Although this blog is primarily devoted to the UK Supreme Court, we will comment from time to time on important decisions of other Courts.  We draw attention to a decision today of the Grand Chamber Court of Human Rights in the case of the Maltese washing line, Micallef v Malta.

The facts are slightly unusual for a Grand Chamber case.  It involved a complaint concerning an application for interlocutory injunction to restrain Mrs M from hanging clothes out to dry over a courtyard.  The injunction was issued at a hearing in July 1985 at which Mrs M was not present and of which she did not have notice.  In March 1992 a court granted a final injunction on the merits: Mrs M was indeed unlawfully hanging out her washing.  This final determination on the merits was not challenged.  But Mrs M and her redoubtable lawyer Dr Azzopardi had other irons in the fire.  

In December 1985 Mrs M had issued separate proceedings complaining about the issue of an interlocutory injunction in her absence. These proceedings succeeded at first instance, but failed before the Court of Appeal in 1993.  This hearing was controversial.  The presiding judge was the brother of the other party’s first instance lawyer and the uncle of his lawyer on the appeal.  Things did not go well for Mrs M’s lawyer.  The details are not relevant for present purposes but the webcast of the Grand Chamber hearing casts interesting light on what took place.    Mrs M then lodged constitutional proceedings in Malta which still had not been determined when she died in 2002.   The Civil Court dismissed the action (continued by her brother) as frivolous and vexatious and in 2005, the Constitutional Court agreed, pointing out that there was no appeal against such a dismissal.  

An application was lodged in Strasbourg on 15 April 2006.   Mr Micallef succeeded before a Chamber of the Fourth Section, in a 4:3 decision, with the majority ducking the question as to whether Article 6 applied to interlocutory proceedings at all.  The case was referred to the Grand Chamber where, by 11 votes to 6 it was held that there was a violation of Article 6 on the ground that there was an objectively justified fear of a lack of impartiality in the court of Appeal.

Four judges of the Grand Chamber (including the President, Judge Costa) clearly thought the case absurd, commenting that

“the disproportion between the triviality of the facts and the extensive use – or rather over-use – of court proceedings is an affront to good sense especially as serious human rights violations subsist in a number of States Parties.  Is it really the role of our Court to determine cases such as this?”

It is difficult to not to have sympathy with this view.  

In all, six judges were of the view that Mr Micallef – as the brother of someone against whom an injunction had been (rightly) granted more than 20 years before the lodging of the application – was not a “victim” for the purposes of Article 34 of the Convention.  However the majority further liberalised the rules of standing under the Convention.  This is an important development but not the point of principle which makes the case worthy of note.

But the important point of principle lies elsewhere.  It concerned the application of Article 6 to interlocutory proceedings.  The Maltese government raised the preliminary objection that Article 6 could not apply as it concerns only the “determination of civil rights and obligations” and no such determination took place at the interlocutory stage (which was the stage being challenged in the domestic courts).  The Grand Chamber noted that

Preliminary proceedings, like those concerned with the grant of an interim measure such as an injunction, are not normally considered to determine civil rights and obligations and do not therefore normally fall within the protection of Article 6 (para 75).

However, having considered the “widespread consensus” among member states, the Court decided that “a change in the case law is necessary” and that a new approach to iinterim decisions was needed under Art 6 (para 81-82).  It held that Article 6 will apply to interim decisions if two conditions are fulfilled:

First, the right at stake in both the main and the injunction proceedings should be “civil” within the autonomous meaning of that notion under Article 6 …

Second, the nature of the interim measure, its object and purpose as well as its effects on the right in question should be scrutinised.  Whenever an interim measure can be considered effectively to determine the civil right or obligation at stake, notwithstanding the length of time it is in force, Article 6 will be applicable” (paras 84-85)

The Court entered one caveat that there may be “exceptional circumstances” in some cases, where the effectiveness of the measure depends upon a rapid decision – it may not be possible immediately to comply with all the requirements of Article 6 (para 86).   

This decision has important implications for all interim proceedings before the English courts.  Whenever there is an “effective determination of a civil right” (as there will be, for example, in injunction or disclosure cases) then, unless there are exceptional circumstances, the full range of Article 6 guarantees will apply.

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