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Lord Clarke said,

The European Convention for the Protection of Human Rights and Fundamental Freedoms

46. The right to a fair and public hearing in the determination of civil rights is enshrined in article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The right includes a right of access to a court: Golder v United Kingdom (1975) 1 EHRR 524.

The court must act compatibly with article 6 : Human Rights Act 1998, section 6(1).

The court is of course itself a public authority: section 6(3).

The right of access is not absolute: Golder , at para 38.

In Ashingdane v United Kingdom (1985) 7 EHRR 528 the European Court of Human Rights accepted, at para 57, that the right might be subject to limitations. Contracting states enjoy a margin of appreciation. However, the essence of the right of access must not be impaired, any limitation must pursue a legitimate aim and the means employed to achieve the aim must be proportionate.

47. In the instant case the claimant obtained judgment on liability for damages to be assessed. We accept that that judgment is a possession within the meaning of article 1 of the First Protocol to the Convention and that the effect of striking out his claim for damages would be to deprive him of that possession, which would only be permissible if “in the public interest and subject to the conditions provided for by law …” The state has a wide margin of appreciation in deciding what is in the public interest, but is subject to the principle of proportionality: Pressos Cia Naviera SA v Belgium (1995) 21 EHRR 301 , paras 31–39.

48. It is in the public interest that there should be a power to strike out a statement of case for abuse of process, both under the inherent jurisdiction of the court and under the CPR , but the court accepts the submission that in deciding whether or not to exercise the power the court must examine the circumstances of the case scrupulously in order to ensure that to strike out the claim is a proportionate means of achieving the aim of controlling the process of the court and deciding cases justly.

[Formatted for ease of reading.]

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