Eastaway v Secretary of State for Trade & Industry

A finding that proceedings breached Article 6 because they exceeded a reasonable time does not automatically make a fair trial impossible or require the proceedings to be struck out. Article 6 rights are separate, so the remedy depends on the right infringed. An applicant seeking strike-out for delay must prove a substantial risk of unfair trial by identifying material evidence and showing that it has materially deteriorated or become unavailable. A Convention-right waiver may be effective where it is voluntary, informed, clear and unequivocal, free from constraint, and consistent with important public interests. Strasbourg compensation alone does not end victim status, but a domestic claim still requires a seriously arguable violation. General professional prejudice is insufficient without proof that delay caused substantial prejudice.

Disqualification proceedings were brought against Mr Eastaway under the Company Directors Disqualification Act 1986. In 2001 he gave an undertaking not to act as a director for four and a half years, and the proceedings were stayed. The Strasbourg court later found that the proceedings had exceeded the reasonable-time requirement in Article 6 and awarded compensation for legal costs and non-pecuniary damage. The undertaking expired on 31 December 2005, but Mr Eastaway claimed continuing professional prejudice and sought a declaration or an order setting it aside.

Lightman J rejected the application by an order dated 2 March 2006, reported at [2006] EWHC 299 (Ch). The appeal concerned whether the Strasbourg finding made a fair trial impossible, whether the undertaking could be challenged or had been waived, whether Mr Eastaway remained a victim for the purposes of section 7 of the Human Rights Act 1998, whether professional prejudice justified relief, and whether Insolvency Rule 7.47(1) supplied jurisdiction.

Lady Justice Arden gave the judgment, with which Lord Justice Rix and Lord Justice Tuckey agreed. The appeal was dismissed.

1. Effect of the Strasbourg judgment. Under section 2(1) of the Human Rights Act 1998, the domestic court had to apply the Strasbourg decision between the parties, which was binding as res judicata. Its effect was confined to the violation actually found: excessive delay in determining the disqualification proceedings. The Strasbourg court had not decided that a fair trial was impossible.
2. Article 6 and delay. The rights to a fair hearing and to a hearing within a reasonable time were separate. A breach of the reasonable-time requirement did not necessarily make a fair trial impossible or require strike-out. An applicant relying on delay had to identify the evidence relevant to the allegations and show a substantial risk of unfair trial. General assertions that memories had faded were insufficient. Mr Eastaway identified no material allegation on which deteriorated or unavailable oral evidence was necessary.
3. Waiver. A waiver of a Convention right had to be voluntary, clear, full and unequivocal, informed, and free from constraint or misunderstanding. It also had to be consistent with important public interests. Mr Eastaway was legally represented, understood the effect of the undertakings, and had chosen an agreed disposal to avoid the cost and publicity of a trial. No contrary public interest was established.
4. Victim status and prejudice. Strasbourg compensation did not automatically terminate victim status under Article 34. Victim status was distinct from Article 35 admissibility and depended on whether a fresh, seriously arguable claim could be made about the act complained of. No such claim existed here. Professional prejudice inherent in disqualification proceedings, without evidence that state-responsible delay caused substantial prejudice, did not justify relief.
5. Jurisdiction. Insolvency Rule 7.47(1) applied only to court orders made in the winding-up jurisdiction. It did not apply to the disqualification undertaking, which was not part of a court order. No declaration or order setting aside the undertaking was therefore made.

• Court of Appeal (Civil Division). The appeal from the order of Lightman J was dismissed: [2007] EWCA Civ 425.
• High Court of Justice (Chancery Division). Lightman J rejected the application to set aside the disqualification undertaking or obtain related relief: [2006] EWHC 299 (Ch).