Strasbourg and why you must give reasons on domestic appeals

6 October 2014 by David Hart QC

MO201110701289983ARHansen v. Norway, ECtHR, 2 October, read judgment

In any system of appeals, there is always a tension between giving everyone a fair hearing and concentrating on the appeals which do stand a reasonable prospect of success. The UK, like many countries, has introduced some filters on civil appeals in relatively recent times, enabling unmeritorious appeals to be dismissed at the threshold. In doing so, it gives short (sometimes very short) reasons for refusing permission.

You might have thought that this was a classic area where Strasbourg would be wary about intervening in domestic practice and striking the balance between speed and fairness. Yet the Court was persuaded that the Norwegians got the balance wrong, and found a breach of Article 6(1). We therefore need to read it carefully to see whether the same could be said about our system.

A Norwegian saga

Mr Hroar Hansen was involved in long-running litigation with a company (Ekheim Invest) to whom his ex-wife (Mrs B) had sold a property in 2005. A previous claim by him against Mrs B in respect of the property had failed in 2001. Undeterred, he said in the claim against the company that, despite the sale in 2005, the property was still half his, and the purchase took subject to his rights. In 2008, the Fredrikstad City Court was unpersuaded; Mrs B had had her sole interest in the property confirmed by the 2001 judgment, and hence she could pass full title to Ekheim Invest.

But Mr Hansen did not stop there. He appealed from the City Court to the Borgarting High Court (my pic is an action shot taken there). He complained about the way the City Court had conducted the case, truncating the hearing length from 3 days to 5 hours, and then showing a lack of interest in Mr H’s witnesses.

The High Court refused to admit his appeal.

Its reasons were concise, to say the least:

The High Court finds it clear that the appeal will not succeed, and that its admission should therefore be refused pursuant to Article 29-13(2) of the Code of Civil Procedure.”

That Article was in similar terms; said appeals could be refused to be admitted if the Court “finds it clear that the appeal will not succeed.”

In September 2008, the Supreme Court rejected a further attempt to appeal. So end of story domestically, and in April 2009 Mr H started his long weary way to Strasbourg.

At which point things started moving Mr Hansen’s way. In a judgment in September 2009, in proceedings affecting other parties, the Supreme Court decided that the civil courts were duty-bound to give reasons, and subsequently the civil procedure rules were changed to reflect this.

But this still left Mr Hansen high and dry, because his case had been finally determined.

Strasbourg

There was an interesting debate as to whether Article 6(1) was engaged at all. The Government said Mr H had his Art.6-compliant run before the City Court, and that he had no Art.6(1) right in terms of a review of that adverse decision. The Court said that the underlying claim was plainly a dispute over a civil right (his alleged share in the property), and the “prevailing approach” was that Art. 6(1) was also applicable to leave to appeal proceedings: [55].

Whilst the Convention does not compel member states to set up courts of appeal or of cassation, if they did so, then they were duty bound to ensure that parties enjoyed the fundamental guarantees under Article 6(1).   But an appeal does not have to be a complete re-run:

73….account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein….. In order to determine whether the requirements of fairness in Article 6 were met in the present case, it is necessary to consider matters such as the nature of the filtering procedure and its significance in the context of the civil proceedings as a whole, the scope of the powers of the High Court, and the manner in which the applicant’s interests were actually presented and protected before the High Court.

The Court then turned to the case in hand. It rejected the criticisms of the City Court’s conduct of the hearing, and indeed of the adequacy of the reasons given for dismissing the claim.

It then noted that the High Court’s reason was no more than a paraphrase of the then current rule of procedure. At [80]-[81], it pointed out that this sort of conclusory reasoning had not given rise to Art. 6(1) breaches in previous Strasbourg decisions about refusing leave to appeal, whether at second instance or third instance. The nature of the issue in such cases was whether there were or were not reasonable prospects of success. So no breach so far.

Then the finding of breach

82.  However, the Court observes that the High Court’s jurisdiction was not limited to questions of law and procedure but extended also to questions of fact. In the case under consideration, the applicant appealed to the High Court against the City Court’s examination of his pleas on points of law and its sudden decision to drastically shorten the hearing from three days to five hours thereby substantially reducing his opportunity to adduce witness- and documentary evidence regarding certain issues of fact….. The Court is not convinced in the concrete circumstances that the High Court’s reasoning in its decision of 12 June 2008 did address the essence of the issue to be decided by it….. in a manner that adequately reflected its role at the relevant procedural stage as an appellate court entrusted with full jurisdiction and that it did so with due regard to the applicant’s interests….

Similarly, the reasons provided did not make it possible for him to exercise his further right of appeal to the Supreme Court, with the Art.6(1) right attaching thereto.

When it came to just satisfaction, the applicant got short shrift, as so commonly in Article 6 cases. The Court was not going to speculate in whether the outcome might have been different, but though being prepared to accept that Mr H might have suffered some anguish and distress, found that the finding of a violation was itself adequate just satisfaction.

Comment

You know you are going to get a bit of a puzzler, when you see the Court talking about “concrete circumstances”. Given that the filtering system seems to have been passed muster when it came to an assessment of the underlying merits, what were those circumstances which made the difference?  As per [82], these seemed to be Mr H’s complaints about the conduct of the proceedings below. Strasbourg had earlier decided that those complaints did not give rise to an independent breach of Article 6(1). But the Court seems to have thought that these points should have been addressed by the High Court when refusing to admit the appeal, and hence to that extent only, there was a breach of the duty to give reasons.

As often, you get a little more from the (Norwegian) dissent than from the majority judgment. Judge Mose observed in [3] that the decision to cut the hearing before the City Court down to size was taken precisely because of the Court’s view of the effect of the original judgment between Mr H and Mrs B in 2001; most of his witnesses had given evidence in those proceedings. He disagreed with the suggestion that there was a distinction to be drawn between factual and legal issues: [12]. And he parted with a warning that the majority’s reasoning might cut across legitimate differences between the practices in member states.

The dissenter’s parting shot is salutary. Hansen will undoubtedly be used to argue that a domestic refusal of leave must go further than a paraphrase of the rules. But the fact/law distinction is a treacherous one to seek to draw in practice, if the approach to the facts was taken precisely because of the lower courts’ view of the law.

Certainly one to read. But my hunch is that sooner or later domestic courts will shunt the decision off into a legal siding, and I do not think it is going to terrify appellate judges, who usually say rather more than the statutory formula anyway when refusing permission to appeal.

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