. With regard to the damage to Mr Doustaly’s professional reputation, the judgment stated that he had not proved “that the fall in his practice’s turnover was the direct consequence of conduct imputable to Nîmes City Council…”. 25. On 17 May 1993 the applicant, considering that the sum awarded was insufficient, appealed to the Bordeaux Administrative Court of Appeal. 26. As the appeal did not have suspensive effect, Mr Doustaly applied on 16 July 1993 to the Report and Research Division of the Conseil d'Etat. However, after the Council had made a first payment the case was closed on 11 October 1993 on the ground that execution of the judgment was currently in progress. The Council’s two further payments were made in December 1993 and February 1994. 27. Nîmes City Council filed its defence on 28 September 1993. 28. On 4 July 1994 the Administrative Court of Appeal upheld the Administrative Court’s judgment regarding the capital sum but ordered the Council to pay interest on the interest awarded at first instance which had accrued since 17 May 1993. 29. In letters of 30 January, 3 May and 10 May 1995 the applicant applied to the prefect of the Gard département to secure compliance by the Council with the above judgment. The sum owed to the applicant, FRF 778,127.27, was paid on 18 May 1995. 30. In a judgment delivered by the Nîmes Court of Appeal on 22 May 1997 in connection with the litigation between the applicant and his sub-contractor, Mr Doustaly was awarded the sum of FRF 53,370, together with default interest calculated from 27 November 1984 and payable in the form of compound interest from 20 October 1993, that sum having been deducted from the outstanding fees he was owed by Nîmes City Council on account of the unsatisfactory quality of the work done by his sub-contractor (see paragraph 24 above).