EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 25353/94

Michael C.G. McMULLEN

against

Ireland

REPORT OF THE COMMISSION

(adopted on 21 October 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-7) 1

II. ESTABLISHMENT OF THE FACTS

(paras. 8-11) 2

III. OPINION OF THE COMMISSION

(paras. 12-26) 4

A. Complaint declared admissible

(para. 12) 4

B. Point at issue

(para. 13) 4

C. As regards Article 6 para. 1 of the Convention

(paras. 14-25) 4

CONCLUSION

(para. 26) 5

APPENDIX I: PARTIAL DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION 6

APPENDIX II: FINAL DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION 13

I. INTRODUCTION

1. The present Report concerns Application No. 25353/94 introduced on 6 April 1994 against Ireland and registered on 29 September 1994.

2. The applicant is an Irish national born in 1942 and resident in Ireland.

3. The respondent Government are represented by their Agent, Ms. E. Kilcullen , of the Department of Foreign Affairs.

4. The application was communicated to the Government on 28 February 1996.  Following an exchange of written observations, the complaint relating to the length of proceedings (Article 6 para. 1 of the Convention) was declared admissible on 10 September 1997.  The decision on admissibility of 10 September 1997 (and a partial decision of 28 February 1996) are appended to this Report.  The applicant submitted observations on the merits of the case on 28 October 1997.

5. Having noted that there is no basis upon which a friendly settlement within the meaning of Article 28 para. 1 (b) of the Convention can be secured, the Commission (First Chamber), after deliberating, adopted this Report on 21 October 1998 in accordance with Article 31 para. 1 of the Convention, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

6. In this Report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by Ireland.

7. The text of the Report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

II. ESTABLISHMENT OF THE FACTS

8. The applicant claims that he discovered in 1983 that three Irish firms of solicitors had been negligent in respect of advice given to him regarding provisions in a lease. Pursuant to this lease the applicant occupied a large castle in Ireland. Various disputes arose between the applicant and the landlord, concerning the terms of the lease and relating to the right of the applicant to alienate or change the use of the castle without the landlord's consent.

9. By summons dated 19 March 1986 the applicant issued negligence proceedings in the High Court against the three Irish firms of solicitors (the first, second and third defendants), naming 14 solicitors individually (each members of one of the three firms). On 13 August 1986 the applicant delivered his statement of claim. The defence of the second defendant was delivered on 13 November 1986. On 28 November 1986 the applicant issued a notice of motion seeking judgment against the first and third defendants in default of their defences being delivered. This notice of motion was struck out by consent on 19 January 1987.  The defence of the first defendant was delivered on 5 February 1987, the defence of the third defendant remained outstanding.  The applicant made an affidavit of discovery in November 1987.  Replies to the notice for particulars were filed by the defendants in January 1989.  On 24 April 1989 the applicant again sought judgment against the third defendant in default of their defence being delivered.  On 29 May 1989 the court by consent gave the third defendant three weeks to serve a defence and the motion seeking judgment was adjourned with liberty to re-enter.  During this period discovery was also sought by all parties. On 6 July 1989 by consent all parties were ordered to make discovery within six weeks. On 15 September 1989 the applicant made a notice of motion seeking to strike out the defences of all the defendants, due to their failure to make discovery as had been ordered by the court on 6 July 1989. This notice of motion was struck out by the court on 5 December 1989. On 14 February 1990 the applicant sought further and better discovery and that in the alternative the defences of the second and third defendants be struck out for failure to comply with the order of discovery dated 6 July 1989. This notice of motion was struck out on 29 March 1990. On 28 May 1990 the applicant's appeal against the striking out motion was dismissed.  On 26 February 1991 the third defendants delivered their defence . On 21 March 1991 the applicant replied to the defences of each of the defendants, thus closing the pleadings and on the same date the applicant set down for trial. On 11 July 1991 the applicant furnished additional particulars of negligence upon the defendants.

10. Between 16 July 1991 and 31 July 1991 the hearing before the Irish High Court took place. On 18 February 1992 a written judgment was delivered. The judgment found that the second and third defendants had been negligent. The applicant was awarded 2,210 damages (representing certain planning fees) and costs against the second and third defendants jointly, that being the only item of damage claimed which the court found was attributable to the negligence established. On 1 May 1992 the High Court refused the applicant's application that costs against the second and third defendants should be awarded on a High Court scale, as the low level of damages did not merit such a costs award. The applicant filed a notice of appeal on 26 May 1992 claiming that the damages awarded were inadequate. The second defendant lodged a notice of a cross appeal on 28 May 1992 against the finding of negligence and the third defendant contested the applicant's appeal against the award of damages. On 6 November 1992 the transcript of the High Court hearing was delivered to the Supreme Court Office, the applicant's books of appeal were lodged on 22 December 1992, and on 18 January 1993 the transcript of the High Court hearing was sent to the High Court judge for approval. The transcript was approved on 25 January 1993 and on 27 January 1993 the case was certified for hearing in the Supreme Court and went into the list of cases awaiting a hearing date.

11. On 26 January 1994 the Supreme Court Appeal was heard and on 9 February 1994 judgment was handed down. The Supreme Court confirmed the finding of negligence against the second and third defendants, but found that the negligence of the second defendant was not a causative feature of any damage that the applicant had suffered. The Supreme Court therefore dismissed the applicant's appeal and confirmed the award of damages against the third defendant only. On 12 July 1994 there was a hearing before the Supreme Court in relation to the form of the Order and the applicant was ordered to pay the third defendant's costs of appeal. The applicant filed a notice of motion on 13 December 1994 seeking a stay of the costs awarded on the appeal. This issue was heard in the Supreme Court on 16 December 1994 and no stay was made.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

12. The Commission has declared admissible the applicant's complaint that his case was not heard within a reasonable time.

B. Point at issue

13. The only point at issue is whether the length of the proceedings complained of exceeded the "reasonable time" requirement referred to in Article 6 para. 1 of the Convention.

C. As regards Article 6 para. 1 of the Convention

14. The relevant part of Article 6 para. 1 of the Convention provides as follows :

"In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by (a) ... tribunal ..."

15. The proceedings in question concerned negligence claims against three Irish solicitors' firms.  The purpose of the proceedings was to obtain a decision in a dispute over "civil rights and obligations", and they accordingly fall within the scope of Article 6 para. 1 of the Convention.

16. The Commission recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case (see Eur. Court HR, Vernillo v. France judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).

17. According to the Government, the commencement of the proceedings for the purpose of Article 6 para. 1 of the Convention was 21 March 1991, the date the case was set down for trial.  The Government further allege that, taking into account the complexity of the case and discounting the delays they consider were caused by the inactivity of the applicant and the defendants, the proceedings were determined within a reasonable time.

18. The applicant submits that the length of the proceedings was unreasonable in the circumstances.             

19. The Commission considers that 19 March 1986, the date on which the applicant issued a summons alleging negligence against various solicitors, is the date of commencement of proceedings as that was the date on which the domestic courts' involvement with the case began.  The proceedings were finally resolved on 16 December 1994.  The proceedings therefore lasted in total eight years and nine months.

20. The Commission notes the complexity of the case: it involved negligence claims against fourteen different solicitors representing three separate firms of solicitors who had acted for the applicant over a period of almost ten years.

21. With regard to the conduct of the applicant, the Commission notes that from November 1987 until January 1989, the applicant was inactive in the proceedings, save issuing a notice to proceed in September 1988.  Further, between May 1990 and February 1991, the applicant appears to have taken no steps to progress the litigation.  The Commission further notes that although the defendants were apparently dilatory, the applicant attempted on several occasions in the early stages of the litigation - his applications for judgment in default of a defence of 28 November 1986 and 24 April 1989 and applications of 15 September 1989 and 14 February 1990 - for defences to be struck out for failure to comply with directions, thereby bringing to the courts' attention the problem of the time the proceedings were taking.

22. The Commission further notes that during the proceedings, there was a hearing at first instance, an appeal hearing, and a hearing as to the question of costs.             

23. However, the Commission considers that the applicant's conduct is not in itself sufficient to explain the length of the proceedings.

24. The Commission reaffirms that it is for Contracting States to organise their legal systems in such a way that their courts can guarantee the right of everyone to obtain a final decision on disputes relating to civil rights and obligations within a reasonable time (cf. Eur. Court HR, Vocaturo v. Italy judgment of 24 May 1991, Series A no. 206-C, p. 32, para. 17).  In particular, in the present case, the Commission considers that the applicant made clear to the domestic courts his dissatisfaction with the defendants' tactics, and that it was therefore incumbent that the proceedings be accelerated.

25. In the light of the criteria established by case-law and having regard to the circumstances of the present case, the Commission considers that the length of the proceedings was excessive and failed to meet the "reasonable time" requirement.

CONCLUSION

26. The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 of the Convention.

  M.F. BUQUICCHIO    M.P. PELLONPÄÄ

     Secretary President

to the First Chamber of the First Chamber