C. SOHBY v the United Kingdom - 34108/07 [2010] ECHR 248 (19 February 2010)

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Application no. 34108/07
by C. SOHBY
against the United Kingdom
lodged on 26 July 2007

The applicant, Mrs C. Sohby, is a British national who was born on 26 June 1956 and lives in London.

The facts of the case, as submitted by the applicant and set out in the documents provided to the Court, may be summarised as follows.

The case relates to a domestic civil claim brought by the applicant in respect of an incident that occurred in July 1995, in which the applicant claims that she was unlawfully detained and assaulted by officers of the Metropolitan Police. In June 2001 the applicant was granted legal aid to pursue a claim for damages in respect of these allegations. She initially was represented by Moss & Co Solicitors.

Her claim was issued at Central London County Court on 26 July 2001. Her Particulars of Claim were filed and served on 20 November 2001. On 15 January 2002 a defence was served. It is not clear whether this defence was ever filed with the court. No allocation questionnaires were issued by the court to the parties and no directions were set.

The parties agreed their own directions and began to progress matters; documents were disclosed and witness statements exchanged. Nothing was heard from the court. In December 2002, the applicant disinstructed Moss & Co and, in January 2003, she instructed Coninghams Solicitors. Transfer of legal aid funding was confirmed on 26 February 2003.

On 22 August 2003, more than two years after the claim was issued, the applicant's solicitors wrote to the court seeking to progress the case. Thereafter, the court wrote to the defendants asking them to file a defence and a case management conference (“CMC”) was listed for 5 December 2003. At the CMC, the applicant was refused permission to rely on her own expert medical evidence and directions were given for the instruction of a single joint expert. At some stage after the CMC, a trial was listed for 5 to 7 July 2004.

On 22 January 2004 the applicant made a renewed application to rely on her own medical evidence and sought leave to amend her Particulars of Claim. A hearing of this application was listed for 12 March 2004. In February 2004, the applicant disinstructed Coninghams. She wrote to the court on 7 March 2004 stating that she would not be able to attend the hearing of her application as a litigant in person. The applicant states that on 12 March 2004, her application was dismissed in her absence, although no order in respect of this hearing has been submitted to the Court. On 29 April 2004 the applicant applied to have her application of 22 January 2004 re considered and/or for a stay of the order of 12 March 2004. On 29 April 2004 she also applied for the trial date of 5 July 2004 to be vacated on the basis that she had to instruct new solicitors who required time to prepare her case and on the basis that she was not medically fit to represent herself. It appears that this application was listed for 27 May 2004. At some time in May 2004 the applicant instructed new solicitors, Kaim Todner, who applied for a transfer of the applicant's legal aid certificate. On 24 May 2004 the applicant applied to adjourn the hearing listed for 27 May 2004 on the ground that funding had not yet been transferred to Kaim Todner and that she was unable to represent herself. On 8 May 2004, with neither party in attendance, the court ordered that the application be adjourned generally with permission to apply to restore. The applicant states that this order was confusing and that she thought it meant that the trial date had been vacated.

On 2 July 2004 the applicant made a further application to vacate the trial date to allow her new solicitors time to prepare the case. It does not appear that there was a separate hearing of this application. The applicant did not attend the trial on 5 July 2004. She states that this was due to reasons of ill health. The trial judge ordered the applicant to attend the following day. The applicant claims that she did not receive notice of this order, although it appears that the trial judge was satisfied that it had been communicated to her by the court clerk. The applicant did not attend court on 6 July 2004 and her claim was duly dismissed.

In September 2004 the applicant disinstructed Kim Tandor. On 21 October 2004 she applied in person to have her claim reinstated, arguing that the trial should have been adjourned and that she had good reasons for not attending. This application was heard on 13 April 2005. The applicant was represented at the hearing of this application by counsel on a direct access basis. The judge held that she did have good reason for failing to attend the trial and re-instated her claim. A CMC was listed for 26 May 2005. However, the defendant did not attend the CMC and the hearing was adjourned.

In around May 2005 the applicant states that she re-instructed Coninghams. It appears that Coninghams applied for a new legal aid certificate. However, this was refused. The applicant states that her application was “bungled” and that the Legal Service Commission (“LSC”) “lost or mysteriously returned” her papers. The applicant has submitted two letters to this Court which she received from the LSC. The first, dated 28 September 2005, states that “you have provided insufficient information/documentation to enable the application to be fully considered... you may apply for review by 12 October 2005”. The second, dated 26 October 2005, states that the “file has been closed... because the application was rejected more than 90 days ago as it was not properly completed and we have not received the correctly completed application... If public funding is still required, a fresh application must be made”. There is no evidence that the applicant did submit any fresh application or seek any review of the LSC's decision. Coninghams offered to represent the applicant on a private client basis. However, the applicant states that she was unable to afford the fees.

On 9 September 2005, a CMC was held at which no order was made as to medical evidence and a trial window was set for between 16 January 2006 and 24 February 2006. On 2 November 2005, the trial was listed for 13 February 2006. However, on the defendant's application, this trial date was vacated. The trial was re-listed for 13 March 2006.

The applicant claims that she was not informed of this new trial date until 10 February 2006 when she applied to have it vacated on grounds that her solicitor had gone on holiday without notifying her and that she could not represent herself on health grounds. The application to vacate was heard and rejected on 10 March 2006. It appears that the defendants relied at this hearing on a letter from Coninghams, dated 9 March 2006, which stated that the file handler had gone away for just one week between 23 January and 31 January and that, in any event, Coninghams were no longer instructed by the applicant.

The applicant instructed counsel on a direct access basis, to renew, on the first day of the trial, her application to vacate. Counsel was not instructed in relation to the trial itself for which he had no time to prepare. The applicant did not attend the trial on 13 March 2006, again citing health reasons. The judge refused the renewed application to vacate and dismissed the applicant's claim in its entirety. He ordered that any application to set aside his judgment be made ex parte in the first instance.

On 22 March 2006, the applicant applied to have the judgment set aside. Her application was heard on 9 August 2006 when she was granted leave to apply inter partes. The inter partes hearing was listed for 22 September 2006. However, this listing was vacated on the defendant's application. A new hearing date was set for 14 December 2006. This hearing date was also vacated at the defendant's request. The application finally was heard on 31 January 2007. The applicant was again represented by counsel on a direct access basis. The judge held that the applicant did not have good reason for failing to attend the 13 March 2006 trial and her application was dismissed.

On 17 April 2007, the applicant filed an appeal notice out of time. In that notice she claimed that an earlier notice of appeal had been filed in time on an old form, although no evidence of an application on this old form has been provided to the Court. On 14 June 2007 the Court of Appeal refused permission to appeal, holding that no reasons had been given to explain the delay in issuing the appeal notice and that, in any event, the proposed appeal had no prospects of success.

The applicant complains that the length of the proceedings in this case breached the “reasonable time” requirement under Article 6 § 1 of the Convention.

She also complains under Article 6 that the court's dismissal of her claim, in her absence, without oral evidence, amounted to the denial of a fair public trial; that the court's refusal to allow her to rely on her own expert evidence and its refusal to allow amendment of the claim was unreasonable and unfair; and that the denial of legal aid in the later stages of proceedings amounted to denial of effective access to the court.

She makes further complaints under Articles 3, 5 and 14 alleging that her treatment by the police in 1995, which formed the basis of her civil claim, amounted to inhuman and degrading treatment and/or unlawful deprivation of liberty and/or discrimination.

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You are here: BAILII >> Databases >> European Court of Human Rights >> C. SOHBY v the United Kingdom - 34108/07 [2010] ECHR 248 (19 February 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/248.html Cite as: [2010] ECHR 248

European Court of Human Rights