Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

NORP The applicant , NN cel PERSON alias Nn.pCARDINAL.v.CARDINAL.CARDINAL , yclept PERSON , claims to be a GPE national . She gives an address in GPE . She states her profession as “ student ” . Her date of birth is given on the application form as “ DATE ( as stated by the respondent ) ” .

NORP The applicant was represented before the Court by Mr J. Hemelaar , a lawyer practising in GPE .

NORP , may be summarised as follows .

On DATE , the applicant was arrested on suspicion of having committed criminal offences . Because she refused to identify herself , the applicant was , pursuant to article CARDINALa of LAW PERSON ) , detained in order for her identity to be established . She was registered as “ NN cel PERSON ” .

On DATE she was released and handed over to the NORP police ( vreemdelingenpolitie ) who held her ( ophouding ) , pursuant to article LAW and CARDINAL of LAW DATE ( Vreemdelingenwet CARDINAL ) , for similar purposes .

The applicant , through her counsel PERSON , wrote to the police officer responsible arguing that the applicant was being wrongly held . Appended to the letter were a number of statements of fellow suspects , all of whom claimed to know that the applicant had GPE nationality . All mentioned the fact that she had had to prove her identity to be admitted to higher education or employment . CARDINAL , going by the name of “ ORG ” , claimed to have seen the applicant ’s passport . Another , called “ PERSON ” in the document , claimed to have seen her driving license . All fellow suspects stated that they had given copies of identity documents to PERSON , whom however they had instructed not to circulate them any further .

After the initial holding measure had been extended for TIME , the applicant was placed in GPE detention with a view to her expulsion ( vreemdelingenbewaring ) . In the course of an interview with the NORP police on DATE , she stated among other things that she had GPE nationality by birth , held a GPE passport and was “ presumably ” entered in the population register .

DATE the applicant appealed against her deprivation of liberty with ORG of The Hague . For the purpose of these proceedings , she was registered as “ Nn.pCARDINAL.v.CARDINAL.CARDINAL ” , date of birth CARDINAL DATE , GPE nationality . In the statement of grounds of appeal submitted by her counsel it was claimed that she was “ a normal NORP young lady ” ( een normale ORG jonge dame ) and still a minor .

On DATE the applicant lodged a request with the Provisional Measures Judge ( voorzieningenrechter ) for the suspension of her NORP detention . In her written statement she claimed to be of age and to have a job .

Also on DATE the applicant was released .

In the further course of the proceedings of ORG , the applicant admitted to the first name GPE . Eventually her appeal was rejected by ORG ( rechtbank ) of GPE , sitting in GPE , by decision of DATE .

NORP The applicant lodged a further appeal with ORG ( Afdeling Bestuursrechtspraak ) of ORG ( PERSON ) , this time under the name PERSON .

On DATE , ORG dismissed the applicant ’s further appeal on summary reasoning .

On DATE , the ORG put the following questions to the Agent of the Government :

“ CARDINAL . In relation to LAW ( a ) of the Convention :

a. Is the person who lodged the above application as PERSON , the same person who was apprehended ( aangehouden ) , questioned and subsequently put in GPE detention on or DATE ?

NORP If so , and in relation to the alleged facts :

a. At what point in time was the applicant apprehended ?

b. For how long was the applicant held for questioning ( ophouden voor verhoor ) ?

c. Following her apprehension , did the applicant provide any information as to her identity ?

d. If not , was it easily possible for her identity to be established in another way at that time ?

e. If her identity could not be established , was the applicant ’s apprehension prolonged pursuant to LAW ) ?

PERSON What measures were taken at that time in order to establish the applicant ’s identity ?

g. Did the applicant provide any information as to her nationality and , if so , in what way has she co - operated in establishing that nationality ?

h. On what grounds was it concluded that the applicant fell under the provisions of LAW ( Vreemdelingenwet ) ?

i. Did the applicant , at the time she was placed in GPE detention or subsequently , provide further information allowing her identity or nationality to be established and , if so , how ?

PERSON When was the applicant taken into GPE detention and when was she released ?

k. Did the GPE detention come to an end as a result of the applicant herself demonstrating at any time that the provisions of LAW at issue could not be applicable to her ?

l. At what point in time and in which manner did the applicant ’s identity become clear ? ”

On DATE the Agent of the Government replied as follows :

“ ( ... ) The Government will DATE out of necessity – limit itself to a short reply , since it can not confirm that the applicant is the person who was apprehended , questioned and subsequently put in GPE detention on or DATE . A female person was indeed apprehended , questioned and put in GPE detention on DATE , but she was merely known as ‘ NN cel PERSON and ‘ PERSON . Her fingerprints led to a positive identification , but the matching fingerprints were registered under ‘ NN onbekend’ ( NN unknown ) , reference number CARDINAL . The latter were taken from a female apprehended in the course of a house - squat in the city of GPE on DATE , whose identity remained unknown .

For the sake of completeness , I should add that the person apprehended on or around DATE appealed against the measure of aliens detention under the details mentioned above . Her representative informed the District [ i.e. Regional ] Court that she was also known as ‘ Tjitske’ . On DATE , higher appeal against ORG judgment was lodged by ‘ Tjitske Drijfhout , alias NN cel PERSON alias Nn . PCARDINAL.v.CARDINAL.CARDINAL’ .

Upon receipt of your letter , the GPE police in GPE checked the information provided in the application . It appears that Tjitske Drijfhout , born in GPE on DATE and residing at GPE CARDINAL hs , PERSON , GPE , is unknown in the municipal database . There is , however , a person known as PERSON , born on DATE . The above mentioned appeal to ORG was lodged by a person claiming to be of minor age . The age of the apprehended person was estimated DATE . Under no circumstance could the apprehended person have reached DATE , let alone DATE nearly ) CARDINAL - and - ten . Furthermore , the postal code of CARDINAL JB does not relate to the address provided .

The Government is of the opinion that – since at least part of the personal data submitted by the applicant are proven to be false – there is no reason to assume that the name provided by the applicant would be correct . The applicant ’s identity has therefore not been disclosed , as a result of which the application should be declared inadmissible for being anonymous , as stipulated in LAW ) of the Convention . The Government refers to the ORG ’s decision to that effect in the case of PERSON v. the GPE ( ORG . No . CARDINAL/CARDINAL ) . The fact that – other than the applicant in that case – the applicant in the present case has chosen to provide a somewhat less obvious pseudonym , does not alter that conclusion . ”

A copy of this letter was transmitted to the applicant ’s representative for comment . In a letter dated DATE , the latter admitted that CARDINAL DATE was not the applicant ’s date of birth but did not give any other date . He claimed that the wrong postcode , which differed only slightly from the actual postcode of the address given , was an honest mistake . He further admitted that the person referred to as NN cel PERSON and ORG in the domestic proceedings was the applicant .

On DATE Court requested the applicant to establish her identity by submitting a copy of a valid identity document held by her .

By letter dated DATE the applicant ’s representative , Mr Hemelaar , replied as follows ( translation ) :

“ In the above - mentioned case you requested me , in your letter of DATE , for a copy of a valid identity document of the applicant .

I have been informed by the applicant that she can not comply with that request , because she does not now hold a valid identity document from which her name as stated appears ( omdat zij thans niet beschikt over een geldig identiteitsbewijs waaruit haar naam als opgegeven blijkt ) .

In the GPE there is no obligation to have an identity document . People can go through life without an identity document . Especially since the law has been changed and fingerprints are required , there is much resistance against applying for a passport in the circles in which the applicant moves . The situation of being ‘ identity document - less’ ( identiteitsdocumentloos ) now occurs more frequently in those circles than it used to .

On behalf of the applicant , I point out that if the mere fact that the ORG denies the stated identity were enough to impose a duty of proof on the applicant , the effective exercise of the right of petition [ would be ] undermined . As you will be aware , especially in cases of GPE detention identity documents are usually unavailable . If now the ORG takes the position that the stated identity is incorrect ( as in fact GPE does in a large number of cases , often on the fallacious reasoning that ‘ The stated identity can not be correct , because if it were correct , the authorities of the country of origin would issue / have issued a laissez - ORG ) , then no applications at all could be lodged against violations of human rights in cases of GPE detention .

In certain cases a GPE citizen may in fact be asked for an identity document in specific situations and the failure to produce one may attract penal sanctions ( such as a MONEY fine or an extension of detention on remand ) and such sanctions were in fact imposed on the applicant . But a general obligation to purchase a passport or identity card , or possess one , does not exist in the GPE .

My client takes the view that she has not submitted an anonymous complaint and also refers to the decision of ORG , the highest administrative court in the GPE , from which it appears that ORG did not base its decision on that fiction either . My client has stated a name and an address ( albeit with the wrong postcode ) . That ought to be sufficient . Unlike in the case of ‘ Blondje’ ORG has considered this sufficient . It appears incorrect to the applicant that the ORG should all of a sudden adopt a different position in the present case . ”


CASE OF "IZA" LTD AND MAKRAKHIDZE v. GEORGIA

Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1;Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

NORP The applicant company was incorporated as a limited liability company on DATE by decision of ORG , GPE . The second applicant was born in DATE and lives in GPE .

On DATE , the second applicant , in his capacity as founder and director of the construction company “ ORG , the applicant company , signed a building repair contract with a ORG school . The contract provided for the transfer of CARDINAL NORP Laris ( “ GEL ” , ORG CARDINAL,CARDINAL.CARDINAL ) from the budget of ORG onto the account of the applicant company . In exchange , the applicant company would perform repairs to the school .

Despite the fact that , by DATE , the applicant company had already done some of the repairs , equivalent to CARDINAL GEL ( ORG CARDINAL,CARDINAL)CARDINAL ORG only transferred CARDINAL GEL ( EUR CARDINAL,CARDINAL)CARDINAL to the company 's account .

The tax authorities initiated proceedings against the applicant company and the second applicant personally , demanding taxes in the amount of CARDINAL GEL ( EUR CARDINAL,CARDINAL)CARDINAL . According to the applicants ' submissions , the tax claim was based on the total payment due for the work performed under the contract of DATE , whilst , in reality , the applicant company only received partial payment .

On DATE , the ORG partially upheld the claim of the tax authorities . While dismissing the tax claim of CARDINAL GEL ( ORG CARDINAL,CARDINAL)CARDINAL towards the applicant company as being unsubstantiated , ORG , in view of the second applicant 's recognition of his company 's indebtedness before the ORG budget as of DATE ( well before the signing of the contract with ORG ) , ordered the second applicant personally to pay the VAT debt of CARDINAL GEL ( ORG CARDINAL,CARDINAL)CARDINAL .

As the remaining sum for the work performed under the contract of DATE was not paid by ORG and the tax debt of the second applicant was outstanding , according to the applicants ' submissions , the applicant company could hardly continue its economic activity .

The applicant company , represented by the second applicant , brought proceedings against ORG claiming the remaining CARDINAL GEL ( EUR CARDINAL,CARDINAL)CARDINAL for the performed work , as well as the second applicant 's tax debt of CARDINAL GEL ( ORG CARDINAL,CARDINAL)CARDINAL , given the ORG 's failure to meet its contractual obligations . By a judgment of DATE , the ORG granted the applicant company 's claims in full .

There was no appeal against the judgment of DATE , which therefore acquired binding force on DATE . Based on that judgment , on DATE , ORG issued an order obliging ORG to pay the applicant company CARDINAL GEL ( EUR CARDINAL ) . However , the order remained unexecuted .

On DATE , the second applicant , acting again on behalf of the applicant company , requested ORG of ORG to comply with the judgment of DATE . In response , on CARDINAL DATE , the Head of the ORG explained that the enforcement of judgments against the ORG budget institutions still remained CARDINAL of the most difficult tasks to accomplish for ORG . No information was provided as to when exactly enforcement could be expected .

On DATE , the second applicant again addressed ORG . This time he appealed directly to the Minister of Justice , demanding the immediate implementation of the decision . This demand went unanswered .

On DATE , DATE , the second applicant applied to ORG , requesting the initiation of criminal proceedings for the non - implementation of a binding judicial decision , as laid down in LAW . However , his request was dismissed on DATE ; ORG did not find any intentional wrongdoing on the part of the authorities – ORG , ORG and ORG – commenting that the delay had an objective reason , namely the lack of finances in the ORG budget . Therefore nobody could be held criminally liable .

On DATE , by the Notification No . CARDINAL the ORG authorities imposed upon the applicant company the fine of CARDINAL GEL ( EUR CARDINAL,CARDINAL)CARDINAL as an accrued penalty for the second applicant 's outstanding tax debt of CARDINAL GEL ( EUR CARDINAL . However , following the applicant company 's judicial dispute , ORG declared the notification null and void . This decision was upheld by ORG on DATE ; along with annulment of the notification , the court instructed the tax authorities to adopt a new administrative act after comprehensive re - examination and reassessment of the facts .

On DATE , the ORG regional tax authorities issued a new notification imposing on the applicant company a fine of CARDINAL GEL ( EUR CARDINAL,CARDINAL.CARDINAL)CARDINAL for the same VAT debt of the second applicant . This notification was never challenged by the applicants and is still in force .

The tax debt of the second applicant constitutes , at the same time , part of the judgment debt of DATE , which still has not been paid by the ORG , DATE .

On DATE , the Government adopted an Ordinance introducing a mechanism for the gradual payment of outstanding debts ( see paragraph CARDINAL below ) .

“ Damage shall be compensated not only in respect of actual financial loss , but also in respect of loss of income . Loss of income is that which could have been obtained had contractual obligations been fulfilled properly . ”

“ Damages shall be paid only when the harm could have been foreseen by the party in default and there exists a causal link between the harmful action and the result . ”

“ ... following satisfaction of a private suit against administrative authorities , the court shall declare unlawful the administrative action or decision which infringed the litigant 's rights , and order relevant measures [ to restore the litigant in his rights ] . ”

“ Enforcement Agents working at ORG [ of ORG ] are responsible for the execution of the decisions foreseen in this law ” .

“ An Enforcement Agent 's requests relating to his professional activities are equally binding on any natural or legal person irrespective of their hierarchical or juridical - organisational status .

In case of a delay in execution , partial execution or any other circumstances that impede proper execution , the Enforcement Agent shall apply to ORG of ORG for a solution . Any disagreement with the resolution reached by ORG in this respect should be clarified by a court . ”

“ ... DATE after the proposal to comply voluntarily with a judicial decision obliging budget - funded organisations to disburse money , forcible measures may be undertaken against them ... ”

The PERSON does not specify either the kind of forcible enforcement measures which may be taken or the remedies that a litigant may pursue if no such measures are undertaken by ORG .

According to LAW , the non - execution of a judicial decision constitutes an offence :

“ The non - execution of a binding judicial decision or other judicial decision , or the obstruction to its execution by the ORG , government or local - government officials , or by the executives of a corporation or other organisations [ shall be punished ] ... ”

“ ... [ In a limited liability company ] ... directors represent the company in relationship to third parties ... ”

General Administrative Code

“ Administrative - legal act that has been declared null and void quashes legal effects deriving from its entry into force . ”

By adopting this LAW , the Government introduced a mechanism for the gradual payment of outstanding debts . Following its paragraph CARDINAL , ORG was ordered to give priority to the enforcement of court decisions concerning ( i ) the payment of compensation for damages caused by injury or death ; ( ii ) the payment of not DATE salary to workers ; ( iii ) the payment of compensation to rehabilitated people . At the same time , ORG was instructed to ensure the proportionate payment of other creditors , but only after the enforcement of the above - mentioned decisions .

Following paragraph CARDINAL of the GPE , the debtor ORG budget organisations and institutions , in agreement with ORG , have either to secure friendly settlements with their creditors , or to allocate , in accordance with NORP legislation , the enforcement of judgments in time , since , due to the scarcity of funds , the simultaneous payment of judgment debts is not feasible .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk

The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON .

On DATE the applicant , PERSON PERSON ( her husband ) and CARDINAL children ( PERSON NORP born in DATE and ORG born in DATE ) moved into a ORG - owned flat in GPE , GPE , under a specially protected tenancy agreement . On DATE the applicant divorced Mr O.V. According to the applicant , since their divorce she and Mr ORG have made continuous , but unsuccessful , efforts to exchange the flat for CARDINAL smaller ones .

In DATE the applicant resigned from her job in the GPE port and sent her children to school in GPE , GPE , where they acquired temporary registration at the flat of some people she knew for the period of their studies . In DATE the elder daughter , ORG , entered university in GPE and subsequently moved to a dormitory .

On an unspecified date in DATE Mr GPE instituted civil proceedings against the applicant and the children , seeking termination of their tenancy . He alleged that the CARDINAL of them had established a new home at an unknown address in GPE , where the applicant had met another man , visited the GPE flat only on occasion for leisure purposes and were no longer interested in occupying it on a permanent basis .

On DATE the applicant was served with a summons at her GPE address , but it was returned undelivered .

On DATE the ORG heard the case in the applicant ’s absence and allowed Mr ORG claim . This judgment was not appealed against and became final .

On DATE Mr PERSON registered the applicant and the children from the flat and on CARDINAL DATE privatised it in his name .

On DATE he sold the flat to the B. family .

According to the applicant , she learned about the judgment and the subsequent transactions concerning the flat in DATE , when the B. family moved in and changed the locks .

On DATE the applicant solicited signatures from CARDINAL residents of her building and the neighbouring one , attesting to the fact that she had resided in the flat and left it only on occasion .

Some time before DATE the case file was lost and subsequently restored by DATE .

On DATE the applicant alleged before ORG that the judgment of DATE was unfair , in particular , as she had not been accorded an opportunity to participate in the proceedings .

On an unspecified date the applicant requested ORG of GPE to lodge an application for supervisory review ( protest ) against this judgment . On DATE a protest was lodged and on DATE the ORG of ORG of the GPE quashed the judgment , referring , in particular , to the insufficiency of evidence to the effect that the applicant had been duly notified of the court proceedings . The case was referred back for fresh consideration .

On DATE the applicant and her daughter ORG , who had reached the age of majority , lodged a counter - claim , seeking to annul the privatisation of the flat and the subsequent contract of sale . The applicant maintained that she had lived in the flat on a permanent basis . In support of her allegation , she provided copies of certificates of her dental treatment in GPE in DATE and her temporary employment with “ N. ” , a private company , DATE and DATE .

On DATE ORG allowed PERSON claim and dismissed the counter - claims . It found that the applicant had failed to show that after DATE she and her children had used the apartment as a permanent residence . The court acknowledged that they might have visited it on occasion , but found this fact insufficient to justify their interest in retaining the specially protected tenancy . In its reasoning the court referred , in particular , to the testimonies of QUANTITY neighbours , given at the hearing , according to which the applicant and the children were around occasionally ; depositions by CARDINAL other neighbours , given to a local constable , providing analogous information ; absence of any evidence that the applicant had been receiving correspondence at her GPE address in the period in question ; absence of any records in the municipal health - care facility concerning the applicant ’s children in DATE ; and absence of any evidence that the applicant had paid utility and other charges related to the apartment in the period in question .

The applicant and ORG appealed . They challenged the witness statements as unreliable and inconsistent and referred to the court ’s failure to question the QUANTITY neighbours , who had certified in DATE that the applicant and the children had regularly resided in the flat . They further noted that their belongings had remained in the flat until PERSON ORG had moved them into a garage prior to the sale . They also noted that no evidence had been presented to the effect that they had established a permanent residence in GPE or elsewhere . In addition , in DATE and DATE the applicant and PERSON , respectively , had obtained NORP passports , being registered as the flat residents , which demonstrated their continuous interest in residing in GPE . As regards the payment of the charges , they maintained that the applicant had been unable to pay them , as she had been destitute , receiving no child support from Mr GPE and taking odd jobs .

Mr PERSON filed an objection against this appeal , alleging that he had provided financial support to the children until their departure for GPE and , had the applicant been in a destitute situation , she could have sought child support from him through court proceedings . Neither had she presented any documents to prove that she had any employment in GPE . Moreover , she could not have been employed , as she had even failed to obtain a tax identification number , necessary for employment according to legislation which had been implemented at the material time . He further alleged that the applicant had moved to GPE because she had met a new “ father ” for the children and had attempted to manage without having any contact with him ( Mr GPE ) , except on her occasional visits . Her conduct had hindered his ability to exchange the flat , notwithstanding his considerable efforts , certified by relevant documents . Therefore , unable to pay the charges , which were calculated on an assumption that CARDINAL persons lived in the flat , Mr GPE had to de - register his former family members from the flat and sell it . As regards the CARDINAL neighbours who had allegedly supported the applicant ’s position , PERSON PERSON noted that she had been given leave to bring them to court , but had failed to secure their appearance . He also mentioned that they were not immediate neighbours and could not in open court stand by their earlier statements , which had , in his opinion , been given by them under pressure from the applicant .

A representative of the PERSON family also filed an objection , noting , in particular , that if the applicant had lived in the flat on a permanent basis , as she had submitted , she would not have learned about its privatisation and sale with such a delay . Moreover , the certificate of her employment in GPE in DATE had been issued by a fake company and was not in accordance with the law .

On DATE ORG of the LOC upheld the previous judgment , referring , in particular , to the fact that the applicant had failed to secure the appearance of her witnesses and that there was no reason to consider that the PERSON family had acquired the flat in bad faith .

On DATE ORG rejected the applicant ’s request for leave to appeal in cassation .

The relevant provisions of the LAW read as follows :

“ Everyone has the right to housing . The ORG creates conditions that enable every citizen to build , purchase as property , or to rent housing .

ORG in need of social protection are provided with housing by the ORG and bodies of local self - government , free of charge or at a price affordable for them , in accordance with the law .

No one shall be forcibly deprived of housing other than on the basis of the law pursuant to a court decision ” .

The relevant provisions of LAW read as follows :

“ ORG shall have a right to obtain residential LOC from the ORG or public housing stock for use during an indefinite period according to the established procedure ... [ “ the specially protected tenancy ” ] .

Citizens shall have a right to privatisation of flats ( houses ) from the ORG housing stock ....

Nobody may be evicted from occupied residential LOC or restricted in their right of occupancy of occupied residential LOC except on the grounds and according to the procedure established by law ... ”

“ In the event of the temporary absence of a tenant or members of his family , residential premises shall be retained for them for DATE .

In the event that a tenant or members of his family have been absent on serious grounds for a period exceeding six months , the said term may be prolonged by a landlord upon the application of the absent [ occupant ] and , in the event of a dispute , by a court ... ”

“ A declaration that a person has lost the right of occupancy of residential LOC , as a consequence of the absence of that person in excess of established time - limits , shall be made through court proceedings ” .


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria

NORP The applicant , PERSON , is a GPE national who was born in DATE and lives in GPE . She was represented before the ORG by Mr J. van Broekhuijze , a lawyer practising in PERSON . The respondent Government were represented by their Deputy Agent , Ms L. GPE , of ORG .

NORP On DATE the public prosecutor ( officier van justitie ) submitted a request to ORG ( rechtbank ) of GPE for a provisional court authorisation ( voorlopige machtiging : hereafter “ provisional order ” ) to have the applicant committed to a psychiatric hospital pursuant to ORG ( Wet bijzondere opnemingen in psychiatrische ziekenhuizen ; “ the LAW ” ) . The prosecutor ’s request was based on a medical report issued by a psychiatrist who was not involved in the treatment of the applicant .

On DATE ORG held a hearing in the presence of the applicant , her counsel , CARDINAL social - psychiatric nurses , a priest and a sister of the applicant . ORG heard the applicant ’s general practitioner and the applicant ’s own psychiatrist .

It adjourned the proceedings in order to enable the prosecutor to request authorisation for the applicant to be committed to a psychiatric hospital for observation ( observatiemachtiging ; hereafter “ observation order ” ) instead ( section DATE of the LAW , see below ) .

On DATE the public prosecutor lodged a request for an observation order with ORG . The request was accompanied by a new medical report dated DATE .

On DATE ORG rejected the request for the provisional order and instead issued an observation order valid until DATE . In respect of the latter , it held as follows :

“ From the medical report and the clarification provided during the hearing by the physician treating the person concerned it appears that the situation is as follows :

The person concerned is suffering from a paranoid delusional disorder within the framework of schizophrenia .

There are serious reasons for believing that a disturbance of the mental faculties of the person concerned will lead her to pose the following danger to herself :

The person concerned is , probably as a result of her paranoid delusion , very suspicious of her neighbours . The person concerned is said to cause noise disturbance at TIME . There is a danger that , through her bothersome behaviour , the person concerned will provoke aggression of others against herself .

The committal to and stay in a psychiatric hospital of the person concerned is intended for examination whether she is suffering from a disturbance of the mental faculties and whether that disturbance will lead her to pose a danger to herself .

The danger can not be averted through the intervention of persons or institutions outside a psychiatric hospital . The person concerned has not shown the necessary willingness to stay in a psychiatric hospital voluntarily . ”

On DATE the applicant was admitted to a psychiatric hospital .

On DATE she lodged an appeal on points of law ( cassatie ) with ORG against the issuing of the observation order . She submitted grounds of appeal including , as relevant to the case before the ORG , that in breach of section CARDINAL(CARDINAL ) of the LAW she had not been heard by ORG before the observation order was issued and that , by providing that persons could be committed in order to determine whether they were of unsound mind , section CARDINAL sub h of the Act violated LAW , which allowed the detention of persons of unsound mind only after they had been determined actually to be of unsound mind .

NORP In parallel , the applicant started summary injunction proceedings ( kort geding ) before the Provisional Measures Judge ( voorzieningenrechter ) of ORG of GPE , seeking the immediate suspension of her committal . On DATE the Provisional Measures Judge gave judgment dismissing the applicant ’s claims . The reasoning included the finding that the hearing of CARDINAL DATE had been focused on the deprivation of liberty and that the applicant had been informed of the likelihood that an observation order would be given ; a statement made by the applicant ’s representative to the effect that the judge had informed him by telephone that another hearing would take place was dismissed as unproven .

The applicant remained in hospital until DATE .

On DATE ORG declared the applicant ’s appeal inadmissible for lack of interest as the order in issue had already lapsed in the meantime . However , in view of the relevance of the legal questions raised by the grounds for the appeal , ORG nonetheless addressed the merits of a number of her grounds of appeal .

Its reasoning , obiter dictum , was as follows :

“ CARDINAL . ORG nonetheless considers it useful , in view of the importance of the legal questions arising from the points of appeal , to consider the following .

The observation order given by ORG in pursuance of section CARDINAL of ORG is grounded on ORG assessment of the state of the person concerned , which is in the following terms :

[ etc . , see paragraph CARDINAL above ]

Point of appeal no . CARDINAL argues that section CARDINAL ) of ORG is incompatible with LAW ) of the LAW , because that provision only allows the detention of persons actually of unsound mind , whereas section CARDINAL ) of ORG provides for compulsory admission to determine whether there is an impairment of the mental faculties .

On this point , ORG takes the following view . It follows from the case - law of ORG cited in ... the advisory opinion of ORG that it is , in principle , permissible to deprive persons of unsound mind of their liberty if it has been reliably shown ( op deugdelijke wijze is aangetoond ) that the person concerned is of unsound mind . Nevertheless , the ORG has considered it acceptable that a person may briefly be detained in a psychiatric hospital involuntarily so that it can be determined whether he or she is suffering from a mental illness , but only in urgent cases or when the person concerned is detained in connection with his or her violent behaviour , the examination then having to take place immediately after the deprivation of liberty . In all other cases , an examination into the mental state must precede any deprivation of liberty . If however such an examination proves impossible because the person concerned refuses to submit to examination , review by a medical expert on the basis of the file may suffice , in the absence of which it can not be assumed that the person concerned is mentally ill .

An observation order within the meaning of section DATE of ORG is intended , according to the second paragraph of that provision , to determine whether there is a disturbance of the mental factulties and whether the disturbance causes the person concerned to pose a danger to him or herself . The order can be given if , as section CARDINALh(CARDINAL ) provides , there is serious reason to believe ( het ernstig vermoeden bestaat ) that he or she is suffering from a disturbance of his or her mental faculties ( stoornis van de geestvermogens ) which could lead him or her to pose a danger to him- or herself . Section CARDINALh(CARDINAL ) provides that the application for an observation order must be accompanied by a medical report as referred to in that provision , from which it appears that there is a case as referred to in section CARDINALh(CARDINAL ) . Taking this into account , ORG considers it acceptable under LAW to give an observation order only if on the basis of the medical report submitted it can be assumed , with sufficient certainty , that the person concerned is suffering from a disturbance of the mental faculties requiring further examination within the framework of the observation and there is serious reason to believe that that disturbance causes him or her to pose a danger to him or herself . To that extent , it is correctly argued that section DATE , in setting the condition that there is serious reason to believe that the mental disturbance should lead the person concerned to pose a danger to him- or herself , gives a wider description of the cases in which an observation order can be granted than is compatible with LAW .

Nonetheless , and even assuming that the appeal on points of law were admissible , the point of appeal would not have led ORG to quash ORG judgment . ORG has in fact found , on the basis of the medical report submitted , that the person concerned is suffering from a paranoid delusional disorder within the framework of schizophrenia and that there is serious reason to believe that the person concerned , as a result of this disturbance of her mental faculties , displays noisome behaviour and thereby provokes the aggression of others against herself . In so finding , ORG has not applied section DATE of ORG in a way that is incompatible with LAW .

Points of appeal CARDINAL and CARDINAL ... complain that ORG acted contrary to section CARDINAL(CARDINAL ) of ORG by deciding without hearing the person concerned and on the basis , additionally , of a new medical report which the person concerned has not been able to challenge . ORG has heard the person concerned on DATE , it is true , but that concerned the public prosecutor ’s application ... of DATE for a povisional order within the meaning of section CARDINAL of ORG . It appears that ORG then applied section CARDINAL of ORG , after which the public prosecutor lodged the application for an observation order which ORG accepted in its decision of CARDINAL DATE , which later application , according to the documents contained in the case file , was accompanied by a new medical report dated DATE . ORG does not allow a person concerned to be heard in advance , nor that a person concerned should waive in advance his or her right to be heard on an application for an order based on ORG that has yet to be submitted . ”

The applicant has submitted a letter from the medical director for compulsory admissions ( geneesheer - directeur ORG ) , dated CARDINAL DATE , which is in the following terms :

“ Further to your letter ... received on DATE , we herewith confirm in writing our telephone conversation of this afternoon concerning the observation order for PERSON

We do not subscribe to the ground you rely on to argue that the effect of the decision to give an observation order is suspended . We will therefore not comply with your request to release PERSON from our hospital .

We have a valid judicial decision for an observation order for Ms S.R. Section CARDINALh(CARDINAL ) taken together with section CARDINAL(CARDINAL ) of ORG provides that the court ’s decision is immediately enforceable ( bij voorraad uitvoerbaar ) . Section CARDINAL ) taken together with section CARDINAL(CARDINAL ) of ORG provides that no appeal on the merits ( hoger beroep ) lies against the decision . It is however possible to lodge an appeal on points of law with ORG . ... ”

NORP The applicant states that she requested the public prosecutor to seek a decision of the court in the matter , but that the public prosecutor refused .

The applicant has submitted a letter from a psychiatrist , dated DATE , on the letterhead stationery of the psychiatric hospital . It reads as follows :

“ The patient was in our care from DATE until DATE .

Psychiatric history :

CARDINAL : ORG for Out - Patient Mental Health Treatment ( ORG voor ORG ; “ RIAGG ” ) tried to develop a therapeutic relationship with the patient because of persistent complaints from several neighbours about noise .

DATE : ORG Out - Patient Clinic . Conclusion : A DATE woman who has serious problems with her neighbours , CARDINAL conflicting stories exist . It is not possible to reach a diagnosis on the information available .

Anamnesis and progress :

The patient is very loquacious and towards the end of discussions gets bogged down in a story line that can not any longer be followed . The content of the discussions concerns all the injustice that has been done to her over DATE by her PERSON carer and the neighbours . She also alleges that injustice is done to her by an institutional landlord from whom she rents her second home . None of this can be verified . In other words , it is difficult to assess whether her allegations or ‘ innocent LOC are within the bounds of what is normal or paranoid delusions ( paranoïde wanen ) .

Psychiatric examination :

Well - groomed , is busy at the table in the lounge making some loose notes . She is lucid , her recognition of persons and orientation in time and place are intact . Her perceptive faculties appear unimpaired but the patient will not discuss perception at any length . Her thinking is very diffuse and for a short period incoherent . Her mood is normal with a somewhat pronounced , not always quite adequate , modulating effect .

Provisional conclusion :

As far as can be established on the basis of the observation [ emendation by the ORG ] , neither the observation of the patient ’s behaviour nor repeated psychiatric examination have provided clear indications of psychosis . Mild psychotic symptoms can however be dissembled .

Classification according to ORG :

Axis I : Diagnosis deferred

ORG : Diagnosis deferred . ”

At the time of the events complained of , ORG , in its relevant parts , provided as follows :

“ CARDINAL . The court may , on the application of the public prosecutor , issue provisional authorisation for committal of a person whose mental faculties are disturbed to be admitted and kept in a psychiatric hospital . ... ”

“ CARDINAL . NORP Before taking a decision on the application for provisional authorisation the court shall hear the person in respect of whom the authorisation is sought , unless it finds that the person concerned is not willing to be heard . ... ”

“ If on the basis of its examination ORG has doubts as to whether in the given circumstances a measure other than that requested might not be more suitable , it may communicate these doubts to the public prosecutor ; if necessary the ORG shall indicate at the same time that its consideration of the case will be continued at a later time . ”

No appeal on the merits shall lie against the decision to grant provisional authorisation . ... ”

“ CARDINAL . The decision of the court shall be immediately enforceable . ... ”

“ CARDINAL . The court may , on the application of the public prosecutor , issue an authorisation for committal for observation to have the person concerned admitted and kept in a psychiatric hospital if there is serious reason to believe ( het ernstig vermoeden ORG ) that he or she is suffering from a disturbance of his or her mental faculties ( stoornis van de geestvermogens ) which could lead him or her to pose a danger to him- or herself .

An authorisation for committal for observation shall serve to examine whether :

a. a disturbance of the mental faculties exists ; and

b. such disturbance leads the person concerned to pose a danger to him- or herself .

The authorisation for committal for observation shall be valid for DATE after DATE on which the person concerned is admitted to a psychiatric hospital , without prejudice to [ section ... DATE ] .

Sections ... CARDINAL ) , first sentence , CARDINAL(CARDINAL)-(CARDINAL ) , [ and ] CARDINAL(CARDINAL)-(CARDINAL ) ... shall apply by analogy , it being understood that it must appear from the medical report ... that the situation is one as referred to in the first paragraph . ”

“ CARDINAL . If the person in relation to whom the public prosecutor had submitted a request for an order as referred to in this chapter [ including , at the time , section DATE ] , or for a decision ordering release ... , has suffered damage as a result of the failure of the court or the public prosecutor to observe CARDINAL of the provisions in this chapter [ which includes the above provisions ] ... , the court shall , at the request of the person concerned , award him or her damages to be determined in equity at the ORG ’s expense . ”

“ CARDINAL . A patient held in a psychiatric hospital in the application of chapter II , § § CARDINAL through CARDINAL [ i.e. including sections DATE , CARDINAL , DATE of this Act ] ... can ask the medical director of the psychiatric hospital for the conditional release or release of the patient from the hospital .

NORP In case of a refusal , the person who has received the decision ... may request the public prosecutor to seek the decision of the court . The request shall be in writing ; a copy of the original request and the decision of the medical director shall be appended . ... ”

A sunset clause was linked to section DATE , providing for an evaluation of the measure as of DATE , after which it would lapse automatically on DATE unless extended by order in council ( algemene maatregel van bestuur ) . The Government having elected not to extend it , it lapsed automatically on DATE .

Recommendation Rec(CARDINAL)CARDINAL of ORG to member states concerning the protection of the human rights and dignity of persons with mental disorder , in its relevant part , reads as follows :

“ CARDINAL . A person may be subject to involuntary placement only if all the following conditions are met :

i. the person has a mental disorder ;

ii . NORP the person ’s condition represents a significant risk of serious harm to his or her health or to other persons ;

iii . the placement includes a therapeutic purpose ;

iv . no less restrictive means of providing appropriate care are available ;

v. the opinion of the person concerned has been taken into consideration .

The law may provide that exceptionally a person may be subject to involuntary placement , in accordance with the provisions of this chapter , for the minimum period necessary in order to determine whether he or she has a mental disorder that represents a significant risk of serious harm to his or her health or to others if :

i. his or her behaviour is strongly suggestive of such a disorder ;

ii . his or her condition appears to represent such a risk ;

iii . there is no appropriate , less restrictive means of making this determination ; and

iv . the opinion of the person concerned has been taken into consideration . ”


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in DATE and lives in GPE , LOC .

In DATE the applicant sued ORG and ORG for an unfounded criminal prosecution . On DATE the ORG of ORG awarded the applicant damages . This judgment became binding on DATE , but was not enforced immediately .

The applicant mailed enforcement papers to the bailiff ’s service having territorial jurisdiction over ORG head office . The service returned the papers and explained that they should be mailed to the ORG .

The applicant mailed the papers to the ORG , but the ORG returned them because of several defects : the copy of the judgment was not certified , the writ of enforcement contained no time - limit , and the name of the court indicated in the papers mismatched that indicated in the seals .

The applicant removed these defects and on DATE resubmitted the papers . On DATE the judgment was enforced .

Under LAW of DATE , a bailiff must enforce a judgment within DATE . Under section QUANTITY of LAW of DATE , ORG must enforce a judgment within DATE .


The applicant was born in DATE and is currently serving a prison sentence in FAC in GPE .

NORP In criminal proceedings against armed gangs operating during the political turmoil in GPE from DATE , the ORG public prosecutor 's office accused the applicant of being CARDINAL of the instigators of an armed gang known as the “ LOC ” . The gang , organised as a military commando , aimed to avenge the murder of their members in conflicts with other gangs and was financed by extorting money from various businessmen in the area .

In DATE the applicant was charged before ORG with CARDINAL counts of murder , CARDINAL counts of attempted murder , CARDINAL count of possession of military weapons and CARDINAL count of creating and participating in an armed gang .

At public hearings before the court on DATE , CARDINAL DATE and DATE the applicant 's lawyer , PERSON , was present . However , during the period from DATE to DATE the lawyer did not assist the applicant , nor did the latter have an officially assigned lawyer . The applicant submitted that at the hearings during that period the public prosecutor 's office had summoned witnesses against him , questioned witnesses who were present and also produced other evidence against him . The applicant 's lawyer had summoned CARDINAL witnesses on the applicant 's behalf but they did not appear at the trial .

According to the applicant 's submissions , no defence counsel assisted him during the stage at which the parties made their final submissions . In this context , it transpires from TIME of the public hearings that the applicant 's lawyer was absent without reason and that the applicant refused to make his closing defence submissions himself . In that connection , the applicant complained that he had requested the court to officially assign him a defence lawyer , but had not received a reply .

According to the ORG 's submissions , the first - instance court proceedings lasted DATE and CARDINAL hearings were arranged . The court 's hearings were adjourned on several occasions as a result of the unjustified absence of lawyers , especially the applicant 's lawyer . The latter was absent at CARDINAL consecutive court hearings without giving any reasons .

In all , only QUANTITY hearings were actually held and ten could not take place on account of the lawyers ' absence . the court then ordered the assignment of PERSON , an official lawyer , who was present at the hearing on DATE . However , the applicant refused to be defended by a lawyer not chosen by him . the court accordingly discharged the officially assigned lawyer and continued the proceedings in the applicant 's presence , but without any defence lawyer .

NORP By letter of CARDINAL DATE ORG informed the Minister of ORG , among others , of the misconduct on the part of the applicant 's counsel and requested him to intervene in the matter . However , no disciplinary measures relating to Mr Leli were taken by ORG .

On DATE ORG found the applicant guilty and sentenced him to life imprisonment .

On DATE the applicant lodged an appeal with ORG against the judgment of DATE . He alleged that during the ORG hearings he had been denied a fair trial in that he had not been assisted by a lawyer during DATE of the trial . Such a lawyer would have enabled him to prepare his defence and to summon the defence witnesses . He claimed that he had not been assisted even in the presentation of his final submissions . He also claimed that he had been abroad during the period when CARDINAL or more of the crimes with which he had been charged had been committed , and produced customs stamps in his passport to prove that he had left the country . In his appeal , the applicant did not request the examination of any witnesses .

On DATE ORG upheld ORG judgment of DATE , while making several changes to the sentences imposed for the different counts . The changes concerned did not modify the sentence of life imprisonment .

On DATE the applicant lodged an appeal with ORG , alleging that , in breach of his constitutional rights , he had been denied the right to be legally represented in the proceedings . He complained in particular that , although he had not been duly represented , ORG had proceeded to examine witnesses against him and to consider other evidence .

On DATE ORG upheld ORG decision on the following grounds :

“ The violations alleged by the appellant were noted and redressed by ORG without having a significant influence on the substance of the first - instance judgment . During the pre - trial stage and also the trial itself , the accused was granted legal assistance . In the court 's opinion , the unjustified absence of defence counsel , in agreement with the accused , in order to adjourn the trial could not have as a consequence the absolute nullity of ORG judgment . ”

NORP The applicant then lodged a complaint with ORG , relying on LAW . On DATE ORG , in accordance with LAW ( Law no . CARDINAL ) of DATE , decided de plano to declare the complaint inadmissible as being “ outside its jurisdiction ” .

The relevant provisions of LAW provide :

“ During criminal proceedings everyone has the right :

( ç ) to defend himself or to be assisted by defence counsel chosen by him ; to communicate freely and privately with him , and to be provided with defence counsel free of charge if he does not have sufficient means ;

( d ) to question witnesses who are present and to request the appearance of witnesses , experts and other persons who can clarify the facts . ”

“ CARDINAL . The freedom , property and rights recognised in the LAW and by law may not be infringed without a fair hearing .

In order to protect his constitutional and legal rights , freedoms and interests , or when an accusation has been made against him , everyone has the right to a fair and public trial , within a reasonable time , by an independent and impartial tribunal established by law . ”

Insofar as relevant , LAW provides :

Then the presence of a defence lawyer is required and the selected or appointed defence lawyer has not been provided , has not appeared or has abandoned the defence , the court or the prosecutor shall appoint another lawyer as substitute , who shall exercise the rights and assume the obligations of the defence lawyer . ”


CASE OF Z AND OTHERS v. THE UNITED KINGDOM

Violation of Art. 3;No separate issue under Art. 8;No violation of Art. 6;Violation of Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial award

Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

The applicants are CARDINAL full siblings :

– Z , a girl born in DATE ;

– A , a boy born in DATE ;

– B , a boy born in DATE ;

– C , a girl born in DATE .

The applicants ' parents were married in DATE .

The family was first referred to social services in DATE by their health visitor due to concerns about the children and marital problems . Z was reported to be stealing food at TIME . Following the referral , a professionals ' meeting , involving the relevant agencies , was held on DATE , at which it was decided that a social worker and health visitor should visit . The family were reviewed at a further meeting in DATE and as it appeared that concerns had diminished , the file was closed .

NORP In DATE a neighbour reported that the children were locked outside the house for most of DATE .

NORP In DATE the police reported that the children 's bedrooms were filthy . The family 's general practitioner also reported that the children 's bedrooms were filthy and that their doors were locked . The children 's head - teacher , PERSON , expressed concern in DATE and requested a case conference . In DATE the ORG ( ORG ) and the emergency team made a referral after complaints by neighbours that the house was filthy and that the children spent most of DATE in their bedrooms , rarely being allowed out to play , and crying frequently . In DATE the maternal grandmother complained to the social services about the mother 's care and discipline of the children .

At a professionals ' meeting on DATE , at which the social services , the applicants ' head - teacher , the applicants ' general practitioner and health visitor attended , it was decided that no social worker would be allocated to the family . The school was to monitor the older children 's weight and the health visitor was to continue to visit the family regularly . It was agreed that the problem was CARDINAL of limited and neglectful parenting rather than a risk of physical abuse , and that the parents should be assisted to manage their responsibilities better .

NORP In DATE , whilst the applicants were on holiday , their house was burgled . On entering , the police found it in a filthy state . Used sanitary towels and dirty nappies were discarded in a cupboard and the children 's mattresses were sodden with urine . At a professionals ' meeting on CARDINAL DATE , the health visitor requested that the CARDINAL older children be placed on ORG as she felt that their mother could not offer consistent care . This suggestion was rejected . However , a social - work assistant , PERSON , was assigned to the family . It was not considered appropriate to convene a case conference at this stage . Prior to the meeting , Z and A had mentioned to the head - teacher that A had been hit with a poker . It was decided that this statement would be investigated .

At a professionals ' meeting on DATE , an improvement was noted in respect of the cleanliness of the house , the children 's bedding being clean save on CARDINAL occasions . However , it was reported that Z and A were taking food from bins at the school . There was still considered to be cause for concern , especially since the birth of another child was expected .

At a professionals ' meeting on DATE , the applicants ' headmistress reported a deterioration in the children 's well - being ; Z and A were still taking food from bins and A was soiling himself . PERSON was visiting DATE at this stage and said that she was checking the children 's bedrooms . She had noted that the children ate at DATE or TIME and then did not eat again until TIME . The children were also sent to bed at TIME It was planned to give the applicant 's mother further assistance through a voluntary agency .

In or DATE , A and B were both reported to have bruising on their faces . The police investigated after neighbours had reported screaming at the applicants ' home but apparently found no signs of bruising . They reported to the social services that “ the conditions of the house were appalling and not fit for [ the ] children to live in ” .

At a further professionals ' meeting on DATE , the assistant social worker , PERSON , stated that she was concerned about the applicants ' soiling and their mother 's lack of interest . Apparently , the children were defecating in their bedroom and smearing excrement on their windows . The head - teacher expressed concern , particularly concerning the boys A and B , and stated that the children had described blocks of wood being placed against their bedroom doors . It was decided to continue monitoring the children .

At a professionals ' meeting on DATE , a decision was made to arrange a case conference for DATE as a result of concern regarding the applicants ' care and the state of their bedroom . PERSON considered that standards in the boys ' bedroom had dramatically dropped . She found the room to be damp and smelly . A 's bed was broken and had a metal bar protruding from it . The bedding was damp and grubby with soil marks .

NORP In a report dated DATE , the headmistress stated that A was shabby , ill - kempt and often dirty and that he had been raiding the playground bins for apple cores . Z was pathetic , lacking in vitality and frequently and inexplicably tearful , becoming increasingly isolated from the other girls in her peer group with unfortunate incidents in which detrimental remarks were made about her appearance . B presented as withdrawn , pathetic and bedraggled . He regularly arrived cold , was frequently tearful and craved physical contact from adult helpers . He also appeared to crave for food . She concluded that they were still concerned that the children 's needs were not being adequately met and that home conditions and family dynamics were giving reasons for concern .

At the case conference held on DATE , PERSON stated that the boys ' bedroom had no light , carpet or toys and that their bedding was wet , smelly and soil - stained . Their mother did not change the beds . Their head - teacher stated that Z was tearful and withdrawn , A had been raiding school bins and was often dirty , and B was very withdrawn , craved attention and was ravenously hungry . The chairman of the conference concluded that , despite the many concerns about the parenting of the applicants and the conditions in the home , there was little evidence to support going to court . It was felt that the parents were not wilfully neglecting their children and , bearing in mind their own poor upbringing , it was considered that the applicants ' parents were doing what they could and that continued support was required to try and improve the situation . It was decided not to place the children on ORG .

On DATE B was found to have “ unusual ” bruises on his back .

At a later social services meeting in DATE , no change to the children 's living conditions was noted . The head - teacher stated that Z and A were still taking food from bins and that A was becoming more withdrawn . PERSON reported that the mother had stated that the children were taking food from the park bins on the way to school .

NORP In DATE the applicants ' mother informed social services that the children would be better off living in care . On DATE the social services received a phone call from a neighbour who stated that the children were frequently locked outside in a filthy back garden , that they constantly screamed and that they were kept for long periods in their bedrooms where they smeared faeces on their windows . The maternal grandparents later told the guardian ad litem that Z , who was treated by her mother as a little servant , was expected to clean the excrement from the windows .

From DATE , the CARDINAL older children spent some time with foster carers in respite care . The foster carers reported that A did not know how to wash , bathe or clean his teeth on arrival . He wet his bed every night and stole food from his brother . B was described as being “ very frightened . He could not understand how he could play in the garden and the door was left open for him to come back in , he expected to be locked out ” . He also had to be taught to use the toilet properly and to clean himself .

At a professionals ' meeting on DATE , PERSON stated that the conditions in which the boys were sleeping were deteriorating . The mattresses in the boys ' bedroom were ripped and the springs were coming through . The boys were stealing food , and C had also been seen to do this . Their mother stated that she could not control them . It was decided not to arrange a child - protection meeting but to carry out a DATE weight check on the CARDINAL older children at school , and for the health visitor to check the weight of the CARDINAL younger children . It was also decided to arrange respite care for Z , A and B in DATE as well as on DATE in CARDINAL .

In DATE C was found to have developed a squint . His mother failed to keep appointments at the eye - clinic DATE .

At a professionals ' meeting on CARDINAL DATE , it was reported that the applicants ' mother had said that she could not control the applicants ' behaviour which consisted of refusing to go to bed when asked and stealing food . It was considered that the home was in an acceptable condition , though the boys ' room still needed attention . The children 's weights were recorded . It was noted that Z had put on QUANTITY lb in DATE whereas she had only put on QUANTITY in DATE . A had only put on QUANTITY year . B had put on QUANTITY in DATE and was on the CARDINALth centile for height . C was on the CARDINALth centile for weight . There was a discussion about the CARDINAL elder children being accommodated by the local authority to allow the mother “ to get back on her feet ” . The social services considered a DATE period whilst the general practitioner envisaged a period of DATE to twenty - four months .

NORP In DATE a social worker was introduced to the applicants ' mother with a view to assisting her with shopping , budgeting and cooking .

Z , A and B were accommodated by volunteers DATE , and showed to have gained weight . In DATE and again in DATE , their mother asked if the boys , A and B , could be placed for adoption .

On DATE C started to attend a nursery group at a family centre . She was noted to be unsocialised , lacking in confidence , unable to share , and with poor speech .

At a further professionals ' meeting on DATE , it was decided that further respite care would be considered . The children 's weights were noted , increases being seen for ORG , A and B.

The children 's parents divorced in DATE .

At another professionals ' meeting on DATE it was decided that the applicants ' mother 's request that A and B be placed for adoption be followed up . The headmistress voiced concern over the fundamental pattern of the mother 's care of the children , in particular in relation to ORG 's role in the home and the mothering role which she played . PERSON reported that conditions were deteriorating for A and B.

On DATE the applicants ' mother demanded that the children be placed in care as she could not cope . She stated that if they were not removed from her care she would batter them . The applicants were placed in emergency foster care . The applicants were entered onto ORG under the categories of neglect and emotional abuse after a child - protection meeting on DATE .

The applicants were all fostered separately . Initially , Z was noted to have dirty , ill - fitting clothes . She stated that she did not like living with her siblings as she did not like having to look after them all the time . A wet the bed every night , shunned physical contact and suffered from nightmares . B did not know how to use the toilet or toilet paper . C bonded very quickly with her foster parents .

On DATE the local authority decided to seek care orders in respect of the children . Interim care orders were made on DATE .

A guardian ad litem , who was appointed on DATE , recommended that all the applicants should be the subject of care orders in order to protect them from further harm . She stated that there was “ an abundance of evidence that the children have been subjected to physical and mental ill - treatment ” . She noted that their health had also been neglected by their parents who frequently missed appointments with opticians and doctors .

All the applicants were seen by Dr PERSON , a consultant child psychiatrist , in DATE . PERSON stated that the CARDINAL older children were all showing signs of psychological disturbance . Z was exhibiting signs of serious depressive illness and had assumed responsibility for her family and for its breakdown . Her mother 's behaviour towards her was described as cruel and emotionally abusive . A and B , who suffered from nightmares , were both identified as showing signs of post - traumatic stress disorder and A was also chronically under - attached . PERSON noted that all children had been deprived of affection and physical care . She described their experiences as “ to put it bluntly , horrific ” , and added that the case was the worst case of neglect and emotional abuse that she had seen in her professional career . In her opinion , social services had “ leaned over backwards to avoid putting these children on ORG and had delayed too long , leaving CARDINAL of the children with serious psychological disturbance as a result ” .

Full care orders were made in respect of the applicants on DATE by Judge PERSON sitting at ORG .

In DATE the Official Solicitor , acting as the applicants ' next friend , commenced proceedings against the local authority claiming damages for negligence and/or breach of statutory duty arguing that the authority had failed to have regard to their welfare as was required by statute and should have acted more quickly and more effectively when apprised of their condition . It was argued that the local authority 's failure to act had resulted in psychological damage . The application was struck out as revealing no cause of action , by Mr Justice PERSON on DATE .

The applicants appealed to ORG , which , on CARDINAL DATE , upheld the decision of Mr Justice PERSON to strike out the application .

The applicants appealed to ORG . On DATE ORG rejected their appeal , finding that no action lay against the local authority in negligence or breach of statutory duty concerning the discharge of their duties relating to the welfare of children under LAW DATE in respect of child care . The case is reported as NORP and Others v. ORG [ DATE ] CARDINAL All England Law Reports CARDINAL .

Lord PERSON gave the leading judgment . In respect of claims for breach of statutory duty , he stated , inter alia :

“ ... My starting point is that the Acts in question are all concerned to establish an administrative system designed to promote the social welfare of the community . The welfare sector involved is CARDINAL of peculiar sensitivity , involving very difficult decisions how to strike the balance between protecting the child from immediate feared harm and disrupting the relationship between the child and its parents . In my judgment in such a context it would require exceptionally clear statutory language to show a parliamentary intention that those responsible for carrying out these difficult functions should be liable in damages if , on subsequent investigation with the benefit of hindsight , it was shown that they had reached an erroneous conclusion and therefore failed to discharge their statutory duties . ...

When CARDINAL turns to the actual words used in the primary legislation to create the duties relied upon in my judgment they are inconsistent with any intention to create a private law cause of action . ”

As regards the claims that the local authority owed a duty of care to the applicants pursuant to the tort of negligence , Lord PERSON stated , inter alia :

“ I turn then to consider whether , in accordance with the ordinary principles laid down in GPE [ DATE ] CARDINAL AC CARDINAL , the local authority ... owed a direct duty of care to the plaintiffs . The local authority accepts that they could foresee damage to the plaintiffs if they carried out their statutory duties negligently and that the relationship between the authority and the plaintiffs is sufficiently proximate . The third requirement laid down in GPE is that it must be just and reasonable to impose a common law duty of care in all the circumstances ...

The Master of the Rolls took the view , with which I agree , that the public policy consideration that has first claim on the loyalty of the law is that wrongs should be remedied and that very potent counter considerations are required to override that policy ( see [ DATE ] CARDINAL AER CARDINAL at CARDINAL ) . However , in my judgment there are such considerations in this case .

First , in my judgment a common law duty of care would cut across the whole statutory system set up for the protection of children at risk . As a result of the ministerial directions contained in ' ORG the protection of such children is not the exclusive territory of the local authority 's social services . The system is inter - disciplinary , involving the participation of the police , educational bodies , doctors and others . At all stages the system involves joint discussions , joint recommendations and joint decisions . The key organisation is ORG , a multi - disciplinary body which decides whether to place the child on ORG . This procedure by way of joint action takes place , not merely because it is good practice , but because it is required by guidance having statutory force binding on the local authority . The guidance is extremely detailed and extensive : the current edition of ' ORG runs to CARDINAL pages . To introduce into such a system a common law duty of care enforceable against CARDINAL of the participant bodies would be manifestly unfair . To impose such liability on all the participant bodies would lead to almost impossible problems of disentangling as between the respective bodies the liability , both primary and by way of contribution , of each for reaching a decision found to be negligent .

Second , the task of the local authority and its servants in dealing with children at risk is extraordinarily delicate . Legislation requires the local authority to have regard not only to the physical well - being of the child but also to the advantages of not disrupting the child 's family environment . ... In one of the child abuse cases , the local authority is blamed for removing the child precipitately ; in the other for failing to remove the children from their mother . As the Report of the Inquiry into Child Abuse in GPE DATE ( ORG . CARDINAL ) ( ' ORG DATE ' ) said , at p. CARDINAL :

' ... It is a delicate and difficult line to tread between taking action too soon and not taking it soon enough . Social services whilst putting the needs of the child first must respect the rights of the parents ; they also must work if possible with the parents for the benefit of the children . These parents themselves are often in need of help . Inevitably a degree of conflict develops between those objectives . '

ORG , if liability in damages were to be imposed , it might well be that local authorities would adopt a more cautious and defensive approach to their duties . For example , as ORG makes clear , on occasions the speedy decision to remove the child is sometimes vital . If the authority is to be made liable in damages for a negligent decision to remove a child ( such negligence lying in the failure properly first to investigate the allegations ) there would be a substantial temptation to postpone making such a decision until further inquiries have been made in the hope of getting more concrete facts . Not only would the child in fact being abused be prejudiced by such delay , the increased workload inherent in making such investigations would reduce the time available to deal with other cases and other children .

The relationship between the social worker and the child 's parents is frequently CARDINAL of conflict , the parent wishing to retain care of the child , the social worker having to consider whether to remove it . This is fertile ground in which to breed ill - feeling and litigation , often hopeless , the cost of which both in terms of money and human resources will be diverted from the performance of the social service for which they were provided . The spectre of vexatious and costly litigation is often urged as a reason for not imposing a legal duty . But the circumstances surrounding cases of child abuse make the risk a very high one which can not be ignored .

If there were no other remedy for maladministration of the statutory system for the protection of children , it would provide substantial argument for imposing a duty of care . But the statutory complaints procedures contained in section DATE of LAW and the much fuller procedures now available under LAW provide a means to have grievances investigated though not to recover compensation . Further , it was submitted ( and not controverted ) that the local authorities ORG would have power to investigate cases such as these .

Finally , your Lordships ' decision in Caparo [ DATE ] CARDINAL AC CARDINAL lays down that in deciding whether to develop novel categories of negligence the court should proceed incrementally and by analogy with decided categories . We were not referred to any category of case in which a duty of care has been held to exist which is in any way analogous to the present cases . Here , for the first time , the plaintiffs are seeking to erect a common law duty of care in relation to the administration of a statutory social welfare scheme . Such a scheme is designed to protect weaker members of society ( children ) from harm done to them by others . The scheme involves the administrators in exercising discretion and powers which could not exist in the private sector and which in many cases bring them into conflict with those who , under the general law , are responsible for the child 's welfare . To my mind , the nearest analogies are the cases where a common law duty of care has been sought to be imposed upon the police ( in seeking to protect vulnerable members of society from wrongs done to them by others ) or statutory regulators of financial dealing who are seeking to protect investors from dishonesty . In neither of these cases has it been thought appropriate to superimpose on a statutory regime a common law duty of care giving rise to a claim in damages for failure to protect the weak against the wrongdoer . ... In my judgment , the courts should proceed with great care before holding liable in negligence those who have been charged by ORG with the task of protecting society from the wrong doings of others . ”

Z and C , the CARDINAL girls , were meanwhile adopted . The boys , A and B , were initially in foster care . Following the breakdown of B 's adoptive placement , he was placed in a therapeutic residential placement in DATE . After DATE , he was again placed with foster parents where he remained , attending school in a special - needs group . In DATE , A was placed in a therapeutic community , where he stayed for DATE . He apparently had a number of foster placements which broke down . Records indicated that he had been in CARDINAL different placements in DATE . He is currently in a children 's home .

In DATE , applications were made to ORG ( CICB ) on behalf of all the children by the adoption society to whom the local authority had delegated certain responsibilities . It was claimed on behalf of Z that she had suffered severe neglect and chronic deprivation which rendered it likely that specialist care would be necessary during her adolescence , a time where emotional repercussions of the abuse might become apparent ; on behalf of A that he had suffered physical deprivation , emotional abuse , physical abuse and possible sexual abuse – he had suffered permanent physical scarring and was still receiving treatment from a child psychiatrist ; on behalf of B that he had suffered extreme physical and emotional deprivation and shown signs of sexual abuse – he also had suffered permanent physical scarring and was receiving therapy ; and on behalf of C that she had suffered extreme physical and emotional deprivation , and in addition that her need for eye treatment was not being met by her parents .

In DATE , the CICB awarded MONEY ( GBP ) to Z , GBP CARDINAL to A and GBP CARDINAL,CARDINAL to B for injuries suffered DATE ; it awarded GBP CARDINAL to C for injuries suffered DATE . In a letter dated DATE from the PERSON to ORG , it was stated :

“ ORG Member who assessed these cases recognised that the children were exposed to appalling neglect over an extended period but explained to their advisers that the ORG could not make an award unless it was satisfied on the whole available evidence that an applicant had suffered an injury DATE physical or psychological – directly attributable to a crime of violence ... He was nevertheless satisfied , that setting aside ' neglect ' the children had some physical and psychological injury inflicted upon them as enabled him to make an award to each child ... ”

Prior to the coming into force of the current legislation , LAW DATE , on DATE , the local authority 's duty in respect of child care was governed by LAW .

Sections CARDINAL and CARDINAL of LAW DATE provided that :

“ CARDINAL . It shall be the duty of every local authority to make available such advice , guidance and assistance as may promote the welfare of children by diminishing the need to receive or keep them in care .

( CARDINAL ) Where it appears to a local authority with respect to a child in their area appearing to them to be under the age of CARDINAL -

( a ) that he has neither parent nor guardian or has been and remains abandoned by his parents or guardian or is lost ;

( b ) that his parents or guardian are , for the time being or permanently , prevented by reason of mental or bodily disease or infirmity or other incapacity or any other circumstances from providing for his proper accommodation , maintenance and upbringing ; and

( c ) in either case , that the intervention of the local authority under this section is necessary in the interests of the welfare of the child , it shall be the duty of the local authority to receive the child into their care under this section . ”

Section CARDINAL of LAW DATE has since provided , inter alia :

“ CARDINAL . Provision of services for children in need , their families and others

( CARDINAL ) It shall be the general duty of every local authority ( in addition to the other duties imposed on them by this Part ) -

( a ) to safeguard and promote the welfare of children within their area who are in need ; and

( b ) so far as is consistent with that duty , to promote the upbringing of such children by their families ,

by providing a range and level of services appropriate to those children 's needs .

( CARDINAL ) For the purpose principally of facilitating the discharge of their general duty under this section , every local authority shall have the specific duties and powers set out in Part I of Schedule CARDINAL .

( CARDINAL ) For the purposes of this Part a child shall be taken to be in need if -

( a ) he is unlikely to achieve or maintain , or to have the opportunity of achieving or maintaining a reasonable standard of health or development without the provision for him of services by a local authority under this Part ;

( b ) his health or development is likely to be significantly impaired or further impaired , without the provision for him of such services ; or

( c ) he is disabled ...

( CARDINAL ) ... ; and in this Part

' development ' means physical , intellectual , emotional , social or behavioural development ; and

' health ' means physical or mental health . ”

Part III of LAW DATE deals with local authority support for children and families . The policy of the LAW is made clear by paragraph CARDINAL of Part I of Schedule CARDINAL , which requires local authorities to take reasonable steps designed to reduce the need to bring proceedings relating to children .

Section CARDINAL provides that

“ CARDINAL ) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of -

( a ) there being no person who has parental responsibility for him ;

( b ) his being lost or having been abandoned ; or

( c ) NORP the person who has been caring for him being prevented ( whether or not permanently , and for whatever reason ) from providing him with suitable accommodation or care .

( CARDINAL ) A local authority may provide accommodation for any child within their area ( even though a person who has parental responsibility for him is able to provide him with accommodation ) if they consider that to do so would safeguard or promote the child 's welfare . ”

Part V of LAW DATE deals with the protection of children . Section CARDINAL provides as follows :

“ CARDINAL(CARDINAL ) Where a local authority -

( b ) have reasonable cause to suspect that a child who lives or is found , in their area is suffering , or is likely to suffer , significant harm ,

the authority shall make , or cause to be made , such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child 's welfare .

( CARDINAL) Where , as a result of complying with this section , a local authority conclude that they should take action to safeguard or promote the child 's welfare they shall take action ( so far as it is within their power and reasonably practicable for them to do so ) . ”

The complaints procedure is provided by section CARDINAL of LAW DATE :

“ Review of cases and inquiries into representations

( CARDINAL ) NORP local authority shall establish a procedure for considering any representations ( including any complaint ) made to them by -

( a ) any child ... who is not being looked after by them but is in need ;

( b ) a parent of his ;

( e ) NORP such other person as the authority consider has a sufficient interest in the child 's welfare to warrant his representations being considered by them ,

about the discharge by the authority of any of their functions under this Part in relation to the child .

( CARDINAL ) The procedure shall ensure that CARDINAL person who is not a member or officer of the authority takes part in -

( a ) the consideration ; and

( b ) any discussions which are held by the local authority about the action ( if any ) to be taken in relation to the child in the light of this consideration .

( CARDINAL ) Where any representation has been considered under the procedure established by the local authority under this section , the authority shall -

( a ) have due regard to the findings of those considering the representation ; and

( b ) take such steps as are reasonably practicable to notify ( in writing ) -

( i ) the person making the representation ;

( ii ) the child ( if the authority consider that he has sufficient understanding ) ; and

( iii ) such other persons ( if any ) as appear to the authority to be likely to be affected ,

of the authority 's decision in the matter and their reasons for taking that decision and of any action which they have taken , or propose to take .

( CARDINAL) Every local authority shall give such publicity to their procedure for considering representations under this section as they consider appropriate . ”

The powers of the Secretary of ORG to investigate the actions of the local authority are set out in sections CARDINAL and CARDINAL of LAW DATE .

“ CARDINAL . ( CARDINAL ) The Secretary of ORG may cause an inquiry to be held into any matter connected with -

( a ) NORP the function of the social services committee of a local authority , in so far as those functions relate to children ;

Local authority failure to comply with statutory duty : default power of Secretary of ORG

( CARDINAL ) If the Secretary of ORG is satisfied that any local authority has failed , without reasonable excuse , to comply with any of the duties imposed on them by or under this LAW he may make an order declaring that authority to be in default with respect to that duty .

( CARDINAL ) Any order under subsection ( CARDINAL ) may contain such directions for the purpose of ensuring that the duty is complied with , within such period as may be specified in the order , as appears to the Secretary of ORG to be necessary .

( CARDINAL ) Any such directions shall , on the application of the Secretary of ORG , be enforceable by mandamus . ”

In GPE and GPE there is no single tort which imposes liability to pay compensation for civil wrongs . Instead there is a series of separate torts , for example , trespass , conversion , conspiracy , negligence and defamation .

Negligence arises in specific categories of situations . These categories are capable of being extended . There are CARDINAL elements to the tort of negligence : a duty of care , breach of the duty of care , and damage . The duty of care may be described as the concept which defines the categories of relationships in which the law may impose liability on a defendant in damages if he or she is shown to have acted carelessly . To show a duty of care , the claimant must show that the situation comes within an existing established category of cases where a duty of care has been held to exist . In novel situations , in order to show a duty of care , the claimant must satisfy a CARDINAL test , establishing :

– that damage to the claimant was foreseeable ;

– that the claimant was in an appropriate relationship of proximity to the defendant ; and ,

– that it is fair , just and reasonable to impose liability on the defendant .

These criteria apply to claims against private persons as well as claims against public bodies . The leading case is ORG plc v. PERSON ( [ DATE ] CARDINAL Appeal Cases CARDINAL ) .

If the courts decide that as a matter of law there is no duty of care owed in a particular situation , that decision will ( subject to the doctrine of precedent ) apply in future cases where the parties are in the same relationship .

NORP The decision in NORP and Others v. ORG ( [ DATE ] CARDINAL All England Law Reports CARDINAL ) is the leading authority in GPE in this area . It held that local authorities could not be sued for negligence or for breach of statutory duty in respect of the discharge of their functions concerning the welfare of children . The leading judgment is reported at length in the facts above ( see paragraphs CARDINAL above ) .

Since X and Others v. ORG , there have been CARDINAL further significant judgments regarding the extent of liability of local authorities in child care matters .

The Court of Appeal gave judgment in PERSON and Others v. ORG ( [ DATE ] CARDINAL All England Law Reports CARDINAL ) . This case concerned the claims by a mother and father ( first and second plaintiffs ) , who had agreed to act as foster parents , that the defendant local authority placed PERSON , a DATE boy , in their home although they knew that he was a suspect or known sexual abuser . During PERSON 's stay in their home , the plaintiffs ' CARDINAL children ( DATE plaintiffs ) were all sexually abused and suffered psychiatric illness . The plaintiffs brought an action against the local authority and the social worker involved , claiming damages for negligence and for negligent misstatement . On the defendants ' application to strike out the statement of claim as disclosing no reasonable cause of action , the judges struck out the parents ' claims but refused to strike out the claims of the children . ORG upheld his decision . The headnote for the judgment summarised ORG findings as follows :

“ ( CARDINAL ) Although no claim in damages lay in respect of decisions by a local authority in the exercise of a statutory discretion , if the decision complained of was so unreasonable that it fell outside the ambit of the discretion conferred , there was no a priori reason for excluding common law liability . In the instant case , the giving of information to the parents was part and parcel of the defendants ' performance of their statutory powers and duties , and it had been conceded that it was arguable that those decisions fell outside the ambit of their discretion . Accordingly , since it had also been conceded that the damage to the children was reasonably foreseeable and that there was sufficient proximity , the question for the court was whether it was just and reasonable to impose a duty of care on the council or the social worker . Having regard to the fact that common law duty of care would cut across the whole statutory set up for the protection of children at risk , that the task of the local authority and its servants in dealing with such children was extraordinarily difficult and delicate , that local authorities might adopt a more defensive approach to their duties if liability in damages were imposed , that the relationship between parents and social workers was frequently CARDINAL of conflict and that the plaintiff children 's injuries were compensatable under LAW , it was not just and reasonable to do so . It followed that no duty of care was owed to the plaintiff parents who in any event were secondary victims in respect of their claim for psychiatric illness ...

( CARDINAL ) ( ORG dissenting ) It was arguable that the policy considerations against imposing a common law duty of care on a local authority in relation to the performance of its statutory duties to protect children did not apply when the children whose safety was under consideration were those in respect of whom it was not performing any statutory duty . Accordingly , since in the instant case , the plaintiff children were not children for whom the council had carried out any immediate caring responsibilities under the child welfare system but were living at home with their parents , and express assurances had been given that a sexual abuser would not be placed in their home , their claim should proceed ... ”

On further appeal by the parents , ORG on DATE held that it was impossible to say that the psychiatric injury allegedly suffered by the parents , flowing from a feeling that they had brought the abuser and their children together or from a feeling of responsibility for not having detected the abuse earlier , was outside the range of psychiatric injury recognised by the law , nor was it unarguable that the local authority had owed a duty of care to the parents . The parents ' claim could not be said to be so certainly or clearly bad that they should be barred from pursuing it to trial and their appeal was allowed .

ORG gave judgment on DATE in PERSON v. GPE of GPE ( [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) . That case concerned the claims of the plaintiff , who had been in care from DATE , that the local authority had negligently failed to safeguard his welfare causing him deep - seated psychiatric problems . The local authority had applied to strike out the case as disclosing no cause of action . ORG , upholding the plaintiff 's appeal , unanimously held that the judgment in X and Others v. ORG did not in the circumstances of this case prevent a claim of negligence being brought against a local authority by a child formerly in its care .

Lord PERSON , in his judgment in that case , commented as follows on the operation of the duty of care :

“ ( CARDINAL ) Although the word ' immunity ' is sometimes incorrectly used , a holding that it is not fair , just and reasonable to hold liable a particular class of defendants whether generally or in relation to a particular type of activity is not to give immunity from a liability to which the rest of the world is subject . It is a prerequisite to there being any liability in negligence at all that as a matter of policy it is fair , just and reasonable in those circumstances to impose liability in negligence . ( CARDINAL ) In a wide range of cases public policy has led to the decision that the imposition of liability would not be fair and reasonable in the circumstances , e.g. some activities of financial regulators , building inspectors , ship surveyors , social workers dealing with sex abuse cases . In all these cases and many others the view has been taken that the proper performance of the defendant 's primary functions for the benefit of society as a whole will be inhibited if they are required to look over their shoulder to avoid liability in negligence . In LANGUAGE law the decision as to whether it is fair , just and reasonable to impose a liability in negligence on a particular class of would - be defendants depends on weighing in the balance the total detriment to the public interest in all cases from holding such class liable in negligence as against the total loss to all would - be plaintiffs if they are not to have a cause of action in respect of the loss they have individually suffered . ( CARDINAL ) In LANGUAGE law , questions of public policy and the question whether it is fair and reasonable to impose liability in negligence are decided as questions of law . Once the decision is taken that , say , company auditors though liable to shareholders for negligent auditing are not liable to those proposing to invest in the company ( see ORG plc v. PERSON [ DATE ] CARDINAL All ER CARDINAL , [ DATE ] CARDINAL AC CARDINAL ) , that decision will apply to all future cases of the same kind . The decision does not depend on weighing the balance between the extent of the damage to the plaintiff and the damage to the public in each particular case . ”

At the relevant time , LAW , Rule CARDINAL of the Rules of ORG provided that a claim could be struck out if it disclosed no reasonable cause of action . This jurisdiction has been described as being reserved for “ plain and obvious cases ” , in which a claim was “ obviously unsustainable ” .

In applications to strike out , the courts proceeded on the basis that all the allegations set out in the claimant 's pleadings were true . The question for the courts was whether , assuming that the claimant could substantiate all factual allegations at trial , the claim disclosed a reasonable cause of action .

DATE . The striking out procedure , now contained in Part CARDINAL.CARDINAL(CARDINAL ) of ORG in force since DATE , is regarded as an important feature of LANGUAGE civil procedure , performing the function of securing speedy and effective justice , inter alia , by allowing a court to decide promptly which issues need full investigation and trial , and disposing summarily of the others . By means of this procedure , it can be determined at an early stage , with minimal cost to the parties , whether the facts as pleaded reveal a claim existing in law .