Restitution
front page

What's new?

Archive front page

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2007

2006

2008

2009

Hi All

Answer to Eoin's query is that Blake did seek to take his case to the European Court on the basis that the order for the account of profits violated his Article 10 rights (and claimed that the Official Secrets Acts of 1911 and 1989 did so as well) and his Article 1 of Protocol No. 1 rights but those parts of the application were ruled to be inadmissible by the decision of the Fourth Section (ie the Court sitting as a Chamber) on 25 October 2005.

They considered that there was an interference with Article 10 but it was reasonably necessary and proportionate and that any development of the law by the House of Lords was a foreseeable development so prescribed by law (see on this cases such as the marital rape case of S v UK).

On Lionel's post, as for Article 6, the procedural law in the UK is now different to when Blake was decided, with the Civil Procedure Rules 1998 which impose stricter duties on the courts to supervise litigation and keep it moving. These have been held to essentially comply with Article 6 (see for example Daniels v Walker [2000] 1 WLR 1382). All those recent European Court cases, of which Blake is an example, predated the Civil Procedure Rules. There are now also equivalent Criminal Procedure Rules. The damages were therefore directed only to the delay in hearing the case.

As regards the State and the European Court, the State could in theory ignore the decision of the Court, as it is a treaty based decision in International Law and not directly enforceable in the UK. However, under the UK's Human Rights Act 1998 the government is a public authority and therefore obliged to act in accordance with the European Convention (s.6(1) of the Act). Thus, it would be likely that a failure to implement a European Court decision would be unlawful, if challenged in the Courts. Although I don't rule out the possibility of the government coming up with some clever legal argument to the contrary if they were to wish not to pay; but invariably the awards of the European Court have been met.

I hope that assists!

David Hoffman
(at least one barrister who is on the list!)

>>Message text by Eoin O'Dell

Dear all,

Thanks to Ralph for bringing this our attention. The ECHR holds that the case took so long that Blake's Article 6 right to a fair trial was infringed. I wonder whether the case also raises another potential Convention point. We know from Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442 that if damages are too high in defamation cases, even if there is properly an underlying cause of action, a disproportionate remedy can still be a breach of Article 10's protection of freedom of expression. Since I heard that Blake had gone to the Court on Article 6 grounds, I have occasionally idly mused whether a similar point might have been made there: that although there was properly an underlying cause of action for breach of contract, nevertheless the account ordered by the House of Lords was so disproportionate that there was a breach of Blake's Article 10 rights to publish his memoirs.

There's quite a bit of EHCR law on disproportionate defamation damages infringing Article 10; and there is similar US First Amendment jurisprudence both in respect of libel, and (in Snepp v US 444 US 507 (1980); noted on this kind of point by Birks [1987] LMCLQ 421) on facts similar to Blake; but there is nothing directly on this issue in the ECHR, so it seems to be a straightforward question of principle, to which my idle musings produced no clear answer.