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the national press was a possibility open to the Earl and Countess
Spencer, the "Yellow Advertiser" had a local as opposed to a
national circulation.
3. The Court's conclusion
113. In such circumstances, the Court finds that the applicant
had no effective remedy in relation to the violation of his right
to respect for his private life guaranteed by Article 8 of the
Convention. The Court does not accept as relevant the Government's
argument that any acknowledgement of the need to have a remedy
will undermine the important conflicting rights of the press
guaranteed by Article 10 of the Convention. As noted above, the
Council, and therefore the media, could have achieved their
objectives by properly masking, or taking appropriate steps to
ensure such masking of, the applicant's identity.
114. Accordingly, there has been a violation of Article 13 of
the Convention.
III. Application of Article 41 of the Convention
115. Article 41 of the Convention provides:
"If the Court finds that there has been a violation of the
Convention or the Protocols thereto, and if the internal law of
the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just
satisfaction to the injured party."
116. The applicant claimed compensation for the non-pecuniary
damage suffered by him and reimbursement of his pecuniary losses
and his legal costs and expenses. The Government contested these
claims.
A. Non-pecuniary damage
117. The applicant claimed 7,500 pounds sterling (GBP) in
respect of non-pecuniary loss. He underlined the distress,
anxiety, embarrassment and frustration suffered by him as a
consequence of the impugned disclosures: he had been the subject
of taunts, jokes and abuse from neighbours, the assumption was
made that he was part of a crime problem and he had to explain his
personal problems to his family after the relevant coverage in the
media. He emphasised that the footage related to a distressing
time for him, that the dissemination was without his knowledge or
consent, that the consequent publications and broadcasts were at
local and national level and that he had no remedy in national
law.
The Government argued that the finding of a violation would
constitute sufficient just satisfaction in itself or,
alternatively, that a sum of approximately GBP 4,000 would be
appropriate compensation.
118. The Court observes that some forms of non-pecuniary
damage, including emotional distress, by their very nature cannot
always be the object of concrete proof. However, this does not
prevent the Court from making an award if it considers that it is
reasonable to assume that an applicant has suffered injury
requiring financial compensation (Davies v. the United Kingdom,
No. 42007/98, з 38, 16 July 2002, unreported).
119. The Court has noted above the reasons why it considered
the interference with the applicant's private life to be a serious
one and the personal consequences for the applicant of the wide
dissemination of the footage, together with the absence of any
effective remedy in these respects (in this latter respect, see
D.P. and J.C. v. the United Kingdom, No. 38719/97, з 142, 10
October 2002, unreported). It considers that the applicant must
thereby have suffered significant distress, embarrassment and
frustration which is not sufficiently compensated by a finding of
violation.
120. The Court therefore awards the applicant on an equitable
basis 11,800.00 euros (EUR) in respect of non-pecuniary damage.
B. Pecuniary loss
121. The applicant also claimed reimbursement of pecuniary loss
incurred by him as a direct result of the matters constituting a
violation in this case. In particular, he claimed compensation in
the sum of GBP 2,500 for expenses he incurred in pursuing his
applications before the BSC, the ITC, the PCC, the High Court and
this Court. These losses included his travel expenses (to attend
meetings with his representatives and to attend hearings), loss of
salary (due to the nature of his work the applicant claimed to
have lost wages for the periods he was obliged to attend meetings
and hearings), together with postage and telephone costs. The
Government pointed out that the applicant claimed those expenses
without providing any evidence. They added that, in so far as they
were incurred in domestic proceedings, they were not necessarily
and reasonably incurred in the course of the Convention
proceedings and were not therefore recoverable.
122. The Court observes that these claims of the applicant have
not been sufficiently detailed by him, the applicant claiming a
global figure for all such expenses, and that, importantly, he has
not submitted any documents vouching such pecuniary losses. In
such circumstances, the Court does not award the applicant
compensation for pecuniary damage.
C. Legal costs and expenses
123. The applicant further claimed reimbursement of his legal
costs of both the domestic and Convention proceedings.
124. As to the domestic proceedings, the applicant claimed GBP
5,047.40 (inclusive of VAT) in respect of proceedings before the
PCC, the ITC and the BSC. This was based on a charge-out rate of
GBP 140 per hour for a senior solicitor and GBP 100 per hour for a
legal officer. In addition to telephone calls and letters, 3 hours
and 45 minutes were accorded to the PCC proceedings and 1 hour and
55 minutes were accorded to the ITC proceedings, the applicant not
specifying whether this represented the time of the solicitor or
the legal officer. Additionally, the applicant claims for 13 hours
and 25 minutes of solicitor's time and 5 hours of a legal
officer's time for the BSC proceedings. It appears that legal aid
was available for the judicial review proceedings, and no claim
was made in that respect.
The Government rejected this claim, arguing that the costs were
not necessarily or reasonably incurred in the course of Convention
proceedings.
125. The applicant also claimed GBP 11,563.54 in respect of the
costs to date of the Convention proceedings up to and including
research on the submissions to be made under Article 41 of the
Convention. This represented work done by a solicitor and a legal
officer (at the hourly rates set out above) and by a Queen's
Counsel. A detailed bill of costs was submitted which noted time
spent at each stage and disbursements, including Counsel's fees.
Counsel's fee note has also been submitted (in the amount of GBP
1,727.25). The Government submitted that the costs claimed should
be reduced if the Court was to find only partially in favour of
the applicant and by any legal aid paid to the applicant.
126. Finally, the applicant claimed GBP 19,000 approximately
(inclusive of VAT) in respect of the "anticipated costs" of
Convention proceedings after the admissibility stage and prior to
this judgment. The Government commented that this aspect of his
claim was too speculative and that any future costs should be
addressed if and when they were incurred.
127. The Court recalls that only legal costs and expenses found
to have been actually and necessarily incurred and which are
reasonable as to quantum are recoverable under Article 41 of the
Convention (Lustig-Prean and Beckett v. the United Kingdom (just
satisfaction), nos. 31417/96 and 32377/96, з 32, 25 July 2000,
unreported). The Court further recalls that the costs of the
domestic proceedings can be awarded if they are incurred by
applicants in order to try to prevent the violation found by the
Court or to obtain redress therefor (see, among other authorities,
Le Compte, Van Leuven and De Meyere v. Belgium, judgment of 18
October 1982, Series A No. 54, з 17). Costs in respect of the
domestic proceedings were in fact awarded at paragraphs 30 - 33 of
the above-cited case of Lustig-Prean and Beckett (just
satisfaction).
128. Accordingly, the Court considers that it was reasonable,
given the absence of other remedies, for the applicant to have
sought some public recognition of the breach of his privacy and
some vindication of his position before the media commissions.
Indeed, the Government argued, in the context of Article 13, that
these commissions formed part of the legal regime of privacy
protection in the United Kingdom and allowed the applicant to
"assert and vindicate" his rights. The applicant was in fact
successful before the BSC and ITC, both bodies recognising that
there had been a breach of privacy and their decisions being later
published. He may have been unsuccessful before the PCC, but this
does not imply that the costs incurred in this connection can be
considered to have been unnecessarily incurred (see, for example,
Findlay v. the United Kingdom, judgment of 25 February 1997,
Reports 1997-I, з 91). Nevertheless, the Court does not consider
that all of the fees were reasonable as to quantum given the
nature of the proceedings before those bodies and, in particular,
it considers excessive the hours billed in respect of the BSC
complaint and the level of involvement of both a legal officer and
a senior solicitor.
129. Accordingly, the Court awards, on an equitable basis, EUR
3,000 in relation to the costs of the domestic proceedings.
130. As to the Convention proceedings, the Court has noted the
detailed bill of costs of the applicant's representatives and that
both of his complaints (under Article 8 alone and in conjunction
with Article 13) have been found to disclose violations of the
Convention. As to the Government's objections to his claim for
anticipated costs, the Court would not make an award as regards
costs in respect of post-admissibility observations since none
were required to be, or were, submitted on the applicant's behalf.
On the other hand, it considers that the costs of researching,
drafting and filing the Article 41 submissions were necessarily
incurred and reasonable as to quantum.
131. The Court, accordingly, awards the applicant a total sum
of EUR 15,800 in respect of the costs of the Convention
proceedings less EUR 725 paid by the Council of Europe to the
applicant in legal aid, the net award in respect of the Convention
proceedings amounting to EUR 15,075.
132. The total award in respect of the legal costs and expenses
of the domestic and Convention proceedings amounts therefore to
EUR 18,075.
D. Default interest
133. The Court considers it appropriate that the default
interest should be based on the marginal lending rate of the
European Central Bank to which should be added three percentage
points (see Christine Goodwin v. the United Kingdom [GC], No.
28957/95, з 124, ECHR 2002-).
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 8 of the
Convention;
2. Holds that there has been a violation of Article 13 taken in
conjunction with Article 8 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within
three months from the date on which the judgment becomes final
according to Article 44 з 2 of the Convention the following
amounts to be converted to pounds sterling on the date of
settlement:
(i) EUR 11,800 (eleven thousand eight hundred euros) in
respect of non-pecuniary damage;
(ii) EUR 18,075 (eighteen thousand and seventy five euros)
in respect of costs and expenses, inclusive of any value-added
tax that may be chargeable;
(b) that from the expiry of the above-mentioned three months
until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the
European Central Bank during the default period plus three
percentage points;
4. Dismisses the remainder of the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 28 January 2003,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
Matti {PELLONPAA)
President
Michael O'BOYLE
Registrar
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