CASE OF BHANDARI v. THE UNITED KINGDOM
Violation of Art. 6-1
Josep Casadevall;Nicolas Bratza
3. The applicant was born in 1934 and lives in the Isle of Man. He grew raspberries there and had a lucrative contract with the shop Marks & Spencers, but lost it in 1990 when the local environmental health officer let it be known to the shop that the applicant was packing raspberries in his kitchen. The applicant and his wife sued the Department of Local Government and the Environment ('DOLGE') for mis-statement and were awarded over GBP 16,000 in damages by the Manx High Court on 1 April 1993. The applicant did not consider that this was enough, and, wishing to appeal, instructed a new (Manx) advocate, a Mr Carter, then a partner in a firm of advocates called Carter Jones McDonald ('CJM'). Mr Carter advised that there was merit in an appeal, and applied for legal aid on his client's behalf in April 1993: this application was rejected on 25 May 1993. The applicant's Petition of Appeal from the first instance judgment was rejected the next day because it had been filed two days late. Mr Carter advised (via letter and at a meeting) that it would not be unduly difficult to apply for an extension of time in which to lodge the appeal, but that, in the circumstances, the best course of action was for the applicant to cut his losses and to accept an offer put forward by DOLGE. The applicant accepted this advice and, on 17 June 1993, DOLGE's offer of GBP 20,000. 4. CJM issued proceedings against the applicant for payment of their fees on 7 December 1993. An advocate instructed by the applicant to defend the claim failed to file a Defence in the prescribed period, and judgment was entered for CJM on 5 January 1994. After taxation of CJM's costs, judgment was issued on 2 March 1995 for a total of GBP 929.80. Mr Carter then applied for execution of the judgment and on 9 October 1995, the applicant's property was placed under arrest by the Coroner. The applicant appealed on 30 October 1995 and on 7 November 1995 Mr Carter wrote to the Coroner and the applicant requesting that no further steps be taken in respect of the enforcement of the execution against the applicant until specifically instructed. It appears that the execution remained suspended until the judgment of 17 November 2003 detailed below. 5. After a delay occasioned by their difficulty in obtaining legal aid, the applicant and his wife brought proceedings on 26 March 1996 against CJM in negligence, claiming that CJM's actions and omissions in April-June 1993 had deprived them of the opportunity to pursue their appeal against the first instance decision in their case against DOLGE. These proceedings are referred to hereafter as “the CJM proceedings.” In them, the applicant and his wife were represented throughout by leading Counsel from England, who had been granted a special temporary licence as a Manx advocate. The proceedings were heard by Acting Deemster Hall, succeeded by Acting Deemster Newey. 6. The summons issued on 26 March 1996 was not served on CJM until 20 March 1998, the time for service of the summons having been extended by the High Court on 27 February 1997. After the applicant filed a motion for judgment in default of defence on 22 June 1998, it appears a first defence was served out of time on 7 July 1998. A second defence was served on 16 September 1998. After the service of this second defence, a motion filed by the applicant for judgment in default was dismissed by consent on 17 September 1998. On 25 January 1999 the defendants filed a motion for a split trial between liability and quantum issues, which was dismissed on 25 October 2000. It appears that there had been no correspondence between the parties and the High Court between 27 July 1999 and 6 January 2000, leading the High Court to write to the defendants on 26 January 2000 indicating, inter alia, that Acting Deemster Hall “was very anxious to progress the matter”. After the dismissal of the defendant's motion for a split trial on 25 October 2000, it appears it was incumbent on the applicant to apply to have the case set down for trial within 28 days of this date. No application was made. On 12 January 2001, the High Court wrote to the applicant's solicitors requesting that they make the necessary application as soon as possible. On 19 January 2001, the applicant's solicitors replied, apologising for the delay in their application. On 22 January 2001, the High Court replied with instructions from the Acting Deemster that the case be set down for trial within 28 days. Both parties responded expressing concern at this proposal. It further appears that throughout 2001 the parties each filed a number of motions, the defendants requesting a stay in the proceedings and each seeking leave to amend the statement of case, the defence and reply. Further such motions were sought throughout 2002 and January and February 2003. On 31 October 2002 and 12 February 2003, the High Court made orders setting further directions for the proceedings. Further orders were agreed by consent between the parties on 21 June 2001, 1 February 2002 and 17 July 2002, in each instance agreeing to a revised timetable and date for trial. On 20 December 2002 the applicant issued a motion for additional time to serve a further expert report to which the defendants responded with a motion that the action be struck out for non-compliance with orders of the High Court. In order to hear the motions, the High Court vacated the scheduled trial date. They were heard on 12 February 2003 with the defendant's motion being dismissed, the applicant being given leave to serve the expert report and further directions being given to the parties. 7. The CJM proceedings did not therefore come to trial before Acting Deemster Newey until 21 March 2003, at which point CJM essentially conceded liability and limited themselves to contesting quantum. By a judgment dated 17 November 2003: (1) the judgments obtained by CJM in 1995 were set aside (by consent) and these earlier proceedings dismissed; and (2) the applicant and his wife were awarded the sum of GBP 10,780.93 plus interest of GBP 8,567.13. 8. The applicant and his wife appealed against the quantum of the award; their appeal was dismissed on 25 May 2004. In a detailed 37 page judgment, the High Court of Justice of the Isle of Man (Staff Government Division) considered and dismissed each head of their challenge to the conclusions of the first instance judge. It seems that the applicant's Counsel was directed by the lead judge at the end of the hearing that his interest was now at end. 9. The applicant wished to apply to the Privy Council for special leave to appeal directly to the Council but it appears that after failing to obtain such leave as a “poor person” and failing to obtain legal aid from the Manx authorities, he did not do so. 10. Rule 6 of Order 2 of the Rules of the High Court of Justice of the Isle of Man provides that for the purpose of service, a summons is valid in the first instance for twelve months beginning with the date of its issue by the Chief Registrar. Where a summons has not been served on a defendant, the Court may by order extend the validity of the summons for a period, not exceeding twelve months at any one time. Rule 1 of Order 22 provides that the Court may, at any stage of the proceedings, allow either party to alter or amend his pleadings, in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Rule 7 of Order 47 provides that a Court shall have power to enlarge or abridge the time appointed by the Rules, or fixed by any order enlarging time, for doing any act or taking any proceeding, upon such terms (if any) as the justice of the case may require. Any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed. Rule 8 of the same Order provides that the time for delivering, amending, or filing any pleading, answer, or other document may be enlarged by consent in writing, without application to the Court.