Equality of justice

Stephen Grosz examines some of the ways the Human Rights Act will affect Civil Procedure

'It would be unfortunate if case management decisions in this jurisdiction involved the need to refer to the learning of the European Court of Human Rights in order for them to be resolved.

In my judgment, cases such as this do not require any consideration of human rights issues, certainly issues under article 6 [the right to a fair trial]...

I hope that judges will be robust in resisting any attempt to introduce those arguments.' (Walker v Daniels, CA 2 May 2000).

Here, Lord Woolf MR is not instructing judges to ignore the Human Rights Act 1998, but simply observing that they have always been in the business of providing fair trials.

This may be obvious, but it will inform the judiciary's approach to human rights arguments.In general, there is no difference between the right to a fair trial and the overriding objective of the Civil Procedure Rules (CPR) of enabling the court to deal with cases 'justly' (part 1.1), and article 6 does no more than reflect the approach of the common law: Ebert v Venvil [1999] 3 WLR 670, CA.

Moreover, s.3 of the Act requires that the provisions of the CPR must be read and given effect in a manner which is compatible with Convention rights so far as it is possible to do so.

If this is impossible, the rules will be ultra vires unless the incompatibility is required by s.1 and schedule 1 to the Civil Procedure Act 1997: see mutatis mutandis General Mediterranean Holdings v Patel [2000] 1 WLR 272, QBD.

Further, as public authorities, courts must act in a manner compatible with Convention rights unless incompatible legislation requires otherwise (s.6 of the Act).

Article 6(1) of the Convention applies to the determination of both 'civil rights' and criminal charges.

The rest of the article relates to criminal cases only, although the autonomous notion of 'criminal charge' may include civil matters such as committal for contempt.

Article 6(1) expressly requires an 'independent and impartial' tribunal, a 'fair' hearing, a public hearing and public pronouncement of judgment, and a determination within a reasonable time.

The Strasbourg-based European Court of Human Rights has found the following rights to be inherent in article 6:l 'equality of arms' - each party must have a reasonable opportunity to present his case under conditions which do not place him at a substantial disadvantage vis--vis his opponent: De Haes & Gijsels v Belgium (1998) 25 EHRR 1.

This principle is echoed in r1.1(2)(a), the principle of ensuring the parties are on an equal footing;l access to a court: Golder v United Kingdom (1979-80) 1 EHRR 524.

This right is now familiar to English law: R v Lord Chancellor, ex parte Witham [1998] QB 575, DC.

It may be restricted by procedural rules, provided that they do not impair the 'very essence of the right': Ashingdane v United Kingdom (1985) 7 EHRR 528, and;l properly adversarial procedure.

This entails the right of a party to have the opportunity to present any evidence needed for his claims to succeed, and to see and comment on all material submitted with a view to influencing the court's decision: Mantovanelli v France (1997) 24 EHRR 370.

Again, this principle can be derived from r1.1(2)(a).

One immediate change is that Lord Woolf will probably be unable to sit in any appeal involving the interpretation and application of the CPR, at least where a party seeks to challenge their compliance with a Convention right.

He drafted them, and a party might legitimately fear that he would not be open to an argument that the CPR are incompatible with Convention rights.

Other changes may be less dramatic, and judges and lawyers will need to distinguish the good arguments from the bad.

Security for costsRule 3.1(5) empowers the court to order a party to pay money into court if that party has, without good reason, failed to comply with a rule, practice direction or protocol.

In exercising this power, the court will have to take account of the party's means to ensure it is not thereby imposing a condition with which he cannot comply, since such a bar on access could be disproportionate.

Public hearings and judgmentsMost case management decisions 'determine' civil rights, and the court's power to make them on its own initiative without hearing the parties (CPR 3.3.4) does not violate article 6.

Interlocutory orders can be made without a public hearing of the parties, and need not be pronounced in public.

Whether article 6(1) requires an oral hearing in others case is likely to depend on the importance of the proposed order in the context of the overall proceedings, the extent to which the parties can make effective submissions in other ways and the extent to which a party's conduct is directly in issue: Muyldermans v Belgium (1993) 15 EHRR 204.

CPR 39.2 now provides a general rule that hearings are to be in public, although this does not require the making of special arrangements for accommodating members of the public.

The exceptions in 39.2.3 are broadly in line with those in article 6(1) and must be interpreted compatibly with them.

In spite of its wording, article 6(1) does not always require public pronouncement of judgment.

Other methods of publicity, for instance depositing the judgment in a registry accessible to the public, may be acceptable.

Striking outArticle 6(1) does not prevent the striking out of claims in appropriate cases since it applies only to 'genuine and serious' disputes about civil rights and obligations.

However, a claim submitted to a tribunal for determination must be presumed to be genuine and serious unless there are indications to the contrary: Rolf Gustafson v Sweden (1998) 25 EHRR 623.

See also Jarvis v Hampshire County Council, The Times, November 23, 1999, CA.

But courts must be cautious where exercising the r3.4(2)(a) power would exclude an entire category of claims or confer blanket 'immunities' from civil liability: Fayed v United Kingdom (1994) 18 EHRR 393.

Interim ordersThe grant of interim remedies under CPR 25.1 may raise issues under article 8 (respect for private life and the home, including professional premises) or Protocol 1, article 1 (peaceful enjoyment of possessions).

In most cases interference, for example the grant of a search order, can be justified as necessary 'for the protection of the rights and freedoms of others' (article 8(2)), or as 'in the public interest' (Protocol 1, article 1).

Nevertheless the court must have regard to the principle of proportionality inherent in these articles when deciding whether the object of the order can be achieved by less restrictive means.

Section 12 of the Act imposes express restrictions in respect of orders which might affect the right to freedom of expression.

Where the respondent is neither present nor represented, no relief is to be granted unless the court is satisfied that all practicable steps have been taken to notify him, or that there are compelling reasons why he should not be notified.

Further, no relief is to be given to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.

DisclosureAn order for disclosure is prima facie an interference with private life and correspondence, although in most cases it will be justified by the requirements of a fair trial.

However, a party may be able to resist the disclosure of confidential information which would involve a breach of a third party's right to respect for private life: MS v Sweden (1999) 28 EHRR 313; to protect third party sources (Gaskin v United Kingdom (1990) 12 EHRR 36); or journalistic sources (Goodwin v United Kingdom (1996) 22 EHRR 123); or for the protection of that party's mental or physical health (R v Mid-Glamorgan Family Health Services, ex parte Martin [1995] 1 WLR 110, CA).

A public authority's failure to disclose, or to permit disclosure of, relevant documents which would assist a party to establish its case may breach article 6(1) (McGinley and Egan v United Kingdom (1999) 27 EHRR 1).

CPR 31.12, relating to specific disclosure, should be applied accordingly.

This may be of particular importance in public law proceedings, where disclosure has traditionally been more restrictive.

ExpertsArticle 6(1) bestows no right to call expert evidence, unless it is necessary to ensure the fairness of the proceedings.

The appointment of a single expert is not contrary to article 6(1), although the right to an adversarial procedure may require the parties to be actively involved in the process by which the expert prepares his report, including attending interviews and examining the documents on which the report is based: Mantovanelli v France (1997) 24 EHRR 370.

It is not contrary to article 6(1) to allow a party to put additional questions to a joint expert following completion of her report: Daniels v Walker, The Times, May 17 2000, CA.

Proceedings involving the Act and the ConventionClaims alleging that a public authority has breached a Convention right may be brought in 'such court or tribunal as may be determined in accordance with rules': (HRA s.7(2)).

Those rules now appear in the 18th update to the CPR, courtesy of the Civil Procedure (Amendment No.4) Rules 2000 (SI No.

2092 (L.16)), which come into force on 2 October.

Proceedings may be brought in any court, except that a claim for damages in respect of a judicial act must start in the High Court.

A declaration of incompatibility may be made only by the High Court or above, and a case may be transferred from a county court to the High Court 'where there is a real prospect that a declaration of incompatibility will be made' (para 7 of practice direction to CPR part 30).

Stephen Grosz is a partner with London law firm Bindman & Partners