PROCEDURE

The case originated in an application (no. 19859/04) 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 Richard Anderson (“the applicant”), on 27 May 2004.

The United Kingdom Government (“the Government”) were represented by their Agent, Ms E. Willmott of the Foreign and Commonwealth Office.

On 15 January 2008 the Acting President of the Fourth Section to which the case had been allocated decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3).

THE FACTS

THE CIRCUMSTANCES OF THE CASE

1. The background to the applicant’s civil proceedings

The applicant was born in 1952 and lives in Glasgow. He is an advocate by profession. He owned a flat in a tenement building in Edinburgh. A number of the flats in the building were also owned by a commercial property company. In August 1988, when the proprietors of the building failed to carry out repairs mandated by the city council under statutory notices, the city council itself instructed works to be carried out (provided for by section 99 of the Civic Government (Scotland) Act 1982). It sought advice from a private architect, awarded the contract for the repairs to a private preservation company and apportioned the cost of the repairs among the various proprietors of the building. In October 1988, a fire occurred in the building which damaged part of the applicant’s flat and part of the flat below belonging to the commercial property company. Whilst the applicant was living elsewhere, the commercial property company instructed repair work. The applicant claimed that both sets of repairs constituted trespass to his property, that in each case the repairs were in fact inadequate and unsatisfactory, and that he was entitled to damages in the sum of GBP 100,000.

2. Proceedings in the Sheriff Court

When the applicant refused to pay the council for his share of the repair costs, the council brought proceedings in the Sheriff Court (the civil court of general jurisdiction). The applicant filed a counter-claim alleging that the council had instructed further repairs that had damaged his property. The applicant further sought referral of the whole case to the Court of Session (the highest civil court in Scotland). On 14 November 1994 the Sheriff Court upheld the council’s claim, rejected the applicant’s counter-claim and found that the case did not meet the criterion for referral to the Court of Session. On 11 May 1995, the applicant’s appeal to the Sheriff Principal was rejected. In 1998, the applicant then brought proceedings against the architect and chief executive of the preservation company for contempt of court in relation to an alleged failure to produce documents in the initial action. By judgments of 17 February 1999, the Sheriff Court rejected the applicant’s claims.

3. Proceedings in the Court of Session

On 26 March 1997, the applicant obtained a summons to bring proceedings against the commercial property company (“the first defenders”) and the city council (“the second defenders”) in the Outer House of the Court of Session, alleging that the statutory notices were invalid on grounds of fraud and illegal conspiracy. The second defenders were served on 15 April 1997. The first defenders were served on 14 May 1997. Defences were lodged by both defenders on 12 June 1997. Between that date and 7 January 1998 the record in the case (the parties’ written pleadings) was open and closed on a number of occasions at the request of the parties and with the leave of the court to allow for adjustment of their pleadings.

The applicant was then informed by the court that, since part of his claim challenged one of the orders made in the Sheriff Court proceedings, he was required to intimate a copy of the closed record to the relevant sheriff clerk. On 26 February 1998, the court gave him leave to do so. There was then further correspondence between the parties as to the future procedure in the case, which led the applicant to apply to the court first, for an order for disclosure of certain documents and second, for a warrant to direct the relevant sheriff clerk to transmit the record of the Sheriff Court proceedings to the Court of Session. On 15 July 1998, the applicant’s motion to this effect was adjourned to 22 September 1998. On the latter date, the motion was granted by way of interlocutor. This was done when the first defenders, despite their opposition to the motion, failed to appear. On 2 October 1998, the Lord Ordinary granted the first defenders leave to reclaim (appeal) to the Inner House against the interlocutor of 22 September 1998 in so far as it related to the disclosure of documents.

On 8 October 1998, the Inner House directed the parties to lodge their grounds of appeal within 28 days. On 4 November 1998, the first defenders lodged their grounds of appeal. It appears that, by oversight, the first defenders failed to apply for a hearing.

On 5 November 1999, the Inner House allowed the applicant to amend his pleadings and allowed the other parties to lodge answers within 21 days. On 7 December 1999, on the first defenders’ unopposed motion, the Inner Court appointed the case to the Summar Roll (the list of appeals and other business before it). On 3 February 2000, the Inner House allowed the second defenders’ answer to be received late. The interlocutory appeal was then to be heard in one day, 26 May 2000, but this date was vacated when, on 20 April 2000, the applicant explained to the court that he believed a two day hearing would be necessary. On 9 June 2000, the hearing was then fixed for 15 and 16 March 2001. On 7 February 2001, the applicant advised the court that a one-day hearing would be sufficient. The interlocutory appeal was duly heard on 15 March 2001 and, in a judgment given the same day, the Inner House allowed the first defenders’ reclaiming motion and remitted the case back to the Lord Ordinary in the Outer House.

On 20 March 2001, upon remittal to the Outer House, further directions were given for disclosure. On 14 September 2001, on the motion of the first defenders, the court appointed the case to the procedure roll for a debate (hearing) on pleas-in-law. After two dates for that debate were vacated, a two-day hearing was fixed for 20 and 21 June 2002. On 15 May 2002, the court allowed the applicant to lodge further supplementary arguments alleging a lack of candour in the defenders’ pleading but refused his motion for further disclosure. The case was heard on 21 June 2002. As a result of that hearing, the applicant’s action was dismissed on 4 September 2002 by the Outer House. In a written judgment, the Lord Ordinary found the applicant’s claims to be unfounded and unspecified.

The applicant appealed to the Inner House. The appeal was listed for 18 and 19 November 2003. On 4 November 2003, the Inner House refused the applicant’s motion for leave to amend his appeal. However, on 13 November, it allowed him to abandon his appeal against the second defenders and proceed only against the first defenders. The appeal was heard on 18 and 19 November 2003. The appeal was unanimously dismissed on 11 December 2003, the court finding that the applicant’s pleadings lacked specification. The applicant was found liable for the first defenders’ costs on 18 December 2003.

In June 2002 the applicant also sought to bring proceedings in the Court of Session against the solicitors acting for the council in the Sheriff Court proceedings. Unable to obtain a solicitor who would provide the necessary signature on the summons, the applicant petitioned the Court of Session for leave to proceed without the signature. Leave was refused on the papers on 25 July 2002. Complaints made in relation to the solicitors and advocates representing the council were dismissed by their respective professional bodies and then by the Scottish Legal Services Ombudsman on 13 November 2001 and 4 July 2003, respectively.