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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Eastaway v Secretary of State for Trade & Industry  EWCA Civ 425 (10 May 2007)
Cite as:  EWCA Civ 425
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(CHANCERY DIVISION) MR JUSTICE LIGHTMAN
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIX
LADY JUSTICE ARDEN
|SECRETARY OF STATE FOR TRADE & INDUSTRY Respondent|
WordWave International Ltd
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Malcolm Davis White QC & Jason Coppel (instructed by Treasury Solicitors) for the Respondent
Hearing dates : 27-28 March 2007
Crown Copyright ©
Lady Justice Arden :
The prejudice point
Company Directors Disqualification Act 1986
European Convention on Human Rights
"Right to a fair trial
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…"
The Court may receive applications from any person, non- governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting parties of the rights set forth in this Convention… "
1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rule of international law, and within a period of six months from the date on which the final decision was taken.
2. The Court shall not deal with any individual application submitted under Article 34 that
(b) is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information…"
If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the Contracting Party concerned allows only partial reparation to be made, the Court, shall, if necessary, afford just satisfaction to the injured party. "
Human Rights Act 1998
"2. (1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any –
(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights,…
whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen."
"before the end of –
(a) the period of one year beginning with the date on which the act complained of took place; or
(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,
but that is subject to any rule imposing a stricter time limit in relation to the procedure in question" (sec 7(5)).
"Paragraph (b) of subsection (1) of section 7 applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that subsection does not apply to an act taking place before the coming into force of that section."
The issues on this appeal
(1) The effect of the finding of a violation:
Before the judge, Mr Collings argued that, having established a violation of art 6 in the Strasbourg court, it must follow that there could be no fair trial of the proceedings. The judge held that the Strasbourg court had decided Mr Eastaway's case upon the basis, and only on the basis, that it was a length of proceedings case. Accordingly the judge found that the declaration sought by Mr Eastaway, namely a declaration that the disqualification undertaking should not have been offered by Mr Eastaway or accepted by the Secretary of State, was not relief required to give effect to the decision of the Strasbourg court. Mr Eastaway seeks that declaration as relief on this appeal in the alternative to an order that the disqualification undertaking should be set aside.
I consider that the judge's conclusion was correct for the reasons given below.
(2) The decision of the Vice Chancellor:
Mr Collings further submitted to the judge that the Vice Chancellor should have struck the proceedings out before Mr Eastaway gave his undertaking. The judge rejected that argument. The judge also refused to accept that Mr Eastaway had submitted to the Vice Chancellor that a fair trial was not possible. This submission was inconsistent with what the Vice Chancellor said in his judgment and Mr Eastaway's undertaking to Hart J on 13 September 1999 to sign an agreed statement of the facts and enter into a Carecraft disposal. This was a consent order and there were no special circumstances justifying the setting aside of that order. The judge also thought that there were insuperable difficulties of res judicata in the submission that the Vice Chancellor ought to have dismissed the proceedings on the basis that a fair trial was no longer possible.
Again, I consider that the judge was correct to conclude that it was not argued before the Vice Chancellor that the proceedings should be struck out on the grounds that a fair trial was not possible for the reasons he gave. In my judgment also it is not seriously arguable on the material in this case that the proceedings would have been struck out on that basis in any event so that questions of res judicata or the effect of a consent order do not arise.
(3) The waiver point:
The issue was whether Mr Eastaway had lost his right to complain about giving the disqualification undertaking when he gave the undertaking to Hart J to sign the agreed statement of facts and to enter into a Carecraft disposal in events that subsequently happened or alternatively when he actually gave that undertaking. The judge rejected the argument that there had been any objectionable constraint placed on Mr Eastaway to make the offer to give a disqualification undertaking. Accordingly, the Secretary of State did not violate Mr Eastaway's art 6 rights by accepting the disqualification undertaking.
On this issue also I agree with the judge for the reasons that I set out below.
(4) The victim point:
In the judge's judgment, Mr Eastaway ceased to be a "victim" of the breach for purposes of the HRA once he was awarded satisfaction by the Strasbourg court. He was no longer able to bring proceedings or to rely on the breach of art 6 in the English courts.
On this issue I do not disagree with the judge in the result and my reasons are set out below. It is not necessary to decide the question whether the application is out of time under sec 7(5) of the Human Rights Act 1998 or whether it is also outside the HRA because of the restriction of the retrospective effect in sec 22(4) of that Act.
(5) The prejudice point:
The judge did not consider that the disqualification undertaking should be set aside because of the adverse effect that it had on Mr Eastaway's professional standing.
I agree that the detriment suffered by Mr Eastaway as a result of having given the disqualification undertaking would not justify setting it aside at this point in time. Moreover, substantial prejudice was not the basis of the application to the Vice Chancellor and thus it could not be said that the Vice Chancellor ought to have struck the proceedings out on that ground.
(6) Other bases of jurisdiction for the application:
The judge held that the application could not be brought under the general liberty to apply contained in the order for a stay of the proceedings dated 25 May 2001 on the basis that that liberty could not be used to review the whole order as opposed to applying to the court to enforce the order and to make any adjustments to it necessary as a result of a change in circumstances. The judge also held that the decision of the Strasbourg court did not impugn the proceedings which had culminated in the disqualification undertaking which had run its course. The judge considered whether there were other bases for the jurisdiction which Mr Eastaway sought to invoke, including Insolvency Rule 7.47(1).
In my judgment, in the light of my other conclusions in this case it is unnecessary to decide whether any other basis of jurisdiction was available. However, the judge was not correct to proceed on the basis that Insolvency Rule 7.47(1) might apply in this case if there had been special circumstances. As pointed out on this appeal by the Secretary of State that applies only to orders of the court, whereas the disqualification undertaking which Mr Eastaway seeks to set aside did not form part of any order of the court.
Reasons for my conclusions summarised above
(1) The effect of a finding of a violation
"24. I would respectfully endorse what was said on this point by Lord Bingham in R (Ullah) v Special Adjudicator  2 AC 323, 350, para 20:
"In determining the present question, the House is required by section 2(1) of the Human Rights Act 1998 to take into account any relevant Strasbourg case law. While such case law is not strictly binding, it has been held that courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court: R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions  2 AC 295, para 26. This reflects the fact that the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court. From this it follows that a national court subject to a duty such as that imposed by section 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law. It is indeed unlawful under section 6 of the HRA for a public authority, including a court, to act in a way which is incompatible with a Convention right. It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less."
25. Our task, then, is to analyse the jurisprudence of the Strasbourg court and, having done so and identified its limits, to apply it to the facts of this case. We must not allow sympathy for the appellant to divert us from this task. It is not for us to search for a solution to the problem which is not to be found in the Strasbourg case law. It is for the Strasbourg court, not for us, to decide whether its case law is out of touch with modern conditions and to determine what further extensions, if any, are needed to the rights guaranteed by the Convention. We must take its case law as we find it, not as we would like it to be."
"…In all the circumstances, the court does not consider that the proceedings against the applicant were pursued with the diligence required by art 6(1). There has accordingly been a violation of that provision, in that the applicant's "civil rights and obligations" were not determined "within a reasonable time".
"12. Fourthly, it is clearly established that article 6 (1), in its application to the determination of civil rights and obligations and of criminal charges, creates rights which although related are separate and distinct… Thus there is a right to a fair and public hearing; the right to a hearing within a reasonable time; a right to a hearing by an independent and impartial tribunal established by law; and (less often referred to) a right to the public pronouncement of judgment. It does not follow that the consequences of the breach, or a threatened or prospective breach, of each of these rights is necessarily the same." "
(2) The decision of the Vice Chancellor
"It is also hard to see how such delay cannot have an adverse effect on the quality of justice and the conduct of the trial: see Re Manlon Trading Limited  Ch. 136, a case in which disqualification proceedings were struck out for want of prosecution, and Shtun v Zajelska  1 WLR 1270, a case dealing with prejudice through fading memories."
(3) The waiver point
"The answer to this argument is that the word "waiver" in the Vice Chancellor's judgment is used in a loose non- technical sense, meaning only that Mr Eastaway had entered into a binding agreement with the Secretary of Stake for the trial to proceed as provided in the Carecraft undertaking and that this agreement was totally inconsistent with the relief claimed by the strike out application for delay in breach of art 6. That that is what the Vice Chancellor meant is made plain in his statement in para.  of his judgment of the issues before him…and in particular (as the second issue) whether Mr Eastaway was precluded by the Carecraft undertaking from obtaining the relief that he was seeking. The Vice Chancellor's decision in this respect is plainly correct." (judgment, para.42)
"31. In the most litigious situations, the expression "waiver" is used to describe a voluntary, full and unequivocal election by a party not to claim a right or raise an objection which it is open to that party to claim or raise. In the context of entitlement to a fair hearing by an independent and impartial tribunal, such is in my opinion the meaning to be given to that expression. That the waiver must be voluntary is shown by Deweer v Belgium (1980) 2 EHRR 439, where the applicant's failure to insist on his right to a fair trial was held not to amount to a valid waiver because it was tainted by constraint: p465, para. 54. in Pfeifer and Plankl v Austria 14 EHRR 692. There was held to be no waiver where a layman had not been in a position to appreciate completely the implication of a question he had been asked: p713, para. 38. In any event, it cannot meaningfully be said that the party has voluntarily elected not to claim a right or raise an objection if he is unaware that it is open to him to make the claim or raise the objection. It is apparent from passages already cited from cases decided by the European Court of Human Rights that a waiver, to be effective, must be unequivocal, which I take to mean clear and unqualified. … "
(4) The victim point
(5) The prejudice point
(6) Other bases of jurisdiction
Summary of the position
i) Mr Eastaway did not, as part of his application to the Vice Chancellor, contend that the disqualification proceedings against him should be dismissed on the grounds that a fair trial would be impossible, and neither the Vice Chancellor nor the Strasbourg court adjudicated on that contention.
ii) An application to dismiss the disqualification proceedings on the grounds that a fair trial would have been impossible in 2001 cannot now be made and in any event it would not be seriously arguable.
iii) It follows that no declaration can be made by the court that the disqualification undertaking should not have been offered by Mr Eastaway or accepted by the Secretary of State.
iv) In any event, Mr Eastaway waived his right to bring an application for the dismissal of the disqualification proceedings on the grounds that a fair trial was impossible when he gave an undertaking to Hart J that he would sign the agreed statement of facts and enter into the Carecraft procedure if his judicial review proceedings failed. His judicial review proceedings did not include a claim that as a result of the delay there could not now be a fair trial. Nor was any such application made to the Vice Chancellor.
v) Mr Eastaway was ... and is) not a "victim" for the purposes of sec 7(7) of the HRA in respect of any such claim.
vi) There is no sufficiently arguable claim that the disqualification proceedings should have been dismissed on the grounds that there was prejudice to Mr Eastaway as a result of the delay.
vii) Insolvency Rule 7.47(1) did not give the court jurisdiction to discharge the disqualification undertaking as that Rule applies only to orders of the court.