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Report No. 192

Three Human Rights cases - Ebert, Mathews and Bhamjee

Chadwick and Buxton JJ in Ebert v. Official Receiver, 2001(3) ALL ER 942 (CA) decided a typical case in the Court of Appeal. They said, adverting to the decisions of the European Court and the provisions requiring leave of court in section 42 of the 1981 Act, as follows:

"The detailed and elaborate procedures operated under section 42 of the 1981 Act respect the important ECHR values that procedures relating to the assertion of rights should be under judicial rather than administrative control; that an order inhibiting a citizen's freedom should not be made without detailed inquiry; that the citizen should be able to revisit the issue in the context of new facts and of new complaints that he wishes to make; and that each step should be the subject of a separate judicial decision. The procedures also respect proportionality in the general access to public resources, in that they seek to prevent the monopolization of court services by a few litigants; our aim, and the national arrangements to implement it, that the Strasbourg organs, applying the doctrine of merging of applications, are likely to respect".

The Judges also pointed out that in H M Attorney General v. Mathews (The Times, 2 March 2001), the Divisional Court had also held that the procedure leading to an order under section 42 was in conformity with the requirements of Art 6 of the European Convention.

In Bhamjee v. David Fordstick, 2004 (1) WLR 88, the Master of Rolls, Lord Phillips (speaking for himself, Brooke and Dyson JJ) explained the law on the subject exhaustively.

He first referred to Ebert v. Official Receiver, 2001 EWCA Liv 340 (2002 (1) WLR 32) (25th July 2003) where the Court held that section 42 was convention compliant. The learned Judge referred to the observations of Lord Woolf in Ebert v. Venvil, 1999(3) WLR 670 to a similar effect. The cases under the Strasburg jurisprudence in Golder v. UK (A/18) 1 EHRR 524: Ashingdane v. UK, (A/93)(1985) 7 EHRR 528; Tolstoy - Miloslavask v. UK, (A/323)(1995) 20 EHRR 442 were referred to for the principle that a court might regulate the access to justice in such a way that its processes are not abused.

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