Eastaway v Secretary of State for Trade & Industry [2007] EWCA Civ 425

[2007] EWCA Civ 425Case No A3/2006/0580
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
[2006] EWHC 299 (Ch)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(CHANCERY DIVISION) MR JUSTICE LIGHTMAN
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10 th May 2007
Before
LORD JUSTICE TUCKEYLORD JUSTICE RIXLADY JUSTICE ARDEN
Between
EASTAWAYAppellantSECRETARY OF STATE FOR TRADE & INDUSTRYRespondentEASTAWAY AppellantSECRETARY OF STATE FOR TRADE & INDUSTRY Respondent
(Transcript of the Handed Down Judgment ofWordWave International LtdA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Matthew Collings QC (instructed by Messrs B C L Burton Copeland) for AppellantMalcolm Davis White QC & Jason Coppel (instructed by Treasury Solicitors) for RespondentHearing Hearing dates : 27-28 March 2007
JudgmentLady Justice Arden :
[1]In 1992, the Secretary of State for Trade and Industry began proceedings against Mr Eastaway for his disqualification as a director. These proceedings culminated in Mr Eastaway giving an undertaking to the Secretary of State in May 2001 not to act as a director for 4½ years. In July 2004, the European Court of Human Rights ("the Strasbourg court") held that these proceedings had taken too long and had thus violated Mr Eastaway’s rights under art 6 of the European Convention on Human Rights ("the Convention"). The crucial question on this appeal is: should the undertaking given in 2001 now be set aside?[2]As the undertaking expired on 31 December 2005, it may be asked why Mr Eastaway is concerned to have the undertaking set aside. The reason is Mr Eastaway contends that he continues to suffer prejudice as a result of the proceedings because of the threat of certain professional disciplinary proceedings hanging over him. I shall need to say more about this prejudice point later in this judgment. Mr Eastaway sought to persuade the judge, Lightman J, that the violation of art 6 found by the Strasbourg court gave him a further right in domestic law to have the disqualification proceedings dismissed and the undertaking set aside. By his order dated 2 March 2006, Lightman J rejected his application and made the order now appealed against.[3]Before I discuss the issues, I need to set out some of the background and the relevant legislative and Convention framework.

Background

[4]Counsel for the Secretary of State, in their skeleton argument, described the litigation between Mr Eastaway and the DTI as "marathon litigation”. That label seems to be wholly justified as there have been numerous steps, some of which can be found in the summary in paras 7 to 31 of the judgment of Lightman J, now reported at [2006] 2 BCLC 489. It is not necessary for me to repeat all of that material. There were other defendants, apart from Mr Eastaway, but they play no part in this appeal. Accordingly, I have not referred to their role when describing these proceedings in this judgment.[5]Mr Eastaway was a director of the Blackspur group of companies, which went into receivership in July 1990. In July 1992, the Secretary of State brought disqualification proceedings against Mr Eastaway, based on his conduct as such director pursuant to the Company Directors Disqualification Act 1986 (“the 1986 Act”). These proceedings were stayed in May 2001 when Mr Eastaway entered into a disqualification undertaking pursuant to section 1A of the 1986 Act. Before giving this undertaking, Mr Eastaway sought to bring an end to the disqualification proceedings. He first brought proceedings for the judicial review of a decision of the Secretary of State to continue them and then proceedings under section 7 of the Human Rights Act 1998 ( “the HRA”) on the grounds that there had been an excessive length of time taken by the proceedings. As a condition of obtaining an adjournment of the disqualification proceedings, Mr Eastaway gave an undertaking to the court (Hart J) on 13 September 1999 that if his application for judicial review was unsuccessful he would agree to the determination of the disqualification proceedings by means of the Carecraft procedure. It is not necessary to describe this procedure. It was established by the court’s case law and was the forerunner of section 1A of the Act, which was inserted by the Insolvency Act 2000, with effect from 2 April 2001. The application for judicial review failed.[6]Mr Eastaway then applied for the proceedings to be dismissed. This application was heard by Sir Andrew Morritt VC in February 2001. The parties conducted the application on the basis that what Mr Eastaway had to show was that the proceedings had taken an excessive length of time, rather than that there had been any prejudice to Mr Eastaway. The Vice Chancellor rejected Mr Eastaway's application and gave directions for the trial. Mr Eastaway was refused permission to appeal from the Vice Chancellor’s order both by the Vice Chancellor and this court. The disqualification proceedings were stayed on 25 May 2001 on the basis that Mr Eastaway would enter into a disqualification undertaking, and on 31 May 2001 Mr Eastaway duly gave an undertaking to the Secretary of State not to act as a director for 4 1/2 years.[7]Thereafter, Mr Eastaway petitioned the Strasbourg court, which gave judgment on 20 July 2004 (reported at [2006] 2 BCLC 361) that the continuance of the proceedings had violated his Convention rights under art 6. The case was what is sometimes called a “length of proceedings” case. As just satisfaction, the Strasbourg court awarded Mr Eastaway compensation for his legal costs of the proceedings to establish the violation both in the English court and in the Strasbourg court.

The prejudice point

[8]Counsel for Mr Eastaway, Mr Matthew Collings QC, informs us that Mr Eastaway is a tax and accountancy expert and is held in high esteem. During the currency of the disqualification undertaking, the court gave permission to Mr Eastaway to become a director, on 9 June 2003, of the Chartered Institute of Directors and the Institute of Taxation and, on 25 May 2004, of WJB Chiltern Group Plc. These orders are some recognition of the professional standing of Mr Eastaway.[9]Nonetheless, the disqualification proceedings continue to cast a shadow over Mr Eastaway's career. Mr Eastaway is a member of the Institute of Chartered Accountants in England and Wales, and the Chartered Institute of Management Accountants, and disciplinary proceedings by those bodies will proceed if the disqualification undertaking remains on his record. Disciplinary proceedings were started against him by (as we understand it) each body, but they have been successively adjourned and are now adjourned pending the outcome of this appeal.[10]Moreover, on Mr Collings’ submission, the position of Mr Eastaway has been exacerbated by comments made by the judge in para 45 of his judgment to the effect that there was a public interest in the professional bodies knowing what happened in the past and that there had been “unattractive episodes” in Mr Eastaway’s past. I do not consider that these are matters of which Mr Eastaway can properly complain. The judge was right to say that the disciplinary matters are for the professional bodies, and that there is a public interest in their carrying out that function. The judge was also right to say that it is a matter for them to decide what action needs to be taken by them. They will be able to consider if they think fit the allegations by the Secretary of State which led to the agreed statement of facts on the basis of which the undertaking was given. We have not been invited to consider any of those allegations.[11]We are not concerned with the merits of the disciplinary proceedings or whether they will in fact take place. Whether they do or not, for the purposes of this appeal we have assumed that they will. The question for us is whether it follows from the violation of art 6, which Mr Eastaway has now proved, that he is entitled to have the undertaking set aside. Legislative Framework Company Directors Disqualification Act 1986

Legislative Framework

[12]A brief explanation of the provisions of the 1986 Act is required. In the 1986 Act, Parliament has provided, for the protection of the public dealing with limited companies, that directors should in certain circumstances be disqualified from acting without the leave of the court as directors or in certain other capacities. In particular, section 6 of the 1986 Act provides that the court must disqualify a director of a company that has become insolvent if his conduct as a director makes him unfit to be concerned in the management of a company. The minimum period of disqualification is two years and the maximum period is fifteen years. The trial of proceedings for the disqualification of a director on this ground are often long and complex, and the courts developed a practice of determining, with the consent of the parties, whether a director should be disqualified and if so for how long, on the basis of an agreed statement of the facts, as a means of disposing of disqualification proceedings without a trial (see generally, Re Carecraft Construction Co Ltd [1994] 1 WLR 172). Parliament has gone further and the Insolvency Act 2000 has amended the 1986 Act to enable the Secretary of State to accept and enforce undertakings in return for not pursuing disqualification proceedings (sec 1A, 1986 Act). The person who gave the undertaking may apply to the court to discharge the undertaking or to reduce the period for which it is to be in force (section 8A of the 1986 Act as amended).[13]Proceedings under section 6 of the 1986 Act must be brought within two years of the company becoming insolvent. Proceedings which, as in this case, are brought at the end of the two-year period are liable to be struck out, if there is inordinate or inexcusable delay: re Manlon Trading Ltd [1995] 1 BCLC 578. Proceedings will be struck out if there is a substantial risk of an unfair trial but they will not be struck simply because there has been a delay in the course of the preparations for trial or even in the trial itself: see for example, Re Manlon Trading Ltd and Re Rocksteady Services Ltd [2001] 1 BCLC 84.

European Convention on Human Rights

[14]I refer in this judgment to arts 6, 34, 35 and 41 of the Convention. Art 6 of the Convention reflects the rule of law. One of the requirements of the rule of law is that in general a court should determine disputes as to a person’s rights or obligations within a reasonable time. This is particularly the case where a person’s reputation or livelihood has been jeopardised. Accordingly, one of the requirements of art 6 is that any case as to civil rights or obligations and any criminal case is determined within a reasonable time.[15]Art 6 provides (so far as material):
“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…”
[16]Art 34 defines who may make applications (other than in inter-state cases):
“Individual applications 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… ”
[17]Art 35 sets out the circumstances in which an individual can apply to the Strasbourg court. It provides so far as material:
“Admissibility criteria 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 (a) … (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…” (a) … (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…”
[18]Art 41 deals with the final relief that the Strasbourg court may give. It provides that:
“Just satisfaction 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

[19]The Convention is not automatically enforceable in English law, but the HRA now requires that, when determining a question arising in connection with Convention rights, English courts shall “take into account” the jurisprudence of the Strasbourg court and have power to give relief in respect of violations of Convention rights. Thus the HRA provides in material part: “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.” (a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights,…[20]Section 7 of the HRA also creates a new statutory remedy for violations by a public authority of Convention rights. This remedy is only available to a “victim”, that is a person who “would be a victim for the purposes of article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act” (sec 7(7)). There is a strict time limit for bringing proceedings under section 7: such proceedings must be brought: “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)). (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,[21]Under sec 22(4), the HRA has only limited retrospective effect, that is effect on matters which occurred before it came into force on 2 October 2000:
“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

[22]The issues on this appeal follow Mr Collings’ submissions to the judge, which have in large part been repeated in this court. I have concluded for the reasons given below that those submissions in large part fail and that the appeal must be dismissed. I summarise in the following subparagraphs the relevant conclusions of the judge and my central conclusions on the challenges to them:(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[23]Both parties accept that it is now established that in a length of proceedings case the finding of a violation of art 6 does not necessarily mean that there cannot be a fair trial of the proceedings or that the proceedings have to be struck out: see Attorney General's Reference (No 2 of2001) [2004] 2 AC 72. As I have already said, this was not the basis on which the parties conducted the application before the Vice Chancellor. They assumed that the proceedings would be struck out if Mr Eastaway succeeded in showing that the proceedings had taken an excessive length of time.[24]Despite this sequence of events, on this appeal, Mr Collings submits that it follows from the decision of the Strasbourg court that there could not be a fair trial and that accordingly this court is bound to come to the conclusion that a fair trial has no longer been possible. This court, he submits, is bound to take the decision of the Strasbourg court into account because of section 2 of the HRA and the court’s obligation is thus to follow that decision, no more and no less.[25]In support of this submission Mr Collings relies upon the following passage from the speech of Lord Hope in N v SSHD [2005] 2 AC 296 at 306:
“24. I would respectfully endorse what was said on this point by Lord Bingham in R (Ullah) v Special Adjudicator [2004] 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 [2003] 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 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 [2003] 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.”
[26]In my judgment, Mr Collings’ argument fails at several levels. I would accept that this court should apply the decision of the Strasbourg court. Indeed, I would say that this is an a fortiori case for doing so because it is not a situation of taking into account a Strasbourg decision which is not binding as a matter of precedent, but the rare case of a decision of the Strasbourg court in proceedings between the same parties. This decision is already binding on the parties as a matter of res judicata. Nothing in the HRA affects that doctrine in this situation. I do not therefore consider that the Secretary of State is correct to assert that the decision in this case only has the precedential force accorded by sec 2 (1) of the HRA 1998. However, the basis of the finding by the Strasbourg court of a violation of art 6 in this case was excessive length of time taken by the disqualification proceedings. Its conclusion is contained in para 56 of its judgment, which states: "…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".[27]The Strasbourg court did not make any finding that there could be no fair trial of the disqualification proceedings despite the delay. Such a finding is not implicit in its decision that art 6 was violated because of the delay. As Lord Bingham explained in Attorney General’s Reference:
“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." ”
[28]Thus, for example, in Saunders v United Kingdom [1998] 1 BCLC 362, where the Strasbourg court held that there had been violations of the applicant's right under art 6(1) not to incriminate himself, the Strasbourg court refused to speculate as to whether the outcome of the criminal trial against the applicant would have been any different had use not been made of the transcripts recording those violations. If the violations of art 6 necessarily resulted in a situation where there could not be a fair trial, this question would not have arisen. This case concerned violations of art 6 of a different kind, but it demonstrates the point made by Lord Bingham that there are separate and distinct rights created by art 6. (2). The decision of the Vice Chancellor[29]Mr Collings submits that he made a submission to the Vice Chancellor that there could be no fair trial of the proceedings and the judge was wrong to come to the contrary conclusion in para 35 of his judgment. In addition, Mr Collings relied before the Vice Chancellor on ReManlon Trading Ltd [1996] Ch. 136, in which lengthy disqualification proceedings were struck out by this court. Accordingly, on Mr Collings’ submission, the judge should have held that the disqualification proceedings ought to have been struck out in 2001. As to that, Mr Malcolm Davis -White QC, for the Secretary of State, submits that no such argument was placed before the Vice Chancellor.[30]I accept the submission that no case was made to the Vice Chancellor that a fair trial was not possible. Indeed, as I have already explained, it was common ground between the parties to the application to the Vice Chancellor that if Mr Eastaway succeeded on the length of proceedings issue it would follow that proceedings would have to be struck out. That submission was later held to be wrong in Attorney General’s Reference. Moreover, in the Manlon case, the application to strike out the proceedings succeeded on the basis that there had been prejudice, not on the basis that there had been inordinate and inexcusable delay in bringing the proceedings, which made it impossible to have a fair trial.[31]Mr Collings further submits that he made a similar submission to the Court of Appeal when he applied for permission to appeal from the Vice Chancellor’s decision. His skeleton argument contained the following passage:
“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 [1996] Ch. 136, a case in which disqualification proceedings were struck out for want of prosecution, and Shtun v Zajelska [1996] 1 WLR 1270, a case dealing with prejudice through fading memories.”
[32]This passage is general and does not explain why it was said that there could be no fair trial in Mr Eastaway's case. Moreover, as I have already explained, the Manlon case was not decided on the basis of excessive length of time making fair trial impossible. In my judgment, Mr Eastaway did not show on his application to the Vice Chancellor that as a result of a delay in prosecuting the disqualification proceedings against him there could no longer be a fair trial of those proceedings. The Vice Chancellor recorded in his judgment that "Mr Eastaway does not now suggest that the delay has been such that a fair trial is impossible." (judgment, para. 19). It is implicit in the fact that the Vice Chancellor gave directions for trial that he considered that it was possible to have a fair trial. My conclusion is consistent with the fact that no case based on the impossibility of a fair trial was made in Mr Eastaway's judicial review proceedings.[33]Mr Collings’ alternative submission is that even if the Vice Chancellor or indeed the Strasbourg court did not hold in Mr Eastaway’s favour that a fair trial was not possible it is still open to him now to contend that that was the position in 2001. The result would be that it was unlawful for the Secretary of State to have accepted a disqualification undertaking from Mr Eastaway.[34]In my judgment, this submission also runs into the ground. There is no seriously arguable case on the material before the court that a fair trial would not have been possible in May 2001. To show that a fair trial was not possible the court would need to know what evidence the parties proposed to adduce in relation to the allegations relating to unfitness.[35]In many disqualification cases, the principal evidence is to be found in the accounting records of the company, or companies, which have become insolvent, and the documentation surrounding the transactions which were, or ought to have been, recorded in its accounting records. Accountancy evidence or other evidence from a person who has inspected the documents for the purposes of the proceedings is often led by the Secretary of State. Sometimes an issue arises as to the attitude of a creditor or prospective lender. It is sometimes said that the directors had every cause to act as they did, because they anticipated, for instance, that further monies would be forthcoming from a particular source. Their defence may then rest upon matters that are not evident from documentation. For example, a director's defence to disqualification proceedings may turn on what he knew or was told at a particular point in time. In that case, oral evidence may be necessary from a witness who was involved in the material events as they occurred. If witness statements have not been taken at an early stage, that evidence may be more difficult to obtain after the passage of time such as occurred in this case. Even if witness statements have been obtained, they may not cover all the details and the witnesses may no longer have a sharp memory of what actually happened on material issues. But these matters are not inevitable. They need to be proved by evidence.[36]Although Mr Eastaway alleges in one of his witness statements that witnesses’ memories must have dimmed over the lengthy period up to 2001, he does not point to any material allegation for which oral evidence would have been necessary and on which his defence depended. Still less does Mr Eastaway indicate the reasons why that evidence would have deteriorated. Nor does he indicate that the evidence had become unavailable by 2001 for some other reason. In those circumstances, there would have been no sufficient evidential basis for the Vice Chancellor to conclude in 2001 that a fair trial was no longer possible. Moreover, that issue is now academic. Mr Eastaway’s period of disqualification has now expired. There is no issue between him and the Secretary of State now outstanding in the disqualification proceedings and thus there is no live dispute raising the issue for determination by a court as to whether a fair trial would have been possible in 2001. In those circumstances, that issue cannot now be entertained by this court.[37]In his judgment, the judge expressed the view that there were "insuperable obstacles… posed by the doctrine of res judicata” to the submission that the Vice Chancellor should have acceded to the strike out application because of delay (judgment, para, 40). The Secretary of State also suggests on this appeal that it is now too late for Mr Eastaway to assert that there could not have been a fair trial in 2001 and that to raise the point now is an abuse of process within the Henderson v Henderson principle, as described and discussed in Johnson v Gore Wood & Co [2002] 2 AC 1 at 22C – 34G and 58D to 61F. But the point was not fully argued before us. It is not necessary to express a final view on it because of my conclusions on other aspects of the appellant's case. I would in general doubt whether a party can ever be shut out from arguing that a fair trial is not possible where a trial has not taken place. In this case, however, the trial had not taken place because the parties agreed to resolve the matter in another way. (3). The waiver point[38]This point was no doubt thought to be a short cut to the conclusion that it was too late for Mr Eastaway now to raise arguments that the undertaking should be set aside. The argument is probably less short than it might at first glance appear.[39]The Vice Chancellor held that any existing breach of Mr Eastaway's Convention rights was waived by the undertaking given to Hart J and the obligations assumed by Mr Eastaway by that undertaking (judgment para. 23). The Secretary of State submits that this point is now res judicata. Mr Collings submitted to the judge that the Vice Chancellor’s conclusion was inconsistent with the decision of the Strasbourg court, which could not have been given in Mr Eastaway's favour, if there had been a waiver. The judge dealt with this argument as follows: “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. [4] 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)[40]Mr Collings submits that the judge was wrong to conclude that Mr Eastaway had waived his right to complain of a violation of art 6 because he had given the disqualification undertaking. Mr Collings relies on the statement as to the effect of Strasbourg jurisprudence in the opinion of Lord Bingham in Millar vDickson [2002] 1 WLR 1615:
“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 vBelgium (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. … ”
[41]Founding himself on these principles, Mr Collings submits that Mr Eastaway only gave the disqualification undertaking, because the English courts had wrongly failed to find the disqualification proceedings violated his Convention rights and that he had no practical alternative, given that he could not afford the costs of trial. Mr Eastaway stated in his witness statement at the time that he was not competent to represent himself in proceedings as complicated and specialist as these. He described the proceedings as "an unequal struggle" in which he was faced with all the resources of the state. Mr Collings submits that the judge accepted that Mr Eastaway had not waived his Convention rights to the extent that he applied successfully to the Strasbourg court with no waiver point being taken against him.[42]Mr Malcolm Davis White relies on the undertaking given to Hart J in 1999. He submits that by giving the undertaking to Hart J and the disqualification undertaking Mr Eastaway accepted that he could no longer contend that he was entitled to a fair trial of all the issues of fact involved in the disqualification proceedings.[43]I have already held that it is implicit in the Vice Chancellor’s directions for trial that he considered that a fair trial was possible, and that the Vice Chancellor was not asked to deal with a submission that it was not possible to have a fair trial. The judge held that, when the Vice Chancellor referred to "waiver", he was using that expression in a “loose non-technical sense meaning only that Mr Eastaway had entered into a binding agreement with the Secretary of State for the trial to proceed as provided in the Carecraft undertaking and this agreement was totally inconsistent with the relief claimed by the strike out application for delay in breach of article 6" (judgment, para. 42). I am left in doubt as to what the judge meant by “a loose non-technical sense”. But the thrust of the judge’s conclusion is clear and it was that the Vice Chancellor had merely concluded that the undertaking given to Hart J. had become unconditional, and that accordingly Mr Eastaway was bound to sign the agreement statement of facts and to enter into the Carecraft disposal. Even, however, applying this approach, the question would still arise whether the waiver or agreement entered into was in conformity with Convention principles. As I read his judgment, the Vice Chancellor did not apply Convention jurisprudence, and it would follow that his conclusion on waiver could not, as argued by the Secretary of State, constitute res judicata as to waiver for the purposes of article 6 so that the point cannot be raised in these proceedings. The question is not so much whether Mr Eastaway agreed that there should be no trial but whether Mr Eastaway has waived his Convention right to contend that a fair trial was not possible in a manner which would be binding on him under Convention jurisprudence. If not, there was a claim that there was a further violation of art 6 at this point.[44]I have already summarised the Convention principles. The crucial point in this case is that, although Mr Eastaway appeared in person before Hart J, he was represented throughout the proceedings by solicitors and also from time to time by counsel. Prior to the hearing before Hart J, Mr Eastaway’s solicitors wrote to the Treasury Solicitor stating that they had explained the effect of the undertaking to be given to Hart J to Mr Eastaway and asking for their letter to be produced to the court. In addition, the judicial review application issued on 18 August 1999 is signed by two counsel. The whole purpose of the undertakings was to avoid the need for a trial if the proceedings were not struck out for delay. The desire for a trial must therefore have been of no consequence to Mr Eastaway in that event. The fact that he wanted to avoid the cost of being represented, which he could not afford, is the reason why he did not want to have a trial, but it does not mean that his consent to that was under some constraint or misunderstanding. His legal representatives could have advised him if he had a Convention right to the provision of legal representation at any trial. With the benefit of legal advice, he limited his judicial review application, on which the undertaking to Hart J. was conditional and, in addition, his application to the Vice Chancellor, to dismissal of the disqualification proceedings on the grounds of delay.[45]If he had not been legally represented, and if his evidence had been (say) that a court official had advised him unofficially that if he made his application to the Strasbourg court not only on the grounds of delay, but on the ground also that a fair trial was impossible, the court would be likely to make a disqualification order (if there had to be a trial) for a longer period than it would have done if the application had been made on the ground solely of the delay, then there might have been an argument that the decision to apply to the Strasbourg court on the delay ground only was tainted by some constraint. But I hasten to point out that that is not the case put forward by Mr Eastaway.[46]The Strasbourg court has not accepted that the waiver of a right guaranteed by the Convention is always permissible. It has held that any waiver must not run contrary to any important public interest (see for example Bell v UnitedKingdom, application No 41534/9, 16 January 2007). Mr Collings relies on the judgment of Hart J in Re INS Realisations Ltd [2006] 2 AER 902 at [31] to the effect that the court has jurisdiction to set aside a schedule to an order containing a disqualification undertaking where “either some ground is shown which would be sufficient to discharge a private law contract or some ground of public interest is shown which outweighs the importance of holding a party to his agreement”.[47]In this case, it was not obligatory for Mr Eastaway to give the 1999 undertaking or a disqualification undertaking. He was not faced with a choice between a fair trial and none at all or an unfair trial. He was given the option of disposing of the proceedings on mutually agreed terms. It had benefits for him in that it avoided the cost and publicity of a full trial, at which some serious allegations were to be raised. The interests of the public are protected by the provisions of sec 7 of the 1986 Act which enable the Secretary of State to accept a disqualification undertaking only if “it appears to him that it is expedient in the public interest that he should do so (instead of applying, or proceeding with an application, for a disqualification)”. The public interest is also protected by the requirement in sec 18 of the 1986 Act for a register of disqualification orders and undertakings. In those circumstances, I do not consider that there is on the facts of this case an important public interest which prevents the waiver of the right to a fair trial by the giving of either undertaking.[48]Since the 1999 undertaking was given before the application was made to the Strasbourg court, the question whether the making of that application was also a waiver of the right to contend that as a result of the delay there could be no fair trial of the disqualification proceedings does not arise. (4). The victim point[49]Section 7 of the HRA creates a mechanism whereby a person can bring proceedings against a public authority for violation of a Convention right if he has no other means of so doing. But that mechanism is limited to a person who is a “victim”. That term is defined in sec 7(5) (set out above) by reference to that status under art 34 of the Convention (also set out above). As the Strasbourg court has said, the actio popularis does not apply to applications under the Convention. There is no scope for proceedings to be brought by a person who has not himself been affected by the alleged violation (see Klass v Germany (1978) 2 EHRR 214). But victim status under art 34 is to be distinguished from the admissibility criteria under art 35. The fact that a person has made a previous application to the Strasbourg court is dealt with separately under art 35 of the Convention (set out above). Such an application is inadmissible, unless it “contains relevant new information”.[50]Lightman J held that once Mr Eastaway had received compensation from the Strasbourg court he was no longer a “victim” for the purpose of section 7 of the HRA. The basis of the judge's reasoning on this point is not wholly clear but appears to be that Mr Eastaway was not a victim because he had omitted to take an objection on the grounds of fair trial before the Vice Chancellor and had indeed waived his right to do so. If waiver of the right to take this objection were the basis of the judge’s conclusion, I would respectfully agree, though I would also add that the absence of a seriously arguable claim would be another basis for the same conclusion.[51]However, it would not be right to say that because Mr Eastaway had received compensation from the Strasbourg court for his legal costs and for non-pecuniary damage (in the form of distress, anxiety and frustration) that he could not therefore be a victim for the purposes of section 7. That would be to confuse the application of arts 34 and 35 and reflect an erroneous approach to sec 7. A person can be a victim under Strasbourg jurisprudence even though the violation has been brought to an end. Thus, for example, where a violation of the Convention right has been brought to an end but full redress has not been given, a person continues to be a victim for the purposes of art 34. In Guillemin v France (1997) 25 EHHR 435, the applicant had been wrongly deprived of her property and awarded compensation in the French courts. But the compensation had not been paid and accordingly the applicant continued to be a victim for the purposes of art 34. Similarly in Inze v Austria (1987) 10 EHRR 394, the Strasbourg court held that, where a person had been discriminated against by the law of succession because he was illegitimate, he was not precluded by his having agreed to a judicial settlement from claiming compensation under the Convention for loss of property to which he had been unable to succeed because of the discriminatory laws.[52]Likewise, in Re McKerr [2004] 1 WLR 807, the House of Lords held that, the appellant, who claimed that the circumstances of his father's death had not been adequately investigated in violation of art 2 of the Convention but who could not bring proceedings under the HRA because the death had occurred before the HRA came into force, would not have lost the status of victim by reason only that he had been awarded just satisfaction by the Strasbourg court for the frustration, distress and anxiety that he suffered.[53]In the present case, Mr Eastaway claims to be entitled to remedies under national law for the violation of art 6 found by the Strasbourg court. He was only awarded compensation for non-pecuniary damage and for the legal expenses that he had incurred. The Strasbourg court could not grant the same relief as is sought in these proceedings. One of the reasons why it could not grant the relief sought was because, in an appropriate case and subject to any relevant time-bar, the relief could be granted by the domestic court under these circumstances outside art 41 (see above).[54]The definition of “victim” in sec 7(7) turns on whether proceedings could be brought in the Strasbourg court in respect of the act complained of. The act complained of would be the continuance of the disqualification proceedings when no fair trial was possible. Thus the statutory hypothesis in sec 7(7) of the HRA must, in my judgment, be applied not to the proceedings which have already been brought in the Strasbourg court, but to some new proceedings brought on the same basis as his new complaint and at the same time.[55]Mr Eastaway would thus be a victim for the purpose of sec 7 if he had been entitled to assert a seriously arguable claim. In my judgment, however, he is not able to do this for the reasons given in this judgment.[56]In these circumstances, the questions which would otherwise arise under sec 7(5) and sec 22(4) of the Human Rights Act 1998 do not arise, and as they have not been fully argued I do not propose to express a concluded view on them. Suffice it to say that both provisions would seem to me provisionally to bar any claim on the facts of this case. (5). The prejudice point[57]Mr Collings submits that the proceedings could have been on the basis of the prejudice caused to Mr Eastaway because of his professional position described above. But disqualification proceedings inevitably involve prejudice to a professional person, and the evidence is a quite inadequate basis for a conclusion that the prolongation of the proceedings resulted in sufficient substantial prejudice to justify the dismissal of those proceedings. I appreciate that in the Manlon case the disqualification proceedings were struck out because the delay had led to substantial prejudice to the defendant, a businessman. But the evidence in this case consists merely of a paragraph in Mr Eastaway's witness statement asserting prejudice, and that is insufficient for the court to draw any conclusions about what delay, for which the state is responsible, contributed to that prejudice. Accordingly, I would reject this submission. (6). Other bases of jurisdiction[58]Mr Collings submits that the court would have jurisdiction to grant the relief sought in the present appeal on other bases apart from sec 7 of the HRA. In the light of the above conclusions, these submissions do not have to be determined.[59]I wish to add one minor point, made by Mr Malcolm Davis-White, that para. 55 of the judge’s judgment incorrectly proceeds on the basis that Insolvency Rule 7.47(1) applies to disqualification undertakings as well as orders of the court. In fact, that rule applies only to orders made by the court in the exercise of its jurisdiction to wind up companies.

Summary of the position

[60]The principal effect of my conclusions on Mr Eastaway's position may be summarised as follows: 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.

Disposition

[61]For the reasons given above, I would dismiss this appeal.

Rix LJ:

[62]I agree.

Tuckey LJ:

[63]I also agree.

Cited in 2 later judgments