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FIRST
SECTION
CASE OF
PROCEDO CAPITAL CORPORATION v. NORWAY
(Application
no. 3338/05)
JUDGMENT
STRASBOURG
24 September 2009
FINAL
01/03/2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Procedo Capital Corporation v. Norway,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Khanlar
Hajiyev,
Sverre
Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 3 September 2009,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 3338/05) against the Kingdom
of Norway lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a limited liability company Procedo Capital
Corporation (“the applicant company”), registered in
Panama, on 13 January 2005.
- The
applicant company was represented by Mr M. Elvinger, a lawyer
practising in Luxembourg. The Norwegian Government (“the
Government”) were represented first by Mrs E. Holmedal then by
Mrs Fanny Platou Amble, both Attorneys at the Attorney General's
Office (Civil Affairs), as their Agent.
- The
applicant company complained under Article 6 § 1 of the
Convention that due to the participation of a certain lay member in
the first part of the oral hearing before the High Court and the
refusal of the latter to discontinue the proceedings after his
disqualification and refer the case to a differently composed High
Court, there had been a violation of the right to a fair hearing by
an impartial tribunal.
- By
a decision of 29 April 2008, the Court declared the application
partly admissible.
- The
applicant company and the Government each filed further written
observations (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Factual background to the case
- The
present application has its background in a civil dispute over
securities dealings between Procedo Capital Corporation (hereinafter
referred to as “Procedo”) and a Norwegian securities
broker, Sundal Collier, based in Norway. In October 1998 the latter
brought proceedings against the former before the Oslo City Court
(tingrett), requesting an order that the applicant company pay
an amount of 18,481,808 Norwegian kroner (NOK) plus interest in
respect of shares Sundal Collier had purchased for the applicant
company. The applicant company, which received the summons in
December 1999, contested the action and brought a counter-action
requesting an order that Sundal Collier pay compensation, the amount
of which was to be determined in subsequent proceedings, with regard
to losses sustained by the applicant company due to information and
advice received from Sundal Collier.
- By
a judgment of 4 January 2002, the City Court ordered the applicant
company to pay Sundal Collier NOK 18,131,808 plus interest and
dismissed any claim against the latter. Each party was to bear its
own costs.
- The
applicant company then lodged an appeal with the Borgarting High
Court (lagmannsrett).
B. Preparatory High Court decision regarding disjoinder
of proceedings
- In
its appeal to the High Court the applicant company requested that, as
had been done before the City Court, adjudication in the
counter-action, notably concerning the amount of the applicant
company's counter-claim and related causation issues, be disjoined in
accordance with Article 151 § 2 of the Code of Civil Procedure.
Pursuant to that provision, separate proceedings were contingent on
the other party's agreement. After a preparatory meeting and
exchanges of written pleadings on the issue, Mr Justice Minsaas,
acting as the rapporteur judge of the High Court, decided on 18
December 2002 not to disjoin either the proceedings or the
adjudication, finding insufficient basis for an agreement between the
parties to this effect.
C. Appointments of lay members by the High Court at the
preparatory stage
- At
the preparatory stage the High Court decided, in view of the
financial character of the subject matter, to sit with two lay
members with expertise in financial matters and invited the parties
to propose candidates. The applicant company did not make any
proposal. Sundal Collier proposed Mr Abrahamsen (hereinafter referred
to as “Mr A.” or “lay member A.”), an
economist, and the applicant company did not object within the set
time-limit.
- On
14 March 2003 the High Court appointed Mr A. as lay member, after
having specified the impartiality requirement, and informed the
parties about the prospective appointment of a second lay member, Mr
D., an economist. However, since it turned out that Mr D. did not
satisfy the impartiality requirement, he was replaced by Mr Bonnevie
(hereinafter referred to as “Mr B.” or “lay member
B.”), a chartered accountant.
- In
the meantime the applicant company appealed against the High Court's
decision of 14 March 2003 to the Appeals Leave Committee of the
Supreme Court disputing the necessity and desirability of appointing
lay members in general. It also contested the procedure whereby Mr A.
had been appointed on the proposal of Sundal Collier and not on a
joint proposal by the parties. The applicant company questioned
whether Mr A.'s professional background made him suitable as an
expert in the case. On 15 May 2003 the Committee upheld the High
Court's decision, finding that the appeal had no prospects of
success.
D. Oral hearing before the High Court
- The
High Court held an oral hearing over nineteen days or so between 14
October and 13 November 2003 at which each party was represented by
counsel and an assistant lawyer. From the outset it was composed of
three professional judges – Mr Justice Omsted, President, Mr
Justice Bøhn and Mr Justice Nesheim, ad hoc judge –
and two expert lay judges, Mr A. and Mr B.
- There
were no objections to the composition of the High Court at the
opening of the hearing on 14 October 2003 (section 115 of the
Administration of Courts Act (domstolloven) - Law of 13 August
1915 no. 5, see paragraph 36 below). On that date and on 15, 16 and
20 October 2003 the lawyers for the applicant company made their
opening address.
- On
the last-mentioned date the Presiding Judge of the High Court drew
the parties' attention to the fact that it was considering whether
(as requested by the applicant company – see paragraph 9 above)
it would be appropriate to disjoin the proceedings, as provided for
in Article 98 § 2 of the 1915 Code of Civil Procedure
(Tvistemålsloven), in respect of point 1 of the
counter-action and invited the parties to give further consideration
to the matter.
- In
the morning of 21 October 2003 counsel for the applicant company
continued his address and entered his plea. Thereafter the assistant
lawyer for the respondent began his opening address. At some point
during this address lay member Mr A. informed the parties that, in
his capacity as an employee of PricewaterhouseCoopers, he had been
involved in an assignment for ABG Sundal Collier and First Securities
in connection with the listing of a company on the stock exchange.
The parties gave notice that they wished to consider this matter in
further detail and to revert later to the question whether Mr A.
should be able to sit in the case.
- Before
adjourning the proceedings on 21 October 2003, the Presiding Judge
provided the parties with further information on the question of
disjoining the proceedings with regard to the first point of the
counter-action. The parties were asked to give their final comments
on this question before counsel for the respondent commenced his
opening address in respect of the counter-action.
- When
the proceedings resumed on the following day, 22 October 2003, the
Presiding Judge opened by taking up the question of the eligibility
of Mr A. in response to the pleadings on this subject submitted by
the applicant company's lawyer. Mr A. then provided further details
of his relationship with ABG Sundal Collier. Since some of the
questions raised by the applicant company required further
investigation by ABG Sundal Collier, it was agreed that the issue of
the lay member's ability to take part in the case should be adjourned
until the following day.
The
assistant lawyer for the respondent then continued his opening
address and entered his pleas.
The
Presiding Judge informed the parties that the Court intended to rule
on the various procedural questions raised in the case the next day.
- When
the proceedings resumed in the morning of the following day, 23
October 2003, counsel for the applicant company asked that Mr A. be
absent from the pleadings regarding his eligibility. The High Court
adjourned briefly to consider the question and, when the proceedings
resumed, decided that Mr A. should not take part in the subsequent
exchanges on the question.
- Counsel
for each of the parties then made submissions on the question of
eligibility with reference to section 108 of the Administration of
Courts Act.
- The
parties were then given the opportunity to argue their views on the
question of disjoining the proceedings as provided for in Article 98
§ 2 of the Code of Civil Procedure.
- At
12.30 p.m. the High Court adjourned the proceedings until the
afternoon and withdrew to deliberate and vote in camera on the
questions of eligibility and disjoinder.
- At
3 p.m. on the same day (23 October 2003) the High Court convened
again, sitting with the professional judges and lay member Mr B. The
High Court delivered two decisions, signed by the three professional
judges and lay member Mr B., but not by lay member Mr A., who had not
taken part.
- The
first decision concerned the disqualification matter, in which the
High Court observed inter alia:
“During the appeal proceedings lay member [Mr A.],
who is an economist, remembered a circumstance that he thought
appropriate to mention to the other members of the bench and which
was then passed on to the parties.
[Mr A.] is a partner in PricewaterhouseCoopers DA. At
the time of writing this company is engaged in an assignment for ABG
Sundal Collier Norge ASA (referred to hereafter as ABG Sundal
Collier), the parent company of one of the parties in this case,
Sundal Collier & Co ASA. In collaboration with a second company,
First Securities ASA, ABG Sundal Collier has undertaken a consultancy
assignment for a company seeking to be listed on the Oslo Stock
Exchange. PricewaterhouseCoopers' assignment consists of providing
certain auditing and accounting services in connection with the
stock-exchange launch. The assignment was given last spring following
a tendering competition and, according to the information provided,
most of the work on the assignment is being performed by
PricewaterhouseCoopers' Bergen office. [Mr A] has been entrusted with
the task of providing advice in connection with the assignment and
will thus be one of the people who will provide the services in
question. In this context he has also had some direct contact with a
representative of ABG Sundal Collier. According to the submitted
documents, the fee for the assignment will be approximately NOK
300,000. The assignment has not yet been completed. The company
seeking listing will ultimately be liable for payment to
PricewaterhouseCoopers.
After [Mr A.] had explained the situation, the
[applicant company] requested further information from the opposing
party and the parties subsequently exchanged pleadings on the
question of eligibility. At today's hearing Advocate Gade, acting for
[the applicant company], filed an objection to the eligibility of lay
member [Mr A.]. The parties were given the opportunity to comment on
the question. [Mr A.] was not present in court during the submissions
and decision on the question of his eligibility.
[The applicant company] argues that lay member
[Mr A.] is disqualified pursuant to section 108 of the Administration
of Courts Act. The company refers, among other things, to the
information that PricewaterhouseCoopers has obtained approximately
six per cent of the commissions carried out for ABG Sundal Collier
during the last three years. A commission concerning a stock market
introduction is very prestigious and is currently a rare occurrence.
It is obvious that PricewaterhouseCoopers has considerable interest
in obtaining this type and other kinds of assignments from ABG Sundal
Collier, a main actor in this market. As a partner in
PricewaterhouseCoopers, [Mr A.] has a direct financial interest in
the company's income and future income potential. What is decisive is
how this matter would appear to the public. The counter-action in the
case concerns a considerable compensation claim against Sundal
Collier & Co ASA. According to the information available, there
is currently no activity in this company, and it is obvious that, for
the purposes of the impartiality issue, this company ought to be
identified with ABG Sundal Collier, which has continued the daughter
company's activity. There is clearly too close a connection between
[Mr A.] and the respondent for [Mr A.] to serve as a judge in the
case. A further disqualifying circumstance is that [Mr E.] of ABG
Sundal Collier is a central witness in the case with regard to the
question whether [the applicant company's] representative during a
meeting with Sundal Collier & Co ASA, attended by [Mr E.], made
statements which could provide a basis for demanding confiscation of
assets. It is untenable for [Mr A.] to assess whether the witness
statement from a person with whom he has a relationship of continuous
professional cooperation is valid.
At the preparatory stage [the applicant company] was
particularly concerned about the need for any lay members appointed
to have sufficient independence from the parties and in this
connection the company pointed to the close business relations
between the large companies in the financial sector. It should also
be emphasised that the law firm of counsel for the respondent carried
out commissions for ABG Sundal Collier in connection with the stock
market introduction. ...
Sundal Collier & Co ASA claim that lay member
[Mr A.] is not disqualified from taking part in the case. His
connection to the respondent in the appeal is too loose. This is
illustrated by the fact that it never occurred to [Mr A.] in the
beginning that there could be a ground for disqualifying him. The
assignment in question is very small and [Mr A.] does not play a
central role in it. His role is primarily to provide advice to
PricewaterhouseCoopers' office in Bergen, which is handling the
consultancy. Bills and fees are addressed to ABG Sundal Collier and
First Securities, but it is the company which is to be introduced on
the stock market which will cover the costs. [Mr A.] does not have
any daily or permanent dealing with the consultancy. This is a
one-off consultancy consisting in objective accountancy
considerations. [Mr A.] is not personally a contractual party and
PricewaterhouseCoopers has no direct or indirect interest in the
outcome of the court case. [Mr A.] will be removed from the
consultancy. No one from counsel's law firm who is directly involved
in the case has been aware of the matter. The law firm has no
commission for ABG Sundal Collier in connection with the stock market
introduction but only for the company whose introduction is being
sought.
The Norwegian financial milieu is small and there are
very few large accountancy firms that are able to take on such
consultancies. A strict interpretation of section 108 of the
Administration of Courts Act would lead to a very narrow choice of
competent lay members in cases where particular competence in finance
and accountancy is required. ...
The High Court is of the view that there is
nothing to suggest that lay member [Mr A.] is not fully able to reach
an impartial decision in the case, notwithstanding the contractual
relationship between ABG Sundal Collier and PricewaterhouseCoopers.
It is noted that [Mr A.] himself did not view this relationship as a
problem, and it was not until the second week of the proceedings that
it occurred to him that he should mention the relationship. This is
not decisive, however, since the question of disqualification must be
considered on the basis of a more general assessment of what
relationship between a lay member and a party will be deemed
unacceptable pursuant to section 108 of the Administration of Courts
Act.
The High Court notes that objections to the eligibility
of the lay member have been entered by [the applicant company] and
the court refers to [the applicant company]'s submissions as cited
above. Having considered the matter in its entirety, the Court is of
the view that, in the light of the circumstances, lay member [Mr A.]
should withdraw.
The decision is unanimous.
Conclusion
[Mr A.] is ordered to withdraw.”
- In
the second decision the High Court decided to disjoin the
proceedings:
“Having put the question to the parties of
disjoining the proceedings as provided for in Article 98 § 2 of
the Code of Civil Procedure, the Court unanimously decided with
respect to the counter-action – item 2 of the [applicant
company's] statement of claim – that the following two
questions should be considered first:
1. Whether, in the light of the negotiating situation
between the parties, Sundal Collier & Co ASA were in breach of
their obligations in relation to [the applicant company], in other
words whether there was an obligation for SCC not to apply for
attachment in Norway, Sweden and/or Luxembourg.
2. Whether there exist other fault-based or strict
grounds for liability in connection with the applications for
attachment in Norway, Sweden and Luxembourg.
The decision means that for the time being the court
will not review questions relating to a causal link in respect of the
alleged losses or the question whether there should be imputation of
liability between the [the applicant company] and the company
Plentius.
After
the proceedings had been completed in accordance with this decision,
the High Court ruled, following deliberations, that a decision should
be rendered in both the primary and the counter-action on the basis
of the decision adopted.
- When
the proceedings resumed on Monday 27 October 2003, counsel for the
applicant company filed a motion for the case to be discontinued on
the grounds of the High Court's order of 23 October 2003 requiring
lay member Mr A. to withdraw. Counsel for the respondent objected.
Thereafter the Presiding Judge informed the parties that the High
Court had unanimously decided that the proceedings should continue,
as provided for in section 15(1) of the Administration of Courts Act
(see paragraph 37 below). In this regard the High Court stated the
following in its judgment of 22 January 2004:
“The disqualification of the lay member [Mr A.]
did not disqualify the other judges and the need for expert evidence
was safeguarded in the further proceedings.”
- According
to the transcripts of the High Court's hearings, it subsequently
heard the case from 28 to 30 October, 3 to 7 November and 10 to 13
November 2003.
- In
a decision of 17 November 2003 the High Court reiterated its decision
of 23 October 2003 on the disjoinder of the proceedings and affirmed
that the appeal proceedings had been conducted in accordance with
this decision until 13 November 2003. It further stated that, after
its deliberations held on 14 and 17 November 2003, it had decided to
close the proceedings and adjudicate the case – both the
principal action and the counter-action as it had been pleaded.
E. Judgment by the High Court and appeal by the
applicant company
- By
a judgment of 22 January 2004, the High Court upheld the City Court's
judgment in the main and ordered the applicant company to pay
specified amounts for Sundal Collier's legal costs both before the
City Court and the High Court.
- According
to the High Court's judgment, at an unspecified time after the City
Court's judgment of 4 January 2002, Sundal Collier & Co ASA's
broker activity had been taken over by the parent company ABG Sundal
Collier and since then the former company had had no economic
activity.
- The
applicant company sought to appeal against the High Court's procedure
and judgment to the Supreme Court (Høyesterett).
- As
to the procedure, the applicant company argued that the High Court
judgment ought to be quashed, notably on the ground that the court
had been unlawfully constituted. This was due to the participation of
lay member A., who had been disqualified under section 108 of the
Administration of Courts Act (Article 384 § 2, item 2, of the
1915 Code of Civil Procedure). In the alternative, the applicant
company maintained that lay member A.'s participation must have had
an influence on the High Court judgment (Article 384 § 1). The
proceedings had lasted for “seven” days by the time lay
member A. was ordered to withdraw. The substantive questions
concerned relatively old facts, which meant that the parties'
pleadings and the case documents would be central to the High Court's
determination of the case. Moreover, the respective decisions to
disqualify lay member A. and disjoin the proceedings had been taken
in the same court session. A decision to disjoin the proceedings
presupposed that the judges had discussed the substance of the case,
an issue that had been raised on the fourth day of the hearing
already. In the further alternative, the applicant submitted that the
High Court's decision to continue the proceedings with reference to
section 15 of the Administration of Courts Act after A.'s withdrawal
had constituted an error of procedure.
- The
Court notes that in its notice of appeal of 8 April 2003 to the
Appeals Leave Committee of the Supreme Court, the applicant company
reiterated, inter alia, that it “had consistently argued
in favour of disjoining the proceedings before the High Court, as had
been done before the City Court, in accordance with Article 151 §
2 of the Code of Civil Procedure”.
- On
16 July 2004 the Appeals Leave Committee of the Supreme Court
(Høyesteretts kjæremålsutvalg) refused the
applicant company leave to appeal with regard to the High Court's
procedure, finding it obvious that the appeal had no prospects of
success. As for the remainder, the Committee refused the applicant
company leave on the ground that the appeal represented no interest
beyond the particular case and that no other reason warranted the
appeal being heard by the Supreme Court.
II. RELEVANT DOMESTIC LAW
- The
requirements of impartiality of judges and lay members are set out in
sections 106 to 108 of the Administration of Courts Act
(domstolloven) – Law of 13 August 1915 no. 5. In the
present case, the national High Court relied on section 108, which
reads:
Section 108
“Nor may a person sit as a judge or juror if there
are other particular circumstances which are liable to weaken
confidence in his impartiality. This applies in particular if a party
requests that he withdraws on this ground.”
- As
for the procedure for handling questions of impartiality, the
following provisions of the 1915 Act were relevant:
Section 111
“A party wishing to request that a person be
excluded from taking part [in the proceedings] should do so as soon
as he becomes aware of the matter which justifies the request.
He may no longer request exclusion pursuant to section
108 if he was aware of the particular circumstances but nonetheless
proceeded to plead the case before the court.
The request may be submitted either orally or in writing
and shall state the reasons relied on.
Section 115
“Before the hearing of the particular case begins,
the president of the court shall inform the jurors or lay members
that they are excluded from serving if they fall within any of the
situations referred to in sections 106 or 107, or if, for their part,
such circumstances exist as referred to in section 108, and he shall
call upon them and the parties to disclose the fact if this should be
the case.”
- The
1915 Act contains the following provision on the possibility to
continue a hearing in the event of a member's inability to sit:
Section 15
“If any member of the court or jury is unable to
attend after the main hearing has begun, the hearing may be continued
without summoning a replacement provided that there is only one juror
or lay member and only one judge less than the number normally
required. Both in civil and criminal proceedings, a judge who, in
accordance with section 12(1), may serve as the president of the
court must always be present.
When the Court of Appeal is composed only of three
professional judges, the proceedings may not be continued if any of
them is unable to attend.”
- Article
98 of the former Code of Civil Procedure (tvistemålsloven)
– Law of 13 August 1915 no. 6, replaced with effect from 1
January 2008 by a new Code, stated:
Article 98
“The court may join one or more cases for combined
hearing and in such case for joint ruling when the hearing of the
case may thus be facilitated or accelerated and when at least one of
the parties is the same in all of the cases.
The court may decide that there shall be a separate
hearing concerning one or more claims combined into a single case or
concerning individual issues in dispute concerning the same claim.
The decision of the court in accordance with this
section may not be challenged or appealed.”
- The
above provision regulated the disjoinder of proceedings only, not the
disjoinder of adjudications, which were governed by Article 151 §
2. The latter provision provided that in a case concerning a
compensation claim or other claims the size of which was disputed,
the adjudication of the size of the claim could, at the request of
both parties, be adjourned.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant company complained that, in the proceedings before the High
Court, it had not been afforded a fair hearing before an impartial
tribunal as guaranteed by Article 6 § 1 of the Convention, which
in so far as relevant reads:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
The
Government disputed the applicant company's complaint and invited the
Court to find that there had been no violation of the Convention in
the instant case.
A. Preliminary issue regarding the scope of the case
- The
Court reiterates that, in its initial application under the
Convention, the applicant company complained that the High Court had
lacked the requisite impartiality for the purposes of Article 6 §
1 on account of its having pursued its examination of the case
notwithstanding its decision of 23 October 2003 that lay member A.
was disqualified and despite A.'s position and potential influence on
the outcome of the case. The applicant company pointed out that the
case concerned “in the first place ... an obvious issue of
objective impartiality “[b]ut that [this did] not mean that the
matter would not give rise, also, to an issue of subjective
impartiality”.
- Subsequently,
at the merits stage before the Court, the applicant company pleaded
that the High Court as a whole had lacked subjective impartiality,
relying on several new items of evidence not previously submitted
either before the national courts or the European Court. This
included in particular a written statement by lay member B., dated 12
June 2008, relating notably to the attitude of the professional
judges during the proceedings, to which the Government objected with
reference to a letter from the Presiding Judge to Mr B. dated 7
October 2008. However, in the Court's view the new evidence
significantly alters the substance of the applicant company's
complaint about lack of impartiality under Article 6 § 1 of the
Convention. It is not covered by the Court's decision of 29 April
2008 declaring the complaint admissible. Therefore the Court will not
consider the applicant company's argument that the High Court as a
whole was personally biased against it. The Court will confine its
examination to whether there were objective reasons to fear that, on
account of lay member A.'s participation, the High Court, despite its
having discharged him, failed to meet the impartiality requirement in
Article 6 § 1 of the Convention in its determination of the
civil dispute at issue.
B. Submissions of the parties
1. The applicant company's arguments
- The applicant company complained that the High Court
had failed to comply with the requirement of impartiality in Article
6 § 1 on account of its having pursued its examination of the
case notwithstanding its decision of 23 October 2003 that lay member
A. had been disqualified from taking part in the case. This decision
had been taken on the sixth day of the hearing, after the High Court,
with lay member A.'s participation, had heard the applicant company's
opening address on all aspects of the case and the respondent party's
opening address on the main action and the merits of the
counter-action (albeit not the causation and quantum aspects of the
latter claim), and had deliberated. Although it had been beyond
dispute that lay member A. had been disqualified from taking part in
the case, the High Court did not seem to have examined the issue
whether its remaining members still satisfied the requirement of
impartiality.
- Moreover,
the applicant company emphasised that on 23 October 2003 the High
Court had also decided to disjoin the proceedings relating to the
counter-action, implying that separate proceedings should first have
been conducted regarding the merits of the counter-action while
leaving aside, at that stage, the issues of quantum and causation.
This did not mean that the High Court would have to give a separate
judgment on the former issues. However, as was apparent from its
decision of 17 November 2003, the High Court had already on 23
October 2003 entertained serious doubts as to the need to continue
the proceedings by hearing the parties on the causation issues. The
decision to disjoin the proceedings made sense only because, as early
as 23 October 2003, the High Court had taken the prima facie view, as
it indeed decided on 17 November 2003, that it would not wish to hear
the parties on the causation issue since the counter-claim would fail
on its merits.
- Such
a prima facie assessment of the merits was not binding on the High
Court and, from a strictly legal point of view, the decision to
disjoin the proceedings had merely concerned a procedural matter.
However, the fact that the High Court was in a position to disjoin
the proceedings on 23 October 2003 without any lengthy formal
deliberations (if any), confirmed that there had been a continuous
exchange between the judges composing the High Court who by then had
heard the case over several days. Whether such exchanges could be
qualified as deliberations from a formal legal point of view was not
decisive. Thus it could not be seriously denied that the High Court's
decision to disjoin the proceedings, which de facto implied a
prima facie assessment of the case, might well and was actually
likely to have been influenced by lay member A.'s participation in
the first six days of the proceedings.
- The
fact that lay member A., despite having been invited to inform the
court of any disqualifying circumstances prior to his appointment,
did not disclose his links with Sundal Collier until the proceedings
were well under way could only enhance the applicant company's
legitimate concern about lay member A.'s position and the influence
he may have had on the proceedings.
- It
was not accurate, as claimed by the Government, that the Supreme
Court had reviewed the impartiality issue. On the contrary, the
Supreme Court had refused to even hear the appeal.
2. The Government's arguments
- The
Government stressed that lay member A.'s withdrawal had been
motivated not by subjective factors, but by objective reasons only.
This in itself implied that there was no legitimate reason to fear
that he could have adversely influenced the other judges and thus
have affected their impartiality.
- Moreover,
his connection to Sundal Collier had consisted solely of a relatively
minor role of giving advice in an assignment involving Sundal
Collier's parent company. In reality the commission had been carried
out on behalf of the company for which a stock-exchange introduction
was being considered, as could be deduced from the fact that it was
this company that had been responsible for paying the consultancy
fees. None of the parties to the case before the High Court had been
involved in the assignment. The loose connection between Mr A.
and Sundal Collier was also illustrated by the fact that he had not
thought of raising the impartiality issue until four and a half days
into the hearing. The High Court had been very cautious and had
allowed a wide margin of safety when, in spite of the loose
connection between Mr A. and Sundal Collier, it had decided that he
should withdraw. It could reasonably be questioned whether there were
sufficient reasons to doubt his objective impartiality. These
considerations ought to be taken into account when considering
whether A.'s participation could have affected the impartiality of
the remaining members of the High Court formation.
- In
the Government's view it was significant that, while the impartiality
issue was raised four and a half days into the hearing, the High
Court, with the applicant company's approval, had deferred its
decision on the withdrawal until the sixth day. It must be assumed
that in the interval, the possible ineligibility of Mr A. had made
him and the other judges particularly cautious. For example, he had
not participated in the decisions on withdrawal or on disjoining the
proceedings.
- The
Government stressed that there was no evidence to support the
applicant company's allegation that Mr A., during the first six days
of the proceedings, had participated in deliberations and submitted
views in relation to the case at hand. As was customary in all civil
cases before the domestic courts, the deliberations on the merits had
been held after the closure of the hearing “21 days”
after Mr A. had been discharged.
- In
the light of the above, the applicant company had had no legitimate
reason to fear that the High Court had not been impartial.
- In
no way did the High Court's decision under Article 98 § 2 of the
Code of Civil Procedure to disjoin the proceedings imply a lack of
impartiality. Such a decision related only to the progress of the
proceedings and did not imply any appraisal of the merits. This was
shown by the fact that it was not until after the oral hearings had
been concluded and the High Court had deliberated for two days that
it found that the counter-action had been ill-founded. It had
therefore become unnecessary to continue the proceedings concerning
the counter-action. Accordingly, the previous decision on disjoinder
of the proceedings cannot be considered as an indication of any
predisposition on the part of the High Court.
- The
High Court had considered the impartiality issue and found that lay
member Mr A.'s participation did not disqualify the other judges. It
should be noted that the applicant company had not lodged any
application for disqualification, which it could have been expected
to do if it had considered this a problem. The High Court's
assessment of its own impartiality was also upheld by the Supreme
Court.
- Finally,
the Government pointed out that, as a result of the strict manner in
which the Norwegian rules on impartiality were applied, it was not
infrequent in practice that a judge or juror had to withdraw on
objective grounds after the hearing had commenced. A principle
whereby the withdrawal of one member would automatically require the
withdrawal of the court as a whole, and a full hearing before a
differently composed tribunal, would not only be unnecessary but also
expensive and time-consuming and would lead to practical problems for
smaller tribunals.
C. Assessment by the Court
- The
Court considers that it is essentially the requirement of
“impartiality” that is in issue in the present case (see
Ekeberg and Others v. Norway, nos. 11106/04, 11108/04, 11116/04,
11311/04 and 13276/04, § 31, 31 July 2007). The existence of
impartiality for the purposes of Article 6 § 1 of the Convention
must be determined according to a subjective test, that is, on the
basis of the personal conviction of a particular judge in a given
case, and also according to an objective test, that is by
ascertaining whether the judge offered guarantees sufficient to
exclude any legitimate doubt in this respect (see Wettstein
v. Switzerland, no. 33958/96, § 42, ECHR 2000-XII;
Pétur Thór Sigurðsson v. Iceland,
no. 39731/98, § 37, ECHR 2003 IV; Kyprianou v.
Cyprus [GC], no. 73797/01, § 118-121, ECHR 2005 XIII;
and Lindon, Otchakovsky-Laurens and July v. France [GC], nos.
21279/02 and 36448/02, § 75, ECHR 2007 ...). It should be
reiterated that the principles established in the Court's case-law
apply to lay judges as they do to professional judges (see Langborger
v. Sweden, judgment of 22 June 1989, Series A no. 155, p.
16, § 32; Holm v. Sweden, judgment of 25 November 1993,
Series A no. 279 A, p. 14, § 30; and Pullar v. the
United Kingdom, judgment of 10 June 1996, Reports of Judgments
and Decisions 1996 III, p. 792, § 29; see also
Ekeberg and Others, cited above, § 31).
- As
to the subjective test, the personal impartiality of a judge must be
presumed until there is proof to the contrary (ibid., § 32).
- Under
the objective test, it must be determined whether, quite apart from
the judge's personal conduct, there are ascertainable facts which may
raise doubts as to his or her impartiality. In this respect even
appearances may be of a certain importance. What is at stake is the
confidence which the courts in a democratic society must inspire in
the public. Accordingly, any judge in respect of whom there is a
legitimate reason to fear a lack of impartiality must withdraw. This
implies that in deciding whether in a given case there is a
legitimate reason to fear that a particular judge lacks impartiality,
the standpoint of the party concerned is important but not decisive.
What is decisive is whether this fear can be held to be objectively
justified (see, amongst other authorities, Pullar, cited
above, § 37, and Ekeberg and Others, cited above, §
33).
- In
the present case, the Court first observes that, in reviewing the
matter, the other High Court members found nothing to indicate that
lay member A. would not have been “fully able to reach an
impartial decision in the case”. No evidence has been adduced
in the Convention proceedings to suggest that lay member A. was
personally biased against the applicant company (see Pullar,
cited above, § 43, and Ekeberg and Others, cited above, §
32). The Court sees no reason to hold otherwise.
- It
was the existence of certain links between lay member A. and the
respondent party and the fact that the applicant company had
requested his disqualification that led the High Court to discharge
him pursuant to section 108 of the Administration of Courts Act.
- Considering
the issue from the angle of the requirement of objective impartiality
under Article 6 § 1 of the Convention, the Court notes that at
the material time lay member A. was a partner in a consultancy firm,
PricewaterhouseCoopers. On the latter's behalf and in concert with
others he provided auditing and accounting services for ABG Sundal
Collier in relation to the prospective launch of a third company on
the stock exchange. PricewaterhouseCoopers's involvement had followed
a competitive tender and had included advice of an essentially
technical character. Lay member A. did not assume any main role in
the assignment. None of the recipients of the services so provided by
PricewaterhouseCoopers was a party to the proceedings before the High
Court; ABG Sundal Collier was only a parent company of the opposing
parties, Sundal Collier & Co ASA. While bills and fees had been
addressed to the latter (and First Securities), the commission which
PricewaterhouseCoopers received in return for its services had been
paid by the company for whom the stock-exchange introduction was
being considered.
- In
these circumstances, apart from noting the existence under Norwegian
law of appropriate safeguards to ensure the impartiality of judges
and lay judges (see Ekeberg and Others, cited above, §
48), the Court does not find any direct link between lay member A.
and the opposing party in the proceedings. Nor does it appear that Mr
A. had any direct interest in the outcome of the case between the
applicant company and the respondent company.
- The
Court considers that the reasons for doubting Mr A.'s objective
impartiality, although they may be legitimate, were not particularly
strong.
- Furthermore,
neither of the parties had any objections to the High Court's
composition when invited to comment on this at the opening of the
hearing on 14 October 2003. Lay member A.'s own revelations,
subsequently, about the assignment in question occurred on 21 October
2003, four and a half days into a hearing which extended over
nineteen days or so until 13 November 2003. At the time of Mr A.'s
revelation, counsel for the applicant company had made his opening
address and counsel for the respondent party had just started his
opening address. In accordance with the wishes stated by the parties,
the High Court gave them an opportunity to reflect on the
disqualification issue and to revert to the matter later. The issue
became the subject of pleadings by the parties and clarification by
A. on 22 October 2003 and further pleadings in his absence in the
morning of 23 October 2003. In the afternoon of that day, the
remaining members of the High Court unanimously upheld the applicant
company's request to order lay member A. to withdraw. Mr A.'s
presence was limited to, and terminated after, a relatively early
phase of the hearing (see Ekeberg and Others, cited above, §
45). Thus far, all the procedural steps taken by the High Court in
relation to the handling of Mr A.'s withdrawal had been agreed to by
the applicant company.
- On
the following hearing day, on 27 October 2003, the High Court
rejected the applicant company's claim that, as a consequence of lay
member A.'s participation, the High Court as a whole was disqualified
and ought to discontinue the proceedings. On that date those members
apprised themselves of the issue regarding their own impartiality and
found that lay member A.'s disqualification did not disqualify them.
The Court is not convinced by the applicant company's argument that
the High Court, as composed after lay member A.'s withdrawal, failed
to satisfy the impartiality requirement under Article 6 § 1 of
the Convention.
- In
this connection, the Court finds unpersuasive the particular concern
expressed by the applicant company that lay member A. may have had an
influence on the High Court's decision of 23 October 2003 to disjoin
the proceedings regarding the counter-action and, by implication, the
adjudication of the case. It should be noted that a disjoinder of the
proceedings regarding the counter-action had previously been
requested or favoured by the applicant company in its appeal to the
High Court, and then at a preparatory stage before the latter and
also, so it appears, at the hearing (see paragraphs 9 and 33 above).
On 20 and 21 October 2003 the High Court President took the matter up
with the parties. On 23 October 2003 they pleaded the issue after the
High Court had (unanimously) ordered Mr A. to withdraw. Later that
day the High Court deliberated on it without Mr A.'s participation
and (unanimously) decided to disjoin the proceedings provisionally.
- The
decision only became definitive when the High Court, after having
heard the case for eleven more days, until 13 November 2003, and
deliberated on 14 and 17 November 2003, decided that the case was
ready for adjudication without hearing additional argument on the
counter-action.
- Thus,
it transpires that the High Court's decision to disjoin the
proceedings relating to the counter-action was reached in lay member
A.'s absence and in substance endorsed the applicant company's
position on a point of procedure. While the latter is not in itself
decisive, it significantly weakens the allegation that lay member A.
could have unduly influenced the decision to the detriment of the
applicant company. Its submission that the decision could indicate
that A. had contaminated the proceedings by influencing other members
to adopt an unfavourable stance towards the applicant company in
their determination of the merits of the case must therefore be
rejected.
-
In the Court's view, any misgivings stemming from the possibility
that Mr A. might have exerted influence on other members of the High
Court formation by taking part in informal exchanges with them was
adequately addressed by their (unanimous) order of 23 October 2003
that he withdraw and their (unanimous) decision of 27 October 2003
that his disqualification did not disqualify them (see, mutatis
mutandis, Ekeberg and Others, cited above, § 48).
- Thus,
it cannot be said that lay member A. was involved either directly or
indirectly in determining the civil dispute when the High Court,
after having heard arguments from both parties over eleven further
hearing days and having deliberated for two additional days,
adjudicated the case (see Ekeberg and Others, cited above, §
47).
- In
the light of the above, the Court finds that the nature, timing and
short duration of his involvement in the proceedings concerned were
not capable of causing the applicant company to have legitimate
doubts as to the impartiality of the High Court as a whole. The High
Court was therefore not obliged to discontinue the proceedings and
allow them to restart before a differently composed High Court for
the purposes of the requirement of an impartial tribunal under
Article 6 § 1 of the Convention (see Ekeberg and Others,
cited above, § 49).
- Accordingly,
there has been no violation of Article 6 § 1 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no violation of Article 6 §
1 of the Convention.
Done in English, and notified in writing on 24 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
