- Judgment date: 2017-01-12
- Communication date: 2014-12-17
- Application number(s): 22510/13
- Country: GBR
- Relevant ECHR article(s): 6, 6-1, 13, P1-1
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings
Article 6-1 - Reasonable time)
- Result: Violation SEE FINAL JUDGMENT
- Probability: 0.508349
- Prediction: Violation
Communication text used for prediction
The applicant, Mr Andrew McNamara, is a British national, who was born in 1942 and lives in Lamlash.
He is represented before the Court by his daughter, Ms C. McNamara.
The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows.
Background facts The applicant founded a business in 1966, which was ultimately incorporated as Arakin Limited (“Arakin”).
In the second half of the 1980s, Arakin became involved in two commercial disputes which form the basis of the present application.
In 1986 Tods Murray solicitors were retained in relation to a construction dispute with Glasgow District Council.
The dispute was ultimately resolved by arbitration.
In 1988 Tods Murray were retained by Arakin in relation to a dispute with Arakin’s former accountants.
On 22 December 1994 Tods Murray gave notice that it would no longer act for the company.
The notice letter noted Arakin’s insistence that all fees incurred by it be taxed.
Domestic Proceedings a.
Proceedings from 1996 to 2001 On 27 May 1996 Tods Murray commenced legal proceedings against Arakin in the Outer House of the Court of Session for payment of 32,696.75 pounds sterling (“GBP”) in respect of fees relating to the dispute against Arakin’s former accountants.
The sum claimed by Tods Murray was amended to GBP 41,696.75 on 4 September 1996.
On 8 October 1996 the Outer House ordered a detailed account of the fees owed (“Accountant Dispute Account”) to be produced to the Auditor for taxation within twenty eight days.
The Accountant Dispute Account was lodged by Tods Murray.
On 19 December 1996 the claim was again amended to include a second sum, GBP 204,594.13, in respect of the Glasgow District Council dispute.
A detailed account of the fees owed in respect of this dispute appears to have been lodged by 18 March 1997 at the latest.
On 4 August 1997 the Auditor began to tax both accounts.
He completed the taxation four weeks later.
On 30 January 1998 Arakin issued a counter-claim alleging that Tods Murray’s services had been deficient.
The Auditor reported in relation to both accounts on 27 March 1998.
Between 28 March 1997 and 27 October 1998 the Outer House dealt with a number of unopposed motions and heard the parties on several occasions in relation to procedural matters.
On 18 December 1998 the Outer House made an order requiring Tods Murray to produce a further detailed account (“Second Accountant Dispute Account”) by 28 February 1999 and to send it to the Auditor.
The account was lodged in March 1999.
The Auditor lodged a report relating to the Second Accountant Dispute Account with the court on 26 October 1999.
On 25 February 2000 Arakin’s legal representatives stopped acting for the company.
On 6 April 2000 Arakin assigned its rights in the proceedings to the applicant and another individual, Mr M Frost (“the Defenders”).
Between 30 December 1998 and 25 April 2000 the Outer House dealt with various procedural motions, including by way of a number of hearings.
On 9 May 2000 the Outer House refused the Defenders’ application to be joined to the ongoing counter-claim proceedings as parties.
It granted the Defenders leave to appeal its refusal.
On 6 March 2001 the Inner House of the Court of Session heard the Defenders’ appeal and reserved judgment.
The appeal was refused on 10 April 2001.
On 29 May 2001 the Defenders were given permission to become parties to both the claim and counter-claim in place of Arakin if the sum of GBP 100,000 was lodged with the court.
The sum was duly lodged.
Between 22 June 2001 and 12 October 2001 the Outer House considered a number of procedural motions.
At a hearing on 20 November 2001, the Outer House made various orders including that the Auditor address submissions the parties had made objecting to his reports and that a hearing take place on those submissions on 4 March 2002.
On 18 December 2001 the Auditor provided the submissions ordered.
On 20 December 2001 the Outer House ordered the Defenders to lodge, by 11 January 2002, particulars of allegations which they were seeking to make about a “lack of authenticity” of documents in the proceedings.
It directed that the case be heard on 18 January 2002 to decide on the procedure to be followed in determining the allegations.
Proceedings from 2002 to 2004 On 18 January 2002 the Outer House directed that the case be heard on 13 February 2002 to determine the procedure to be followed to resolve the allegations.
On that date it ordered that the Defenders lodge any other allegations concerning authenticity within fourteen days and directed that the case be heard on 6 March 2002.
On 5 March 2002 the court discharged the hearing on the parties’ submissions objecting to the Auditor’s reports with the consent of both parties and ordered that procedural aspects only be heard on 6 March 2002.
On 6 March 2002 the Outer House again ordered that the Defenders’ allegations of lack of authenticity be dealt with at a hearing and reserved its decision on the procedural aspects of the proceedings relating to objections to the Auditor’s reports.
On 15 March 2002 it ordered that the hearing take place on 14 May 2002.
Between 22 March 2002 and 27 June 2003 the Outer House considered various procedural motions and held a number of hearings, including of evidence.
The Outer House reserved its decision on the Defenders’ allegations about lack of authenticity of documents on 22 August 2003.
On 31 October 2003 it issued an opinion rejecting the Defenders’ allegations about the authenticity of documents.
Between 13 November 2003 and 9 January 2004 the Outer House dealt with various applications.
On 22 January 2004 the Outer House ordered that the Defenders be liable for the costs caused by the authenticity allegations which it had rejected on 31 October 2003.
It also ordered that the Defenders’ counter-claim should not proceed until those costs were paid.
It stayed the case pending the outcome of another case involving the applicant.
On 21 April 2004 the Inner House refused permission to appeal the Outer House’s decision of 22 January 2004.
Meanwhile, on 23 March 2004 the Outer House heard the parties and ordered the lifting of the stay.
On 29 April 2004 Mr Frost informed the Outer House that he had been made bankrupt.
On that date the court ordered that 8 and 9 June 2004 be listed as the date for the hearing of the parties’ submissions on the Auditor’s reports.
On 8 June 2004 the hearing commenced.
On 9 June 2004 it was adjourned to 24 August 2004.
On 5 August 2004 the hearing was further adjourned to 11 November 2004 and the parties were ordered to lodge certain documents relating to the taxation.
On 12 November 2004 the court finished the hearing and reserved judgment.
c. Proceedings from 2005 to 2007 Between 10 February 2005 and 20 December 2005 the Outer House heard the parties on several occasions in relation to applications made by the applicant.
On 28 April 2006 the Outer House gave its opinion on the parties’ submissions on the Auditor’s reports and adjourned the case until 8 June 2006.
It noted that Tods Murray had by that date admitted that the sum of GBP 204,594.13, included in the proceedings by amendment of the summons on 19 December 1996, was erroneous and should have been GBP 62,860.77.
It also decided that some of the issues which had been raised subsequent to the taxation should have been decided before it had taken place.
Other issues before the Auditor had been ones which he could not decide upon and should have been raised in the subsequent legal proceedings.
The Outer House ultimately upheld (at least in part) three of the Defenders’ objections and ordered a hearing in relation to one of Tods Murray’s objections.
On 8 June 2006 the Outer House made an order setting out its findings, granting Tods Murray leave to appeal and granting leave to appeal, propio motu, to both parties in certain other regards.
Tods Murray appealed and on 16 June 2006 the Inner House set a deadline of twenty-eight days to submit grounds of appeal.
On 14 July 2006 the Inner House decided that the appeal was not suitable for early disposal and that there should be a hearing.
The appeal was heard on 21 March 2007.
The Inner House found in favour of Tods Murray.
It decided that the taxations should be returned to the Auditor but only to deal with the specific points on which it had decided.
On 27 April 2007 the Inner House remitted the matter to the Outer House so that the accounts could be remitted to the Auditor.
On 9 May 2007 the Outer House set directions for the case and decided that a hearing on factual issues arising out of the 2006 opinion would be heard on 18 June 2007.
On 20 June 2007 the court ordered that the hearing be adjourned to a date to be fixed when the Auditor had lodged further reports.
d. Proceedings from 2008 to 2009 On 21 January 2008 a taxation hearing was held before the Auditor following the Inner House’s decision to remit the accounts.
On 2 June 2008 he reported on his taxation of the remitted accounts.
Between 7 December 2007 and 20 August 2008 the Outer House heard the parties on two occasions and considered unopposed motions on two occasions.
On 24 September 2008 the Outer House reserved its decision on the factual issues arising out of the 2006 opinion after hearing from the parties.
On 2 October 2008 the court refused one of Tods Murray’s objections; remitted an account to the Auditor to be taxed and set directions for the case, including a refusal to hear evidence on lack of access to Tods Murray’s files.
Between 9 January 2009 and 22 April 2009 the Outer House heard the case on several occasions and on the latter date ordered evidence to be heard prior to legal issues being considered.
The Lord Advocate applied to have the applicant declared a vexatious litigant.
He relied on four sets of proceedings, including the Tods Murray litigation.
On 4 June 2009 the Inner House declared the applicant a vexatious litigant.
The court did not accept that the Tods Murray litigation itself satisfied the statutory requirements but decided that the other proceedings did.
In exercising its discretion to make such a finding, it found that the applicant’s ill-founded 2002-2003 allegations about lack of authenticity of documents; a finding that he had used a proof in the Tods Murray litigation for collateral purposes and the court’s observations about wastage of time because of disorganisation and persistent pursuit of irrelevant matters in that litigation were relevant but decided that his taking of an assignation from Arakin was not.
Unlike his co-defendant, he was not involved in litigation as a business but as an assignee of his family company in a position where the company would not otherwise have had representation.
It also noted that in his submissions on the exercise of discretion the applicant had accepted that his lack of legal expertise had caused delay in the proceedings.
On 14 August 2009 the Outer House ordered that the case be listed on 10 November 2009 for a four-day hearing of legal issues.
On 22 October 2009 the Outer House vacated the hearing listed for 10 November 2009 following an application by the applicant.
The Outer House listed an eight-day hearing to commence on 1 December 2009.
On 10 December 2009, after ten days of hearings, the court reserved judgment.
e. Proceedings from 2010 to 2012 On 9 July 2010 the Outer House delivered its opinion.
The court decided that the final hearing should be restricted to a single issue, namely what sums had been paid by Arakin in relation to the accounts as taxed and as a result whether it still owed any money.
The applicant’s defences were dismissed in their entirety apart from the issue of quantum and the counter-claim was dismissed.
The applicant applied to appeal against the decision.
Between 20 October 2010 and 28 January 2011 the Inner House dealt with various procedural aspects of the appeal.
On 3 March 2011 the Inner House refused the applicant’s appeal, found the applicant liable in costs and remitted the matter to the Outer House.
On 11 May 2011 the Outer House heard both parties, directed them to discuss pre-trial matters and listed a hearing for 13 June 2011.
It also listed a hearing of the parties’ arguments commencing on 18 July 2011.
On 13 July 2011 the court again heard the parties and made orders including that the applicant’s daughter be allowed to act as a lay assistant and for the final hearing to be delayed one day to 19 July 2011.
On 21 July 2011 the Outer House ordered that a hearing of the parties’ submissions take place on 17 October 2011.
On 17 October 2011 it heard submissions from the parties and then reserved judgment.
On 14 February 2012 the court determined that the applicant was liable in the sum of GBP 86,376.40.
The applicant appealed the Outer House’s decision.
On 14 November 2012 the Inner House decided to uphold the decision.
It found that it was not open to it to revisit the various decisions it had made previously concerning aspects of the litigation.
f. Proceedings in 2013 The Outer House listed a hearing to take place on 1 July 2013 to determine liability for expenses in the proceedings.
Because the applicant was unwell, the hearing was adjourned.
At a hearing on 22 July 2013 the Outer House granted a further adjournment in order to allow the applicant, who had informed it he would be on holiday, a “final opportunity to appear”.
The clerk of the court and Tods Murray’s representatives sought to bring the hearing, which had been re-listed for 29 July 2013, to the applicant’s attention by e-mail and by personal attendance at the applicant’s home address.
On 29 July 2013 the hearing proceeded in the applicant’s absence.
The judge found in favour of Tods Murray on the issue of expenses.
In relation to the applicant’s conduct he found that it had been: “[...] unreasonable and incompetent.
He has thereby caused the pursuer unnecessary expense.
In making that finding I take into account several factors: i. it has been difficult to discern any substantive defence to the action; ii.
Mr McNamara has argued lines of defence that are plainly incompetent, such as the incorporation of a case based upon professional misconduct; iii.
he has made very serious allegations against a number of professional persons, without being in possession of an expert report upon which to found them; iv.
he has persisted in repeating those allegations even when they have been held to be unjustified; v. in the case of Mr Simpson and Mr Dobie, his conduct may be characterised as a sustained campaign; vi.
he has caused substantial delay; for example, by raising irrelevant matters which were the subject of the proof before Lady Smith and by not paying awards of expenses for several years; vii.
at every stage, Mr McNamara has engaged in voluminous correspondence and communications with the solicitors for the pursuer and with the court, sometimes using an intemperate tone; viii.
he continues to make allegations against the court and those representing the pursuer.” On 16 August 2013 the applicant applied to appeal the Outer House’s decision.
Submissions were lodged by the parties and a hearing was listed for 1 November 2013 in the Inner House.
The Inner House refused his application to appeal.
On 28 November 2013 it appears that the Outer House granted the applicant leave to appeal its order dated 29 July 2013 out of time.
The reasons for this, and subsequent developments, are not known.
COMPLAINT The applicant complains under Article 6 § 1 of the Convention about the length of the civil proceedings in the present case.
CASE OF MCNAMARA v. THE UNITED KINGDOM
(Application no. 22510/13)
12 January 2017
This judgment is final but it may be subject to editorial revision. In the case of McNamara v. the United Kingdom,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Kristina Pardalos, President,Robert Spano,Tim Eicke, judges,
and Renata Degener, Deputy Section Registrar,
Having deliberated in private on 13 December 2016,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 22510/13) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr Andrew McNamara (“the applicant”), on 3 June 2013. 2. The applicant was represented by his daughter, Ms C. McNamara. The United Kingdom Government (“the Government”) were represented by their Agent, Mr P. McKell, of the Foreign and Commonwealth Office. 3. On 17 December 2014 the complaint concerning the length of the proceedings was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS
THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1942 and lives in Lamlash. A. The background facts
5. In 1966 the applicant founded a business which was later incorporated as Arakin Limited (“Arakin”). 6. In the second half of the 1980s, Arakin became involved in commercial disputes. In 1986 Tods Murray solicitors were retained in relation to those disputes. However, Tods Murray’s fees were not settled in full by Arakin. B. The domestic proceedings
7. On 27 May 1996 Tods Murray commenced legal proceedings against Arakin in the Outer House of the Court of Session (the first-instance civil court in Scotland in respect of claims over a certain value) for payment of 32,696.75 pounds sterling (“GBP”) in respect of fees relating to a dispute against Arakin’s former accountants. 8. On 30 January 1998 Arakin issued a counterclaim alleging professional misconduct and negligence. It sought GBP one million. 9. The dispute gave rise to four sets of overlapping proceedings. First, the proceedings to establish Tods Murray’s fees, which ran from 8 October 1996 to 2 October 2008 (in this the courts were assisted by the auditor for taxation, an expert officer of the Outer House who advises the court on disputes concerning legal fees); second, proceedings in respect of Arakin’s allegations of fraud against Tods Murray running from July 2001 to 22 January 2004; third, proceedings concerning the principal claim and counterclaim which ran from 9 January 2009 to 14 November 2012; and fourth, proceedings settling the overall costs of the case (excluding the fraud proceedings) which ran from 14 November 2012 to 13 November 2014. 1. The first set of proceedings: the taxation proceedings
10. On 8 October 1996, the Outer House ordered a detailed account of the fees owed to be produced to the auditor for taxation, in order for the amount of the fees due in respect of the litigation in question to be determined. 11. By March 1997 all accounts had been lodged with the auditor. On 4 August 1997 the taxation hearing began before the auditor. It lasted four weeks. On 27 March 1998 the auditor issued his reports. 12. The parties objected and from April 1998 the Outer House which was responsible for overseeing the taxation proceedings, held a number of hearings to settle the procedure and deal with the notes on objections, and also to hold a preliminary debate in the claim and counterclaim (the third proceedings). Some hearings were discharged at Arakin’s request. The court however refused Arakin’s request to stay the case. 13. The auditor issued his report on 26 October 1999. 14. By 14 October 1999 Arakin’s then solicitors had ceased acting for it. In February 2000 Arakin’s new solicitors withdrew from acting. From that time onwards Arakin had no legal representation. The applicant sought to appear at hearings in early 2000, on Arakin’s behalf. 15. The applicant subsequently applied for summary decree in the counterclaim and dismissal of the principal action. This was dismissed as incompetent on 22 June 2001. 16. Between June 2001 and April 2002, the Outer House sought to regulate the procedure in relation to the notes of objection lodged by both parties in respect of the accounts and dealt with other motions lodged by the applicant. It held a number of hearings. 17. However, no further progress could be made on the notes of objections until the allegations of fraud had been determined (the “second proceedings”; see paragraphs 23-28 below). In the course of 2002 and 2003, the court heard various incidental motions by the applicant who increased the sum sought in the counterclaim to GBP forty-five million. He also renewed motions which had previously been refused. 18. The allegations of fraud made by the applicant having been determined, the Outer House on 24 March 2004 ordered a two-day hearing on the notes of objections for 7 June 2004, which finally concluded on 12 November. In total, around fifty objections had been made, of which, seven were lodged by Tods Murray and the remainder by the applicant. 19. On 28 April 2006 the Outer House gave a judgment on the notes of objections, running to 223 paragraphs. Tods Murray appealed. On 14 July 2006 the Inner House ordered that there should be a hearing on 21 March 2007. Following that hearing, the Inner House found in favour of Tods Murray on all three points raised in the appeal. On 27 April 2007 the case was remitted to the Outer House. 20. On 9 May 2007, the Outer House ordered the parties to lodge their proposals for further procedure. 21. The accounts were returned to the auditor to consider the impact of the notes of objection which had been upheld. On 21 January 2008 a taxation hearing was held before the auditor and on 2 June 2008 he reported on his taxation of the remitted accounts. He assessed the total amount due in legal fees as GBP 409,597.50. Tods Murray accepted that Arakin had paid GBP 321,766.39 to date and the sum sued for was therefore the balance of GBP 87,831.11. 22. On 24 September 2008 a final hearing took place on the notes of objections. On 2 October 2008 the Outer House delivered its judgment, finally determining all questions relating to the valuation of the accounts. The taxation proceeding were therefore at an end. 2. The second set of proceedings: the applicant’s allegations of fraud against Tods Murray
23. In the meantime in July 2001, the applicant made allegations about the authenticity of the court papers, which developed into allegations of fraud against Tods Murray and their solicitors. Hearings took place before the Outer House between August and December 2001. On 20 December 2001 the Outer House ordered the applicant to lodge, by 11 January 2002, particulars of his allegations. On 18 January 2002 it directed that the case be heard on 13 February 2002. On that date, having regard to further allegations made by the applicant, it ordered that he lodge details of these allegations within fourteen days. On 6 March 2002, a factual hearing on the allegations was fixed for 14 May 2002. This hearing lasted 15 days but was ultimately insufficient. 24. From May 2002 the court repeatedly attempted to fix hearing dates that the applicant did not accept; the case was finally heard in August 2003. 25. On 31 October 2003 the court issued an opinion rejecting the applicant’s allegations in their entirety. It concluded, inter alia, that none of the allegations were well-founded; that the applicant had made representations which he knew or ought to have known were incorrect; that the hearing had taken an inordinate length of time because the applicant had persistently resorted to irrelevant lines of inquiry and had been disorganised in his presentation; that the hearing had been used as a vehicle to air grievances going beyond its scope and to advance the applicant’s interests in other litigation; that the applicant’s approach had been reckless; and that he had had no reasonable grounds for his asserted belief in the truth of the allegations. 26. The applicant sought leave to appeal the decision to the Inner House of the Court of Session. On 21 April 2004 the Inner House dismissed the application to appeal as incompetent since leave had not been obtained from the Outer House. 27. In the meantime, on 22 January 2004, the Outer House awarded costs against the applicant at a punitive rate in light of his conduct. The court also ordered that their payment was a condition to proceed with the counterclaim. Between 2004 and 2009 the amounts remained unpaid and the matter proceeded on the basis that the only issues to try were contained in the principal claim. 28. In early August 2009, the applicant paid the amounts to which the order of 22 January 2004 referred. 3. The third set of proceedings: the principal claim and the counterclaim
(a) The preliminary determination of the legal issues (the “legal debate”)
29. Following the conclusion of the taxation proceedings, the Outer House heard the parties on several occasions between 9 January 2009 and 22 October 2009 to determine future procedure and finally listed an eight‐day hearing of legal issues to commence on 1 December 2009. By the time of the hearing the applicant sought over GBP sixty-two million in his counterclaim. On 10 December 2009, after an eight-day hearing, the court reserved judgment. 30. On 9 July 2010 the Outer House delivered its opinion. It noted that Tods Murray’s claim was a simple one, namely an action for payment of a debt. The applicant’s position, it said, was “a great deal more complicated”. Despite lengthy written pleadings, the court had found it “difficult to determine the precise factual background” upon which he relied. Turning first to his defences to the principal claim, the court rejected all except one, namely the applicant’s argument that he had paid the fees due in full. This, the court said, was a matter for evidence appropriate for the subsequent factual hearing. 31. As to the counterclaim, after a careful examination of the applicant’s evidence, the court held that it was an “abuse of process”. It noted that very grave allegations had been made but that the applicant had produced no expert opinion to support them. 32. The applicant appealed against the decision. Between 20 October 2010 and 28 January 2011 the Inner House dealt with various procedural aspects of the appeal. On 3 March 2011 the Inner House heard the appeal and refused it. The case was remitted to the Outer House. (b) The hearing on the facts
33. On 11 May 2011 the Outer House heard both parties and fixed a hearing on the facts. On 21 July 2011 that hearing took place. A day was set aside for further argument and the parties lodged detailed notes of arguments, the applicant’s running to one hundred pages. 34. On 14 February 2012 the court handed down its judgment. It noted that Tods Murray’s case was “straightforward and cogent” but that it had been “very difficult to discern the defence to the action”. The applicant had repeated “scurrilous allegations” against partners in Tods Murray and the witnesses he had led had been of no assistance in determining the question before the court. The court also commented that the applicant had sought to revisit many points which had already been decided. It found in favour of Tods Murray in the principal claim and held that the applicant was liable in the sum of GBP 86,376.40. 35. The applicant appealed. On 6 March 2012 the Inner House found the appeal suitable for urgent disposal. A hearing took place on 4 and 5 July. In a judgment of 14 November 2012 the Inner House upheld the decision of the Outer House. It commented that it “had not found it easy to understand the arguments which [the applicant] sought to advance”. It further noted:
“Throughout the course of this protracted litigation Mr McNamara has sought to revisit arguments and allegations which have not found favour with the court on previous occasions ... Many of the issues which Mr McNamara has sought to argue before us cannot be argued competently before us now.”
36. It held that it was not open to it to revisit the various decisions it had made previously concerning aspects of the litigation in the context of interim appeals. This brought to an end the substantive issues in the litigation. 4. The fourth set of proceedings: the costs proceedings
37. The only remaining issue was costs. Tods Murray applied for its costs and the applicant lodged various applications. The Outer House listed a hearing to take place on 1 July 2013. However, the applicant contacted the court stating he was unwell, so it was adjourned to 22 July. He then told the court he was on holiday on 22 July. The court found this an inadequate reason for non-attendance and maintained the date. 38. The applicant did not appear at the hearing on 22 July 2013. The Outer House granted a further one-week adjournment in order to allow the applicant a “final opportunity to appear”. The clerk of court and Tods Murray’s solicitors sought to bring the hearing, which had been re-listed for 29 July 2013, to the applicant’s attention by e-mail, telephone and by personal attendance at the applicant’s home address. 39. On 29 July 2013 the applicant did not appear and the hearing proceeded in his absence. The judge found in favour of Tods Murray on the issue of expenses at an enhanced, punitive rate of expenses in light of the applicant’s conduct. The court commented:
“When this action was first raised in 1996, it appeared to be in short compass. The pursuer sought payment from the defender of its outstanding professional fees. It was therefore a simple action for recovery of a debt. Since then, Mr McNamara has introduced a great many factual and legal issues, which have been exhaustively examined over many hearings.”
40. In relation to the applicant’s conduct he found that it had been:
“ ...unreasonable and incompetent. He has thereby caused the pursuer unnecessary expense...”
41. It also awarded an additional fee to Tods Murray to reflect the “huge amount” of correspondence and documents sent to the Tods Murray’s solicitors by the applicant, much of which was irrelevant, the complexity of the proceedings, having regard to the “number, difficulty and novelty of the questions raised”, the skill time, labour and specialist knowledge required of the solicitors and the accusations of deception, incompetence and bad faith levelled against individual solicitors at Tods Murray. It rejected a number of motions lodged by the applicant. 42. The applicant appealed and lodged a number of documents. The appeal was refused on 16 July 2014. On 13 November 2014 the applicant was found “liable in the expenses” (that is, liable for the costs) of that appeal. His various motions were dismissed. The Inner House again noted that the applicant had sought to reopen issues already determined and continued to express his dissatisfaction with the court’s substantive decisions. 5. The vexatious litigant proceedings
43. Meanwhile, in 2009 the Lord Advocate (the chief legal officer of the Scottish Government) applied to have the applicant declared a vexatious litigant. He relied on four sets of proceedings, including the Tods Murray litigation. 44. On 4 June 2009 the Inner House declared the applicant a vexatious litigant but excluded the Tods Murray litigation from the order. It referred to the applicant’s ill-founded allegations about lack of authenticity of documents which it said were a “serious abuse of process”. In coming to this conclusion it also took into account the finding that he had used a proof in the Tods Murray litigation for collateral purposes. Moreover, he had wasted time because of his disorganisation and persistent pursuit of irrelevant matters in that litigation. It noted that the applicant had accepted that his lack of legal expertise had caused delay in the proceedings. THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
45. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
46. The Government contested that argument. 47. The period to be taken into consideration began on 27 May 1996 and ended on 13 November 2014. It thus lasted for eighteen years and five and a half months for eleven levels of jurisdiction. A. Admissibility
48. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
1. The parties’ submissions
(a) The applicant
49. The applicant argued that the legal fees generated by the underlying ligation should have been determined prior to the claim being raised. He did not accept that the underlying litigation was relevant to the complexity of assessing the solicitors’ fees due. However, he considered that the taxation proceedings themselves were complex. The fact that the Outer House was dealing with objections to the auditor’s report ten years after the claim commenced exemplified the complexities. 50. The applicant did not accept that his conduct complicated proceedings. The counterclaim had had a limited role in the proceedings since Tods Murray’s action did not require progress in the counterclaim to be concluded. The inaccuracies in the amount sought in the initial claim had complicated the proceedings. As regards the allegations he had made about the court papers, it had been the court that had directed him to set out his concerns as to the process. Finally, he complained in particular about the seventeen-month delay between the conclusion of the hearing on the notes of objections and the publication of the court’s opinion in April 2006. 51. The applicant concluded that the proceedings were genuinely exceptional. In his view, they should never have taken place at all and the claim should not have been raised without taxed accounts. The lengthy litigation had resulted in prolonged and increasingly heightened stress and anxiety. (b) The Government
52. The Government maintained that the duration of the proceedings at the various stages of the procedure had been reasonable, in particular in light of their complexity. 53. The Government noted that at the conclusion of the proceedings, the Outer House had referred to the applicant’s conduct as “unreasonable and incompetent”. That conclusion reflected the court’s disapproval of the applicant’s conduct throughout the proceedings and his misuse of court procedures. This was not merely a case where the applicant had failed to take opportunities to bring the proceedings to an earlier conclusion: the counterclaim had been improperly brought and insisted upon and it had been difficult to discern any objectively justifiable defence to the principal claim. 54. As to what was at stake, it was plain that the applicant had sought to engage in a sustained campaign to put in issue the propriety of Tods Murray’s conduct in previously representing Arakin. The importance of the allegations for Tods Murray, as well as the applicant, was not to be underestimated. 2. The Court’s assessment
55. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 56. The Court is satisfied that the subject-matter of the principal claim was straightforward: Tods Murray sued for payment of a debt. The counterclaim, on the other hand, was an issue of some complexity since it involved wide-ranging allegations of professional negligence and misconduct on the part of Tods Murray. The taxation proceedings were also complex: the disputed fees concerned three distinct sets of litigation, some of long duration, and the auditor was required to review the underlying litigation and assess whether fees had been justifiably charged. 57. As to what was at stake, while initially the company Arakin was a defender in an action for around GBP 300,000, it cannot be said that the proceedings concerned an issue of particularly significant importance to the applicant. 58. Moreover, it is clear from the material before the Court that the applicant’s conduct throughout had a critical impact on the progress of the case. The domestic courts characterised the allegations of fraud as reckless, highlighting that the applicant had no reasonable grounds for his asserted belief in the truth of the allegations. They characterised his counterclaim as an “abuse of process”. They also found the applicant’s behaviour in the other proceedings to be unreasonable and incompetent. Indeed, it was not the applicant who was seeking to resolve the proceedings speedily. It was the courts who sought to control the delay he caused by awarding punitive costs against him, which had to be paid before he could proceed with his other litigation. They also applied urgent procedures to the litigation. 59. The Court concludes that the applicant cannot rely on the periods during which his actions caused delay (see, mutatis mutandis, Vayiç v. Turkey, no. 18078/02, § 44, ECHR 2006‐VIII (extracts); and Uysal and Osal v. Turkey, no. 1206/03, § 30, 13 December 2007). Consequently, he cannot rely on any delay in the proceedings to determine his allegations of fraud. The Court notes in that connection that the fraud proceedings also interrupted the progress of the taxation proceedings for a period of three years. He cannot rely on any delay in the counter claim which must have also impacted on the entirety of the proceedings to determine the principal claim and counter claim. Nor can he rely on any delay in the costs proceedings, in light of his failure to participate fully in those proceedings despite efforts to secure his involvement. 60. However, the present litigation took on a scale and duration incommensurate with the simple nature of the underlying claim, lasting in all over eighteen years. In this context, the Court finds that although the applicant’s own actions generated the vast majority of the delay, there were certain stages of the proceedings which were protracted. That is the period of just over 1 year and 5 months, between the conclusion of the November 2004 hearing on the notes of objections and delivery of the subsequent judgment, and the period of around 7 months after the conclusion of the 2011 hearing on the facts, and the delivery of the relevant judgments. 61. The Court finds to this limited extent that the overall length of proceedings was excessive and failed to meet the reasonable-time requirement. 62. There has accordingly been a breach of Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
63. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
64. The applicant claimed GBP 1,982,992.49 plus interest in respect of pecuniary damage. He also made a claim for an unspecified sum in respect of non-pecuniary damage. 65. The Government contested the claims. 66. There is a strong, although rebuttable, presumption in favour of non‐pecuniary damage being occasioned by the excessive length of proceedings. However, there may also be situations where no such damage, or only minimal damage, has been ascertained – for instance where an applicant’s conduct has entirely or partly caused the procrastination or where the delay has been caused by circumstances independent from the authorities (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 204, ECHR 2006‐V; Proszak v. Poland, 16 December 1997, § 40, Reports of Judgments and Decisions 1997‐VIII, with further references; Rylski v. Poland, no. 24706/02, § 76, 4 July 2006; Boczoń v. Poland, no. 66079/01, § 51, 30 January 2007, and Piper v. the United Kingdom, no. 44547/10, §§ 56-69 and 73-74, 21 April 2015). 67. In this case it is only a very small part of the totality of the extraordinary length of the proceedings that has been found to be attributable to the respondent State and, thus, the source of a violation of the reasonable-time requirement under Article 6 § 1. On the contrary, it is the applicant himself who was largely responsible for preventing the proceedings being brought to a timely close. 68. Having regard to these particular circumstances, the Court does not consider that it is “necessary”, in the terms of Article 41 of the Convention, to afford the applicant any financial compensation by way of just satisfaction. The Court accordingly holds that the finding of a violation of Article 6 § 1 by reason of the delay in the proceedings attributable to the respondent State in itself constitutes adequate just satisfaction for the purposes of the Convention. B. Costs and expenses
69. The applicant also claimed GBP 15,000 for over one thousand hours of preparation time in respect of the proceedings before the Court. 70. The Government did not express an opinion on the matter. 71. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant, who was not represented by a lawyer, the sum of EUR 500 under this head. C. Default interest
72. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. Holds that the finding of a violation constitutes in itself sufficient just satisfaction under Article 41 of the Convention;
(a) that the respondent State is to pay the applicant, within three months EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 12 January 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Renata DegenerKristina PardalosDeputy RegistrarPresident