William Atwell KELLY (No. 2) v the United Kingdom - 28833/06 [2011] ECHR 411 (22 February 2011)

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Application no. 28833/06
by William Atwell KELLY (No. 2)
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 22 February 2011 as a Chamber composed of:

Lech Garlicki, President,
Nicolas Bratza,
Sverre Erik Jebens,
Päivi Hirvelä,
Ledi Bianku,
Zdravka Kalaydjieva,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant

The application was lodged by Mr William Atwell Kelly, a British national who was born in 1948 and lives in Liverpool. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton, Foreign and Commonwealth Office.

The applicant complained under Article 6 of the Convention that the proceedings relating to his taxi licence application were not dealt with within a reasonable time; and under Article 13 that the failure to compensate him for the delay in obtaining the licence deprived him of an effective remedy.

The application was communicated to the Government on 3 December 2008, who submitted their observations on the admissibility and merits on 13 March 2009. By letter dated 19 March 2009 the Government’s observations were sent to the applicant, who was requested to submit any observations together with any claims for just satisfaction in reply by 30 April 2009. No reply was received from the applicant.

By letter dated 22 July 2009, sent by registered post, the applicant was advised that failure to submit his observations by 15 September 2009 could lead to the Court deciding to strike out the application for lack of interest in pursuing the application.

By letter dated 14 September 2009, the applicant’s personal assistant requested on his behalf a further extension of three months of the deadline for submission of observations, as the applicant was not fit to deal with the proceedings before the Court. It is not clear whether the letter was sent on the applicant’s instructions.

By letter dated 16 September 2009, the Court granted the extension sought and fixed a new deadline for submission of the applicant’s observations, namely 16 December 2009. The applicant failed to submit his observations by the new deadline.

By letter dated 21 December 2009, sent by registered post, the applicant was notified that the period allowed for submission of his observations had expired on 16 December 2009 and that no extension of time had been requested. The applicant’s attention was drawn to Article 37 § 1 (a) of the Convention, which provides that the Court may strike a case out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue the application.

By facsimile dated 22 February 2010, the applicant’s personal assistant requested on his behalf a further extension of two months of the deadline for submission of observations, explaining that the applicant was still not fit to deal with the proceedings before the Court. It is not clear whether the letter was sent on the applicant’s instructions.

By letter dated 25 February 2010 the Court granted the extension sought in part and fixed a new deadline for submission of the applicant’s observations, namely 25 March 2010.

The applicant subsequently submitted his observations in reply to those of the Government. On 14 April 2010 these were forwarded to the Government for comment.

On 18 May 2010 the Government submitted their further observations on the admissibility and merits of the application. On 1 June 2010 the Government expressed their wish to reach a friendly settlement in the case.

By letter dated 3 June 2010 the applicant was invited to submit any comments on the “without prejudice” friendly settlement offer by 1 July 2010. No comments were received by the deadline.

By letter dated 20 July 2010, sent by registered post, the applicant was notified that the period allowed for submission of his comments had expired on 1 July 2010 and that no extension of time had been requested. The applicant’s attention was drawn to Article 37 § 1 (a) of the Convention. The applicant received this letter on 23 July 2010. However, no response has been received.

The Court emphasises the importance of Article 34 of the Convention, which guarantees individual applicants the right to lodge a case with the Court. However the right to lodge a case goes hand in hand with responsibilities relating to the conduct of the proceedings before the Court. In particular, parties are required to cooperate with the Court and to participate effectively in the procedure fixed by the Court (see Rules 44A to 44C of the Rules of Court). Such obligations imply, inter alia, a requirement to comply with deadlines set for the efficient management of the proceedings before the Court (see the Practice Direction on written pleadings, issued by the President of the Court in accordance with Rule 32). Where it is reasonable to do so and upon receipt of a timely request, the Court may grant an extension of a deadline. It may also admit pleadings filed after its expiry (see Rule 38 § 1 of the Rules of Court).

In the present case, the applicant failed on three occasions to comply with a deadline to submit his written observations. His observations were eventually received almost a year after the original deadline set. Following receipt of the applicant’s observations, the Government expressed a wish to reach a friendly settlement of the case and the applicant’s comments were invited. However, the applicant failed to submit any comments on the “without prejudice” friendly settlement proposal by the deadline stipulated. He further failed to respond to the Court’s subsequent letter, which he received on 23 July 2010, warning that in circumstances leading to the conclusion that the applicant no longer intended to pursue his application, his case could be struck out.

While the Court recognises the need for some flexibility where an applicant’s personal circumstances have an unforeseen impact on his ability to participate in the proceedings, such flexibility cannot be without limitations. In the present case the Court has sought to facilitate the applicant’s participation on numerous occasions. Having been notified that the applicant was not fit to deal with the proceedings before the Court, two significant extensions of time were granted. However, notwithstanding the applicant’s health problems, his effective participation in the Court’s proceedings was required. In the circumstances it was for him to take the necessary steps to ensure that, in his absence, his participation was nonetheless secured, via an authorised representative if necessary. The Court observes that the applicant submitted his observations in March 2010 and that no explanation has been received for his subsequent failure to respond to the Court’s communications.

In light of the above, the Court considers that the applicant may be regarded as no longer wishing to pursue his application, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case.

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You are here: BAILII >> Databases >> European Court of Human Rights >> William Atwell KELLY (No. 2) v the United Kingdom - 28833/06 [2011] ECHR 411 (22 February 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/411.html Cite as: [2011] ECHR 411