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You are here: BAILII >> Databases >> European Court of Human Rights >> Wood v United Kingdom - 32540/96 [1997] ECHR 200 (02 July 1997) URL: http://www.bailii.org/eu/cases/ECHR/1997/200.html Cite as: 24 EHRR 69, (1997) 24 EHRR 69, 24 EHRR CD69, (1997) 24 EHRR CD69, [1997] ECHR 200 |
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AS TO THE ADMISSIBILITY OF
Application No. 32540/96
by Peggy Ella WOOD
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 2 July 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 21 January 1996
by Peggy Ella WOOD against the United Kingdom and registered on
6 August 1996 under file No. 32540/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen, born in 1916, and resident
in Portsmouth. She is represented before the Commission by
Mr. A Simmons, a solicitor working for the Centre for Advice on
Individual Rights in Europe ("the AIRE Centre") in London.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In 1973 the applicant consulted a solicitor Mrs. H of H & Co. in
order to seek a loan upon the security of her house. Mrs. H arranged
several loans for the applicant during 1973 and 1974. One of these
loans was from another client of H & Co., another was a loan directly
from H & Co.. The most significant loan was one of £7,000 from a
company M Ltd., secured by a first mortgage over the applicant's
property. M Ltd. was partly owned by the husband of Mrs. H, who was
also the senior partner of H & Co. The applicant was not informed of
Mrs. H's personal involvement with M Ltd.
The applicant was unable to keep up repayments on the loan and
in April 1975 H & Co. commenced proceedings on behalf of M Ltd.,
seeking possession of the applicant's house. The applicant, realising
that her former solicitors were now proceeding against her, instructed
a different firm of solicitors to act for her. These new solicitors,
by means of a company search, revealed the interest of Mr. H in M Ltd.
Despite requests from the applicant's new solicitors, H & Co. refused
to end their participation in the litigation. In 1977 the proceedings
regarding the loan from M Ltd. were compromised, with M Ltd. agreeing
not to seek repossession until January 1979 or the sale of the
property, whichever date was the earlier.
In February 1979 the applicant wrote to the Law Society, the
regulatory body of solicitors in England and Wales, complaining about
the conduct of Mrs. H and H & Co. The Law Society responded that
H & Co. were acting for M Ltd. and owed no duty to the applicant. The
applicant wrote back immediately to clarify that H & Co. had formerly
been her solicitors, but received the same response.
In October 1979 H & Co. began fresh proceedings on behalf of
M Ltd. seeking possession of the applicant's house. H & Co. also
pursued actions against the applicant on behalf of one of their clients
who had loaned the applicant money, and on behalf of themselves, in
respect of the loan they had made to the applicant and with regard to
their unpaid costs.
In 1981 the applicant brought proceedings against H & Co. and
M Ltd., alleging conspiracy, breach of fiduciary duty and negligence,
and seeking to have the charge in favour of M Ltd. over her house set
aside. However, in July 1981 M Ltd. was granted possession of the
applicant's house and an appeal against this order was dismissed in
1982.
In 1981 the applicant wrote to the Office of Fair Trading to
complain about H & Co. The Office of Fair Trading in turn wrote to the
Law Society. On this occasion the Law Society responded by informing
H & Co. of the complaint. In early 1982 Mrs. H wrote to the Law Society
stating that the applicant had been hard pressed to find the loan money
and probably would not have objected to the conflict of interests had
she known. In 1983 the applicant was informed by the Law Society that
her complaint would not be adjudicated so long as there was ongoing
litigation.
On 6 September 1983 the applicant was evicted from her home.
In early 1986 the applicant approached her Member of Parliament
who wrote to the Law Society, and in August 1986 the applicant's
solicitors wrote to the Law Society setting out the complaints against
H & Co. The Law Society replied that the only remedy available to the
applicant was in a civil action against H & Co..
In 1987 the applicant settled her civil action against H & Co.
for £2,500 together with her costs.
On conclusion of these proceedings the Law Society commenced an
investigation into the conduct of H & Co. The report was completed in
1989. As a result of the report a formal rebuke was issued to Mrs. H
by the Law Society, but no further measures were taken.
On 4 April 1989 the applicant began legal proceedings against the
Law Society for negligence for not investigating her complaint
promptly. In the judgment of this case on 28 July 1993 Mr Justice Otton
was very critical of the behaviour of the Law Society and their failure
to competently investigate the applicant's complaint. However he
nevertheless found for the Law Society stating that :
"... [the applicant] never did have a realistic chance of saving
her home through the intervention of the Law Society in either
1979 or in 1983. ... I am driven to the conclusion that the real
reason why she was eventually evicted was because she could not
raise the money to satisfy her creditors and the law took its
inevitable course."
On 27 February 1995 the Court of Appeal dismissed an appeal made
by the applicant against the judgment at first instance. The Court of
Appeal assumed that the Law Society owed the applicant a duty of care,
although the point was left open, and the appeal was rejected on
grounds of a lack of causation and failure to establish damages
sustained. The Court rejected the suggestion that if Mrs. H or H & Co.
had been rebuked by the Law Society then M Ltd. would not have sought
possession of the applicant's house. The Court further stated that the
applicant had chosen to settle her negligence claim against H & Co. for
an agreed sum plus costs.
On 21 July 1996 the applicant was refused leave to appeal against
the judgment of the Court of Appeal by the Appeals Committee of the
House of Lords.
COMPLAINTS
The applicant complains that the Law Society did not criticise
the professional conduct of H & Co. until 1989, 10 years after the date
of her first complaint. The applicant considers that the failure of the
Law Society to rebuke H & Co., meant that she was unsuccessful in her
legal proceedings to try and stop the repossession of her home. She
invokes Article 8 and Article 1 of Protocol No. 1 of the Convention.
The applicant further complains that she did not receive a fair
hearing in her case against the Law Society and that the judgment in
this case amounted to giving the Law Society immunity from all
negligence claims, in breach of Article 6 para. 1 of the Convention.
She also alleges that the behaviour of the Law Society was such
that she had no effective remedy against H & Co., in breach of
Article 13 of the Convention.
THE LAW
1. The applicant complains under Article 8 and Article 1 of
Protocol No. 1 (Art. 8, P1-1) of the Convention, about the events that
led to the repossession of her house, and the failure of the Law
Society to promptly rebuke H & Co.
Article 8 (Art. 8) of the Convention provides:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
Article 1 of Protocol No. 1 (P1-1), provides so far as relevant,
as follows:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law..."
The Commission notes that the applicant's house was repossessed
when she was unable to meet the repayments on a loan which was secured
by a mortgage over the house.
In so far as the applicant complains that had the Law Society
rebuked H & Co., then the loan may not have been enforced by
repossession of the house, the Commission notes that this argument was
rejected by both the High Court at first instance and the Court of
Appeal. Both these courts considered that the house would have been
repossessed in any event, due to failure to repay the loan, regardless
of any action by the Law Society. The Commission considers that even
in so far as it may be assumed that the Law Society had any obligation
to intervene to discipline H & Co., the applicant has failed to show
that any failure on their part was causative of the repossession of her
house.
In so far as the repossession constituted an interference with
the applicant's home, the Commission finds that this was in accordance
with the terms of the loan and the domestic law and was necessary for
the protection of the rights and freedoms of others, namely the lender.
To the extent that the applicant is deprived of her possessions by the
repossession, the Commission considers that this deprivation is in the
public interest, that is the public interest in ensuring payment of
contractual debts, and is also in accordance with the rules provided
for by law. It follows that this part of the application must be
dismissed as manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
2. The applicant complains that she did not receive a fair hearing
in her case against the Law Society. She further complains that the
judgment in this case amounted to giving the Law Society immunity from
all negligence claims. The applicant invokes Article 6 para. 1
(Art. 6-1) of the Convention.
Article 6 para. 1 (Art. 6-1) of the Convention provides, so far
as relevant, as follows:
"1. In the determination of his civil rights and obligations
... everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law..."
In so far as the applicant complains against the judgment in her
case against the Law Society, the Commission recalls that in accordance
with Article 19 (Art. 19) of the Convention, it is not competent to
deal with an application alleging that errors of law or fact have been
committed by domestic courts, except where it considers that such
errors might have involved a possible violation of any of the rights
and freedoms set out in the Convention (see Application No. 19890/92,
Dec. 3.5.93, D.R. 74, p. 234). With regard to the applicant's specific
complaint that she was unable to sue the Law Society in negligence, the
Commission notes that the Court of Appeal did not find that the Law
Society owed no duty of care to the applicant. Rather the point was
left open, the Court of Appeal working on the assumption there was such
a duty and rejecting the applicant's claim on grounds of causation and
damage. The Commission further notes that the applicant in any event
had a remedy in respect of the circumstances of the loan, by means of
her negligence claim against H & Co. themselves.
The Commission finds no evidence in the facts as submitted by the
applicant, that there has been any arbitrariness or unfairness, on the
contrary her case was given a full and detailed consideration by the
High Court and the Court of Appeal.
It follows that this complaint must be dismissed as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant complains under Article 13 (Art. 13) of the
Convention that she had no effective remedy as against the Law Society.
Article 13 (Art. 13) of the Convention provides:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The Commission recalls that the guarantees of Article 13
(Art. 13) apply only to a grievance which can be regarded as "arguable"
(cf. Eur. Court HR, Powell and Rayner v. the United Kingdom judgment
of 21 February 1990, Series A no. 172, p. 14, para. 31). In the present
case, the Commission has rejected the substantive claims as disclosing
no appearance of a violation of the Convention. For similar reasons,
they cannot be regarded as "arguable".
It follows that this complaint must be dismissed as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber