Day 157 - 18 Jul 95 - Page 48


     
     1             English legal aid scheme excludes assistance in
     2             defamation proceedings has not been shown to be
     3             arbitrary in the present case.
     4
     5             The question remains, therefore, whether despite
     6             the absence of legal aid for defamation
     7             proceedings the applicant was effectively being
     8             denied access to court contrary to article 6.1."
     9
    10        Then goes on the actual decision in this case, the
    11        Defendants' application to the Commission:
    12
    13             "The Commission considers that this general
    14             approach to the question of access to court is
    15             not affected by the litigant status, as either
    16             plaintiff or defendant.
    17
    18             Turning to the facts of the present case, it has
    19             not been shown that the applicants are being
    20             denied effective access to court as litigants in
    21             persons, albeit inexperienced.  They seem to be
    22             making a tenacious defence against McDonald's
    23             despite the absence of legal aid, the complexity
    24             of the procedures and the risk of an award of
    25             damages against them if they are found to have
    26             libeled McDonald's.  The Commission finds,
    27             therefore, that the unavailability of legal aid
    28             to defend defamation proceedings in the present
    29             case has not deprived the applicants of access
    30             to court contrary to article 6.1.  It follows
    31             that this part of the application is manifestly
    32             ill-founded within the meaning of article 27.2."
    33
    34        My Lord, then one can, skipping out the next number 2 which
    35        is about article 10, go to the bottom of the page,
    36        paragraph 3:
    37
    38             "The applicants next complain that they have
    39             been discriminated against on grounds of wealth
    40             in the protection of their articles 6 and 10
    41             rights contrary to article 14.  They contend
    42             that the lack of legal aid simplified the
    43             procedures or restrictions on damages amounts to
    44             a breach of article 14 of the Convention, in
    45             that those who can afford to pay for legal and
    46             expert advice, assistance and representation are
    47             better able to secure and defend their rights
    48             under articles 6 and 10 of the Convention than
    49             those without financial resources.
    50 
    51             The Commission acknowledges that in most 
    52             circumstances wealthy people are better able to 
    53             defend their rights.  However, the Commission
    54             has also recognised above that it is reasonable,
    55             given the limited financial resources of most
    56             civil aid legal schemes, to establish priorities
    57             which may exclude defamation litigation given
    58             its risky nature and the difficulty in
    59             accurately predicting its outcome.
    60

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