European Court of Human Rights: solicitor did not exhaust domestic remedy
The European Court of Human Rights (ECtHR) has rejected the case of a solicitor who said the Solicitors Regulation Authority (SRA) deprived him of the chance to challenge the decision to close down his law firm.
In a ruling issued yesterday – nearly four years after the case was lodged by Christopher Gadd – the court declared his application inadmissible because he did not exhaust the domestic remedy to his problem.
He failed to exercise his statutory right under the Solicitors Act 1974 to challenge the intervention in the High Court within eight days and the ECtHR did not consider that there were special circumstances justifying this decision.
Southampton-based Christopher Gadd Limited was closed by the SRA on 7 December 2009, largely because of the actions of a dishonest partner at his previous firm, WB Legal, for which his was the successor practice.
On 21 December 2009, the SRA disclosed the forensic investigation unit (FIU) report that underlay the intervention, but it was not until 6 December 2010 that Mr Gadd issued a claim against the SRA for damages under the Human Rights Act.
He argued that his article 6 right to a fair trial was breached by the eight-day limitation period, which he argued precluded effective access to the courts – especially as he had not received the FIU report during that time. He also claimed that impecuniosity was why he did not start his action sooner.
Mrs Justice Sharp ordered summary judgment in favour of the SRA, a decision upheld by the Court of Appeal.
The appeal court did recognise that there might be exceptional circumstances where the eight-day period could be extended, but said they did not exist in this case.
With regard to impecuniosity, the CA said the solicitor could have represented himself and did not necessarily need legal assistance.
While it was “difficult to understand” why the FIU report was not made available to Mr Gadd at the time of intervention, and there was “some merit” in the contention that it may have been difficult for him to challenge it until he received the report, that did not explain why he waited a year to take action.
Lord Justice Elias said: “There is no reasonable prospect for saying that [the Solicitors Act] could be read down so as to allow a challenge so much later than the period specific in that rule.”
The ECtHR is not bound by the findings of domestic courts, but will normally require “cogent elements to lead it to depart from their findings of fact”.
Here, it said, Mr Gadd had failed to provide any to justify departing from the English courts’ conclusions concerning either his impecuniosity or his ability to deal with the allegations against him without access to legal assistance.
“Of greater concern is the fact that the report setting out the reasons for the intervention was only served on the applicant on 21 December 2009, some days after the expiry of the time-limit for challenging the intervention,” the ECtHR said, echoing the Court of Appeal.
However, it agreed with the English courts that, even without the report, Mr Gadd had enough information to challenge the intervention within the eight days.
The ECtHR said: “Were this not the case, Mrs Justice Sharp observed that the applicant could have asked for a copy of the report during the eight-day window for challenging the intervention.
“Alternatively, he could have attempted to challenge the intervention following receipt of the report, and asked the High Court to exercise its discretion exceptionally to extend the time-limit in order to give practical effect to his convention rights…
“In the present case, the Court of Appeal did not exclude the possibility that the eight-day time-limit could be read down in exceptional circumstances…
“The court is not persuaded that either the applicant’s alleged impecuniosity or the failure to disclose the report within the eight-day time-limit amounted to ‘special circumstances’ absolving him from exhausting this remedy.”
Mr Gadd said: “I am saddened that the court has reached the decision that they have which is made worse by the fact that they have been misled.”
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