(1) European Commision Application
(2) European Commision Ruling

I. THE PARTIES.

A. THE APPLICANTS.
1. Name of Applicants: (1) Helen Marie Steel and (2) David Morris.
2. Nationality: British (both Applicants).
3. Occupation: Unemployed (both Applicants).
4. Date and Place of Birth: (1) Helen Marie Steel, born l965, England and (2) David Morris, born 1954, England.
5. Permanent Address: (1) Helen Marie Steel and (2) David Morris, [address omitted] Tottenham, London
6. Present Address: as above (both Applicants).
7. Name of Representative: John Wadham.
8. Occupation of Representative: Solicitor.
9. Address and Telephone Number of Representative:
c/o The National Council of Civil Liberties, 21 Tabard Street, Borough, London SE1.
071 403 3888 (fax: 071 407 5354).
10. The High Contracting Party: The United Kingdom.

II. STATEMENT OF THE FACTS.

1. On 20th September l990, McDonald's Corporation and McDonald's Restaurants Limited issued a writ in the High Court of Justice in London against both Applicants. In the writ, McDonald's Corporation and McDonald's Restaurants Limited claim damages from each Applicant for an alleged libel in a leaflet entitled 'Whats wrong with McDonald's ?' and an injunction restraining each Applicant from publishing or causing to be published the said leaflet or similar publication.

2. McDonald's Corporation is the proprietor of the well known McDonald's restaurant chain in the United States of America and throughout the rest of the world.

McDonald's Restaurants Limited is responsible for managing McDonald's restaurants within the United Kingdom. Together, McDonald's Corporation and McDonald's Restaurants Limited make a profit each year which runs into many millions of dollars or pounds.

3. The Applicants are both unemployed. Their weekly income and outgoings are as follows:

Helen Marie Steel.
Income:         stlg42.45   (income support).
                stlg23.00   (housing benefit).
Outgoings:      stlg30.00   (rent)
                stlg20.00   (food).
                stlg5,00    (fuel/electricity),
                stlg2.00    (laundry).
                stlg4,00    (clothing/miscellaneous).
                stlg3.40    (travel).

David Morris.
Income:         stlg42.45   (income support).
                stlg59      (housing benefit).
Outgoings:      stlg60      (rent).
                stlg20      (food).
                stlg10      (fuel/electricity).
                stlg10      (miscellaneous).

Each week the First Applicant, Helen Marie Steel has a disposable Income of stlg1.05, and the Second Applicant, David Morris has a disposable income of stlg1.45.

4. The leaflet complained of by McDonald's Corporation and McDonald's Restaurants Limited raises issues about their business practices. In particular:

(a) whether or not McDonald's have been or are responsible for environmental damage in developing countries,

(b) whether or not there is a link between the businesses of multinationals such as McDonald's and starvation and/or malnutrition in the developing world:

(c) whether or not McDonald's-food is healthy and/or nutritious;

(d) the ethics and/or effect of McDonald's advertising campaigns;

(e) the responsibility of McDonald's for the slaughter of animals and the methods used to carry out: that slaughter,

(f) the working conditions of McDonald's employees and McDonald's attitude to trade unions.

4. Faced with the claim by McDonald's Corporation and McDonald's Restaurants Limited, the Applicants consulted solicitors - B.M.Birnberg & Co., of 103, Borough High Street, London Bridge, London SE1 1NN - who assisted the Applicants to draft a Defence to the claim by McDonald's Restaurants Limited. Amongst other matters, the Applicants raised justification and/or fair comment in their Defence. T he Applicants were then advised that since legal aid was not available for libel actions, their solicitors could no longer advise and/or represent them. Neither Applicant has sufficient resources to instruct solicitors privately.

5. Between about December 1990 and November 1992, the Applicants have conducted their case themselves. Pleadings have no exceed 100 pages and are annexed to this Application (no.1). It can be seen th at numerous and complex issues of fact and law have arisen. The Applicants do not feel able to conduct their case without legal and expert advice, assistance and representation. Furthermore, quite ap art from any question of legal advice and assistance, the cost of continuing with their Defence is continually increasing for each Applicant. For example, McDonald's Corporation and McDonald's Restau rants Limited have sought Interrogatories from each Applicant. Unless, the Court directs otherwise, each Applicant must answer these Interrogatories on affidavit. The usual cost of swearing an affida vit is stlg3.50 and an additional stlg1 must be paid for every exhibit annexed to an affidavit. Neither Applicant can afford this. However, if the Applicants fail to answer the Interrogatories, their Defen ce to the claim made against them may be struck out.

6. On 5th May 1992, each Applicant applied to the Legal Aid Board for legal advice and assistance in conducting their case. The Applicants made clear that their case raised important issues of free s peech. A copy of their letter of application and application forms are annexed to this Application (no. 2). On 3rd June 1992, the area manager of the London Legal Aid Area Office wrote to each Applic ant refusing their application on the grounds that legal aid is not available for libel proceedings because such proceedings are not included in Part I of Schedule 2 of the Legal Aid Act 1988. The ar ea manager also informed the Applicants that there is no right of appeal against his refusal of legal aid. A copy of the letter from the area manager to each Applicant refusing their application is a nnexed to this Application (no.3).

III. STATEMENT OF ALLEGED VIOLATIONS OF THE CONVENTION AND OF RELEVANT ARGUMENT.

1. The Applicants are Defendants in the case brought by McDonald's Corporation and McDonald's Restaurants Limited against them. They had no choice or control over either the bring or the form of the proceedings.

2. The case between the Applicants and McDonald's Corporation and McDonald's Restaurants Limited concerns fundamental issues of free speech. McDonald's Corporation and McDonald's Restaurants do not c laim that either Applicant wrote or printed the leaflet in question. Rather, they claim that the First Applicant handed out the leaflet and that the Second Applicant attended meetings at which the le aflet was made available.

3. The Applicants are unable to conduct their Defence effectively with legal and expert advice, assistance and representation for the following reasons;

(a) The law of libel is complex by its very nature (and an action in libel can usually only be heard in the High Court);

(b) The facts in dispute are complex and cover a number of different issues, the proof of some facts will require evidence from abroad;

(c) Expert evidence will be needed on a number of different issues, including nutrition and advertising:

(d) Witnesses for McDonald's Corporation and McDonald's Restaurants Limited will have to be carefully cross-examined;

(e) Witnesses for Applicants will have to be interviewed and their statements prepared in advance of the trial hearing;

(f) Numerous pre-trial matters will have to be dealt with, for example, affidavits will have to be vital documents photocopied , and interlocutory hearings attended;

(g) Without legal and expert advice, assistance and representation, the Applicants may not know what measures to take prior to trial, such as for example, applications for specific discovery .

3. McDonald's Corporation and McDonald's Restaurants Limited have been advised and represented by specialist libel solicitors and counsel at all stages of the proceedings. They have the resources to bring witnesses to court and to instruct experts from anywhere in the world.

4. If the Applicants fail in their Defence against McDonald's Corporation and McDonald's restaurants Limited they will be liable to pay damages to them and pay their costs. Damages in libel cases in England are unlimited and are renowned for their magnitude, often running into tens or even hundreds of thousands of pounds. Costs are also likely to run in to tens of thousands of pounds.

5. Furthermore, if the Applicants fail in their Defence against McDonald's Corporation and McDonald's Restaurants Limited they will be subjected to a permanent injunction preventing them from publishing or causing to be published the leaflet in question or any similar publication. If the Applicants were to breach such an injunction they could be fined or sent to prison. Proceedings for breach of the injunction would be quasi-criminal.

6. Furthermore, although the proceedings brought by McDonald's Corporation and McDonald's Restaurants Limited are civil proceedings, if the Applicants fail in their Defence, the judgement of the court will be tantamount to a finding that the Applicants have committed the common law offence of criminal 1ibel .

7. Section 14 and Schedule 2 of the Legal Aid Act 1988 preclude any legal aid for libel proceedings. This preclusion is arbitrary - the Legal Aid Board have no discretion to take into account, either:


(a) the means of the parties to libel proceedings; or
(b) the complexity of the case; or
(c) the seriousness of the consequences for the Applicants should they lose the case.


8. If legal aid was available in respect of libel proceedings, the Applicants would undoubted}y quality. If granted, legal aid would cover both legal fees and the inevitable costs of litigation (for example preparing statements, obtaining expert: evidence, swearing affidavits and photocopying vital documents).

9. The Applicants claim that the United Kingdom is in breach of Article 6(1) of the Convention in that in the determination of their civil rights and obligations, the Applicants will not have a fair trial. In particular, they will not be able to prepare and ultimately present their case properly and effectively, Furthermore, the inequality between McDonald's Corporation and McDonald's Restaurants Limited and the Applicants is such that no trial can be fair.

10. In establishing a breach of Article 6(1), the Applicants particularly rely upon the following:

(a) The United Kingdom's statutory prohibition on the availability of legal aid to Defendants in libel proceedings.

(b) The failure of the United Kingdom to make any other provision to assist Defendants in libel proceedings.

(c) The failure of the United Kingdom to take any step to limit the costs, damages and/or scope of relief in libel proceedings.

(d) The Failure of the United Kingdom to amend libel law and simplify libel proceedings.

11. The initiation of libel proceedings against the Applicants by McDonald's Corporation and McDonald's Restaurants Limited, constitutes an interference with the Applicants rights under Article 10 of the Convention, in particular the right to receive and impart information and ideas. The Applicants highlight the fact that they are threatened with a permanent injunction prohibiting them from imparting information and ideas, which is enforceable by means of a fine and/or imprisonment.

10. This interference can only be justified in so far as it accords with Article 10(2) of the Convention. The extent to which the Applicants' rights under Article 10(1) can be restricted under Article 10(2) can only be properly determined if the Applicants have effective access to the courts in their defence of the proceedings brought against them. without effective access to the courts by any party whose rights under Article 10(1) are threatened, the breach of Article 10(2) cannot be 'prescribed by law'.

12. The Applicants rely upon the following in support of their claim tbat the United Kingdom is responsible for the breach of Article 10 of the Convention.

(a) The United Kingdom's statutory prohibition on the availability of legal aid to Defendants in libel proceedings.

(b) The failure of the United Kingdom to make any other provision to assist Defendants in libel proceedings.

(c) The failure of the United Kingdom to take any step to limit the costs, damages and/or scope of relief in libel proceedings.

(d) The Failure of the United Kingdom to amend libel law and simplify libel proceedings.

13. The Applicants claim that the statutory prohibition on the provision of legal aid and/or the prohibition on - any right of appeal and/or the prohibition on any exercise of discretion by the Legal Aid Board in determining applications for legal aid in libel proceedings amounts to a breach of Article 13, in that they have no effective remedy for the breach of; Article 6(1) or Article 10(1)

14. The Applicants claim that the statutory prohibition on the provision of legal aid and/or the failure of the United Kingdom to make any other provision to assist Defendants in libel proceedings and/or take any step to limit the costs, damages and/or scope of relief in libel proceedings and/or to amend libel law and simplify libel proceedings amounts to a breach of Article 14 in that those who can afford to pay for legal and expert advice, assistance and representation are better able to secure and defend their rights under Article 6 and 10 than those without financial resources.

IV. STATEMENT RELATIVE TO ARTTCLE 26 OF THE CONVENTION.

1, Final Decision: the decision of the area manager of the London Legal Aid Area Office dated 3rd June 1992 refusing the Applicants applications for legal aid.

2. There is no right of appeal from their decision.

3. Since no discretion is vested in the Legal Aid Board in determining applications for legal aid in libel proceedings, no appeal by way of judicial review is available to the Applicants.

4. Whilst there has been no final determination of the proceedings between McDonalds' Corporation and McDonald's Restaurants Limited and the Applicants, the Applicants contend that their rights under Articles 6, 10, 13 and 14 have already been violated in that they cannot prepare for the trial of the proceedings brought against them. The breaches of Articles 6, 10, 13 and 14 will continue up to and including the full trial of the proceedings between McDonalds' Corporation and McDonald's Restaurants Limited and the Applicants

V. STATEMENT OF THE OBJECT OF THE APPLICATION.

1. To oblige the United Kingdom to bring its law into conformity with the convention by either:
(a) Removing the statutory prohibition on the provision of legal aid in libel proceedings: and/or

(b) Making other provision to assist Defendants in libel proceedings; and/or

(c) Taking steps to limit the costs, damages and/or scope of relief in libel proceedings, and/or

(d) Amending libel law and simplifying libel proceedings.

2. To enable the Applicants to properly Defend the case brought against them by McDonalds' Corporation and McDonald's Restaurants Limited.

3. To limit the ability of persons or bodies with considerable financial resources to restrict the freedom of speech and expression of those persons or bodies without sufficient financial resources to effectively defend those freedoms.

VI. STATEMENT CONCERING OTHER INTERNATIONAL PROCEEDINGS.

1. No other complaints have been submitted to any other international body.

VII. LIST OF DOCUMENTS.

1. The following documents are annexed to this Application:
(1) Copy of the pleadings in the case brought by McDonalds' Corporation and McDonald's Restaurants Limited against the Applicants;

(2) Applicants' letter of application for legal aid dated 5th May 1992 and application forms:

(3) London Legal Aid Office letter- refusing Applicants' application for legal aid dated 3rd June 1992.

VIII. ARTILCE 50

The Applicants claim under Article 50:
(a) compensation to cover to costs of Defending the case brought against them by McDonalds' Corporation and McDonald's Restaurants Limited: and/or

(b) compensation to cover any award of damages made against .them in favour of McDonalds' Corporation and McDonald's Restaurants Limited;

(c) costs of bringing this application before the European Commission and Court of Human Rights:

(d) legal aid in respect of the bringing of this application before the European Commission and Court of Human Rights




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Now follows the ruling of the European Court (without a full hearing), which decided that the defendants couldn't claim they were being denied access to justice, because they had put up too much of a fight!

"Turning to the facts of the present case, it has not been shown that the applicants are being denied effective access to court as litigants in person, albeit inexperienced. They seem to be making a tenacious defence against McDonald's, despite the absence of legal aid, the complexity of the procedures and the risk of an award of damages against them if they are found to have libelled McDonald's. The Commission finds, therefore, that the unavailability of legal aid to defend defamation proceedings in the present case has not deprived the applicants of access to court contrary to Article 6(1) of the Convention."


S. AND M.
v.
UNITED KINGDOM

(Defamation Proceedings; equality of cases)

App. No. 21325/93
May 1993




The Facts:

The applicants produced a leaflet entitled "What's wrong with McDonald's?, dealing with certain of McDonald's business practices in the context of, inter alia, environmental damage, starvation and malnutrition in developing countries, advertising ethics, the slaughter of animals, staff working conditions and McDonald s attitude to trade unions.

McDonald's are in the process of suing the applicants for libel damages and a permanent injunction against the applicants to prevent them repeating the alleged libel.

The applicants are defending themselves in matters of some complexity and have sought legal aid, It was refused on 3 June 1992 because legal aid is not available for defamation proceedings, not being in the schedule of proceedings envisaged by the Legal Aid Act 1988. An appeal to the public has apparently been made for voluntary funding of the applicants' case, which seems to have aroused media interest.




COMPLAINTS:

The applicants complain that they are being denied effective access to court under Article 6 of the Convention to defend their right to free speech. They feel they are unable to defend themselves without legal aid, expert advice, assistance and representation against such a weighty adversary as McDonald's.

The applicants also complain that the initiation of proceedings against them by McDonald's constitutes an unjustified interference with their Article 10 freedom of expression, in particular their right to receive and impart information and ideas. The failure of the United Kingdom to provide legal aid or simplified procedures, Or to limit the amount of damages which could be awarded in such defamation proceedings also constitutes a breach of Article 10 of the Convention.

The applicant's invoke Article 6 of the Convention, Article 14 of the Convention (wealth discrimination) and Article 13 of the Convention, alleging a lack of effective domestic remedies for their Convention claims. The applicants seek to distinguish their case from the Commission's previous case law in which the absence of legal aid in defamation cases was not found to breach Article 6 of the Convention, because in their case they did not initiate the defamation proceedings, but are the unwilling defendants in a case brought against them by a large business.



THE LAW:

1. The applicants have complained that they are denied effective access to court by virtue of an absence of legal aid or simplified procedures for defamation proceedings and the possible unlimited nature of an award of damages.


Article 6(1) of the Convention guarantees a fair hearing in the determination of civil rights and obligations and, implicitly, access to court.24 Although the Convention does not guarantee a right, as such, to legal aid in civil cases, effective access to court must be ensured.

The means by which a State does so is within its margin of appreciation.

The Commission has already had occasion to consider the lack of legal aid for defamation proceedings in the English legal aid scheme and it has held as follows:


GOLDER v. UNITED KINGDOM (A/18) (1979-80)1 E.H.R.R. 225.
AIREY v. IRELAND (A/32): (197980) 2 E.H.R.R. 305 para. 18 E.H.R.R. C.D. CD 173

The Commission notes that even where legal aid may be available for certain types of civil action, it is reasonable to impose conditions on its availability involving, inter alia, the financial situation of the litigant or the prospects of success of the proceedings.

The Commission considers, similarly, that, given the limited financial resources of most civil legal aid schemes, it is not unreasonable to exclude certain categories of legal proceedings from this form of assistance. The fact that the English legal aid scheme excludes assistance in defamation proceedings has not been shown to be arbitrary in the present case. The question remains, therefore, whether, despite the absence of legal aid for defamation proceedings, the applicant was effectively denied access to court, contrary to Article 6 para.1 of the Convention.

The Commission considers that this general approach to the question of access to court is not affected by the litigant's status as either plaintiff or defendant. Turning to the facts of the present case, it has not been shown that the applicants are being denied effective access to court as litigants in person, albeit inexperienced. They seem to be making a tenacious defence against McDonald's, despite the absence of legal aid, the complexity of the procedures and the risk of an award of damages against them if they are found to have libelled McDonald's. The Commission finds, therefore, that the unavailability of legal aid to defend defamation proceedings in the present case has not deprived the applicants of access to court contrary to Article 6(1) of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 27(2) of the Convention.


2. The applicants have next complained that the institution of libel proceedings against them by McDonald's, as well as the combined effect of a lack of legal aid, simplified procedures or restrictions on damages, constituted an unjustified interference with their freedom of expression ensured by Article 10 of the Convention.


The Commission notes, first, that it has no competence to deal with that aspect of the complaint directed against McDonald's, being a private company not incurring the State's responsibility under the Convention. Secondly, it notes, that the freedom conferred by Article 10 of the Convention is not of an absolute, unfettered nature. It does not authorise the publication of defamatory material. On the contrary. the second paragraph of Article 10 offers specific protection for "the reputation or rights of others".

McDonald's are, therefore, entitled to seek the determination of their civil rights to a good reputation and, if successful, the protection of that reputation against an alleged libel. Similarly the applicants are entitled to defend themselves against McDonald's writ in the determination of their civil right to free speech and fair comment in matters of public interest. The Commission does not find that the matters which may involve the responsibility of the respondent Government under the Convention, namely a lack of legal aid, simplified procedures or restrictions on damages. essentially interfere with the applicants' freedom of expression. They have published their views, upon which there was no prior restraint, and, if those views are subsequently found to be libellous, any ensuing sanctions would in principle be justified for the protection of the reputation and rights, within the meaning of Article 10(2) of the Convention.

The Commission considers, therefore, that the present case does not disclose any appearance of a violation of Article 10 of the Convention. It follows that this aspect of the case is manifestly ill-founded within the meaning of Article 27(2) of the Convention.
3. The applicants next complain that they have been discriminated against on grounds of wealth in the protection of their Articles 6 and 10 rights, contrary to:


26 cf No. 8158/78, 21 D.R. 95.
27 cf No.10871/84 WINER V. UNITED KINGDOM 48 D.R. 154. CD174 E.H.R.R.-COMMISSION SUPPLEMENT simplified
Article 14 of the Convention.
They contend that the lack of legal aid, procedures or restrictions on damages amounts to a breach of Article 14 of the Convention, in that those who can afford to pay for legal and expert advice ~ assistance and representation are better able to secure and defend their rights under Articles 6 and 10 of the Convention than those without financial resources.

The Commission acknowledges that in most circumstances wealthy people better able to defend their rights. However the Commission has also recognised above (p.4) that it is reasonable, given the limited financial resources of most civil legal aid schemes, to establish priorities which may exclude defamation litigation given its risky nature and the difficulty in accurately predicting its outcome.

For the same reasons, the Commission considers that it has not been shown to be 3 unreasonable or arbitrary to give low priority to any reform of litigation procedures in defamation, however desirable such reform may be. Furthermore, the Commission does not consider that the lack of restriction on any award of damages affects the applicants, who claim to be unemployed and penniless. Should they lose the defamation case, account would be taken of their income in any attempt to enforce an overburdensome award.

In the circumstances, the Commission finds that there are reasonable and objective, grounds for the State not to provide special assistance to litigants in defamation proceedings. It follows that this part of the application is manifestly ill-founded within the meaning of Article 27(2) of the Convention.


3. Finally the applicants complain of a breach of Article 13 of the Convention which guarantees an effective domestic remedy for breaches of the Convention.

However, the case law of the Commission establishes that Article 13 does not require a remedy in domestic law for all claims alleging a breach of the Convention; the claim. must be an arguable one.29 In the light of the above conclusions concerning the applicants' complaints under Articles 6, 10 and 14 of the Convention. the Commission finds that the applicants do not have an arguable claim of a breach of these provisions which warrants a remedy under Article 13

This part of the application must also, therefore, be rejected as being manifestly 'ill-founded within the meaning of Article 27(2) of the Convention.
Held: First Chamber, by majority, Articles 6, 10, 13 and 14; complaints inadmissible.