PROCEDURE

The case originated in an application (no. 39197/98) against the United Kingdom of Great Britain and Northern Ireland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a United Kingdom national, Patrick Grattan Foley (“the applicant”), on 12 August 1997.

The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley, Foreign and Commonwealth Office.

The applicant alleged, in particular, that civil proceedings brought by him were not determined within a reasonable time.

The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

The application was originally allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court), which, on 11 September 2001, declared the application partially admissible and decided to dispense with a hearing (Rule 59 § 2 in fine).

On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1924 and lives in Stratford-on-Avon.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant was an inventor and entered into an agreement with Ferranti plc whereby the latter would have exclusive rights to develop, design, manufacture and sell gaming machines based on the applicant’s ideas. The applicant also set up a company (“Transworld”) which entered into an agreement with Ferranti Instrumentation Limited relating to the marketing of the machines. The venture was not a commercial success and in June 1982 the agreements were repudiated by the respective Ferranti companies.

On 4 July 1984 the applicant issued a writ in his own name and in that of Transworld (together, “the plaintiffs”) against the two Ferranti companies (together, “the defendants”). It was served on 5 July 1984. The defendants were granted one extension of time for service of the Defence with the plaintiffs’ consent and then applied to the court for a further extension. On 3 October 1984, before that application could be heard, judgment in default of defence was entered for the plaintiffs. That judgment was set aside on 12 December 1984 and the Defence was served on 20 December 1984. The defendants served a request for Further and Better Particulars of the plaintiffs’ Statement of Claim on the same date. The plaintiffs failed to reply within the fourteen-day deadline, leading the defendants to apply to the court which, on 21 March 1985, ordered that the plaintiffs reply within 42 days.

The defendants applied for security for their costs, and the court granted the application on 26 September 1985 by ordering the plaintiffs to pay a sum reflecting the defendants’ likely costs up until the date for exchange of evidence. The proceedings were stayed until the security was paid.

On 3 October 1985 the plaintiffs appealed against the order. A hearing was listed for later that month but was postponed, according to the applicant due to a series of errors by the court registry.

The appeal was dismissed on 31 January 1986 and the plaintiffs paid the security on 28 February 1986.

On 2 August 1985 the plaintiffs served a request for Further and Better Particulars of the Defence. On 8 July 1986, once the stay imposed in September 1985 had been lifted by payment of the security, an order was made by consent of the parties.

On 21 May 1987 the defendants applied for an order that the plaintiffs fulfil their discovery obligations by serving a list of documents. The deadline for service of the list had expired on 3 January 1985. The order was made on 30 June 1987.

The plaintiffs’ solicitors filed a Notice of Intention to Proceed on 5 January 1989 as required by the rules of court since no steps had been taken in the prosecution of the claim for more than a year. On 10 February 1989 the plaintiffs served a Summons for Directions, the deadline for which had expired on 2 February 1985.

On 27 February 1989 the plaintiffs made an application for specific discovery and the defendants made a further application for security for costs. These, together with the Summons for Directions, came before the District Registrar on 7 April 1989 but were adjourned. According to the applicant, this adjournment was due to failure by the court registry properly to notify the defendants’ counsel of the hearing date. The Government state that it was due to the parties not having ensured that sufficient court time would be available. A further hearing was proposed for 1 September 1989 but was also adjourned. At a hearing on 25 October 1989 the District Registrar decided to adjourn in order to refer the matters before him to the High Court, which held hearings on 15, 17 and 24 January 1990. The application for security for costs was dismissed.

On 12 February 1990 an Order for Directions was made by consent of all the parties, who indicated that they would not be prepared for trial before 1 October 1990. The trial was listed for 4 June 1991.

The defendants made a payment into court of GBP 50,000 on 1 November 1990, and a second payment of GBP 50,000 on 10 April 1991. These payments failed to procure a settlement and the trial began on schedule, but had to be adjourned on 18 June 1991 as the applicant was ill. It was recommenced on 29 April 1992 and ran until 11 June 1992. On 2 October 1992, judgment was given in the plaintiffs’ favour. However, the damages award was limited to GBP 5 to each plaintiff since they could not establish that the venture would have been a commercial success had it proceeded.

The plaintiffs appealed in December 1992. The plaintiffs were required, inter alia, to lodge a transcript of the material evidence given at trial by 1 March 1993, but failed to do so until 28 February 1994 due to delays in production of the transcripts by a company of court reporters.

In the meantime, the defendants applied for security for costs for the appeal. A hearing on the application took place on 29 March 1993. Judgment on the application was reserved, but in the event no decision was required since Ferranti plc were put into receivership in December 1993. The receivers took over conduct of Ferranti plc’s role in the case thereafter. Ferranti Instrumentation Limited had stopped trading and ceased to exist altogether in November 1996

On 21 March 1994, the Court of Appeal allocated a hearing date of 5 or 6 December 1994 for the appeal. However, in light of the uncertainties associated with Ferranti’s receivership, the appeal was stood out of the list by consent until 31 March 1995.

After that date the Civil Appeals Office (“CAO”) made a number of attempts to confirm whether or not the plaintiffs would be pursuing the appeal. On 18 June 1996 the applicant informed the CAO that he would be proceeding in person. On 2 October 1996 the applicant telephoned the CAO to enquire about hearing dates but was told that his files could not be found at that time. His request for a hearing date was passed to the Court of Appeal’s Registrar on 14 November 1996 and on 6 March 1997 the Registrar directed that the CAO should liaise with the defendants to ascertain their status, which was confirmed in a letter from the defendants’ solicitors received on 25 March 1997. A letter from the CAO to the applicant of 1 May 1998 indicated that the CAO had learned of the defendants’ status separately some time during 1995 or 1996.

On 8 April 1998 the CAO wrote to the applicant with details of the files which it had located. On 17 June 1998 the Registrar directed that the case be listed as soon as possible after the summer vacation. In August 1998 the CAO learnt that Ferranti Instrumentation Limited had been struck off the register of companies.

On 21 October 1998 the Customer Service Unit of the Court Service wrote to the applicant acknowledging that there had been significant delay in listing the appeal (due to matters outside the authorities’ control) and that the applicant had not been properly kept informed about progress on the case and had had to chase the court unnecessarily for information. The applicant was offered an ex gratia payment to cover his wasted costs in connection with the Court Service’s admitted failures.

The Court of Appeal dismissed the plaintiffs’ appeal on 13 January 1999, noting in doing so that even if the applicant had won he would not have benefited financially given the financial state of the one remaining defendant (Ferranti plc). On 19 April 1999 the Court of Appeal dismissed the plaintiffs’ request for leave to appeal to the House of Lords.