Update From The European Court Of Human Rights - Implications For Insurance Companies

Insurance companies need to be aware that the Human Rights Act will affect them when it comes into force in October 2000. A recent European case on litigation delay serves as an early warning.

Mr Nielsen had a car accident when aged 20 in November 1986. He was severely injured and is now partly disabled. He commenced proceedings against three insurance companies in February 1988, claiming that they should be held liable, jointly and severally, to pay a specified amount in compensation for permanent disablement and loss of working capacity.

In May 1988 the case was adjourned pending the outcome of the referral to the National Board of Industrial Injuries (Arbejdsskadestyrelsen) (NBI) to give an opinion on the degree of disablement and working capacity. Following that, Mr Nielsen was examined by two medical experts who in February 1989 also requested the Municipality of Skanderborg (where he lives) to provide information which was done in December 1989, and the NBI submitted its expert opinion in January 1990.

In March 1990 the NBI was asked additional questions about the degree of disablement and working capacity and in a letter dated February 1991 the NBI maintained its opinion.

In February 1991, Mr Nielsen asked the NBI to submit an opinion as to whether his injuries were stationary, and the NBI submitted its opinion in May 1991. From May 1991 to March 1992 the parties exchanged pleadings, the applicant being asked several times to provide further and better particulars. In March 1992 one company produced a supplementary list of questions for the NBI, and Mr Nielsen objected to this saying they should have been submitted much earlier.

The Court adjourned the case in April for this further information but listed the trial for August 1992. By that date, the information was not available from the NBI. The payment of an obligatory charge by the defendants’ counsel to the NBI had only arrived in November 1992, and in January 1993 the NBI announced it could not submit a reply on the basis of the previous medical examinations, as they were considered too old. NBI experts again examined Mr Nielsen for the final time in June 1994.

The Court eventually heard the case in January 1995 and the defendants were found to be liable to the extent of 950,803.60 Danish Crowns, plus interest. There was an appeal lodged in February 1995 (heard in September 1995) which upheld the original judgement.

Mr Nielsen complained to the European Court of Human Rights in October 1996 against the state of Denmark, that the proceedings had taken 8 years, 6 months and 13 days, and that this was contrary to Article 6 which indicates that ‘everyone is entitled to a fair and public hearing within a reasonable time...’. Denmark in turn argued that the conduct of the parties was the reason for the duration of the proceedings. Denmark said that Mr Nielsen was late several times in fulfilling requests for further and better particulars, that the defendants had contributed to the delay when not funding the NBI obligatory charge and that the Municipality had taken 10 months to give information to the NBI.

The European Court of Human Rights rejected this submission completely. It said that the applicant had become partly disabled, and that in such cases special expedition was called for and that there was no reasonable explanation for the length of the proceedings. It said that States are responsible for public law bodies such as the Municipality and of course for the Courts who are obliged to ensure that trials proceed expeditiously. All the requests for NBI opinions (which the Government had argued was excessive) were approved by the Court, and at the time of the last request (1992) the proceedings had been pending for 4 years.

The ECHR found "having regard to the delays imputable to the State, the overall duration of the proceedings and what was at stake for the applicant, the ‘reasonable time’ requirement was not satisfied" and article 6.1 had been breached, and awarded Mr Nielsen 70,000 Danish Crowns in compensation.

Whilst the UK in the same case will now say that the new Civil Procedure Reforms (the Woolf Reforms) will reduce delays because the Court manages the litigation process, the reality is that many personal injury cases last as long if not longer than this case.

The UK Courts themselves are clearly a ‘public authority’ under the Human Rights Act 1998, which will be implemented as from October 2000, and according to this judgement from the European Court of Human Rights, they would be liable for the delay.

The insurance companies do not get off lightly. Once a matter is before a Court then the Court is able to impose penalties on litigants who do not act in accordance with the timetable set. If this is an insurance company then financial penalties could be imposed.

After the 1998 Human Rights Act is implemented, the Courts will have even more pressure on them to deal with cases expeditiously, so as to avoid findings against them that they have transgressed a litigant’s rights.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.