A court has to identify whether a Convention right exists in proceedings before it and can apply the Convention principles to protect that right. A restriction of Convention rights will only be justified if:
1. It is allowed by law, and
2. It pursues a legitimate aim, and
3. Is proportionate and necessary.
Individuals can bring civil proceedings against a public authority which has breached or threatens to breach their Convention rights or can rely on their Convention rights in other legal proceedings.
A right to a fair trial within a reasonable time and by an independent and impartial tribunal / court, is likely to be one of the most asserted rights in the civil courts.
Article 6(1) supports the right of access to a court, which includes offering financial help in appropriate circumstances. For example, an order that one party in a civil case pay a sum into court as security for the other party's costs could infringe Article 6(1) if that party cannot raise the sum or has a reasonable prospect of succeeding in their case. Or if a litigant is prevented from having access to a court because of financial restrictions. This may give rise to a challenge to the UK Community Legal Services Funding system, (formally Public Funding).
Article 6 also guarantees a right to be given reasons for a court decision and a right to have decisions made within a reasonable time.
Possible areas of challenge might be:
a) The changes to eligibility for Community Legal Services Funding (Public Funding) which has placed a wider number of people outside the scheme and therefore arguably has denied them access to financial assistance in bringing court proceedings.
b) Strike out provisions of part 24 of the civil procedure rules which allows cases to be struck out without the court considering all the evidence which would be available at trial.
c) The disclosure rules under the civil procedure rules which in fast track cases limits the nature and type of documents which can be disclosed (standard disclosure).
d) Expert evidence rules where there is a limitation placed on experts giving oral evidence.