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AS TO THE ADMISSIBILITY OF

Application No. 25353/94

by Michael C.G. McMULLEN

against Ireland

The European Commission of Human Rights (First Chamber) sitting

in private on 10 September 1997, the following members being present:

Mr. M.P. PELLONPÄÄ, Acting President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 6 April 1994 by

Michael C.G. McMULLEN against Ireland and registered on 29 September

1994 under file No. 25353/94;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on 3 May

1996 and the observations in reply submitted by the applicant on

10 June 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen living in Ireland born in

1942. The facts as submitted by the parties may be summarised as

follows.

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.

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. 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

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.

Between 16 July 1991 and 31 July 1991 the hearing before the

Irish High Court took place. On 18 February 1992 a written judgment of

Mr. Justice Barron 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 defendants 2 and 3 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.

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.

COMPLAINT

The applicant complains of the length of proceedings under

Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 6 April 1994 and registered on

29 September 1994.

On 28 February 1996 the Commission decided to communicate the

applicant's complaint concerning the length of the proceedings to the

respondent Government and to declare the remainder of the application

inadmissible.

The Government's written observations were submitted on 3 May

1996. The applicant replied on 10 June 1996.

THE LAW

The applicant complains that the length of proceedings exceeded

a reasonable time, in violation of Article 6 para. 1 (Art. 6-1) of the

Convention.

Article 6 para. 1 (Art. 6-1) of the Convention provides, so far

as relevant, as follows:

"1. In the determination of his civil rights and obligations

... everyone is entitled to a fair and public hearing within a

reasonable time ..."

The Government consider that the commencement of the proceedings

for the purpose of Article 6 para. 1 (Art. 6-1) 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.

The applicant submits that the length of the proceedings was

unreasonable in the circumstances.

The Commission considers that, in the light of the criteria

established in the case law of the organs of the Convention concerning

"reasonable time" (complexity of the case, conduct of the parties and

the conduct of the authorities dealing with the case), the application

raises serious issues of fact and law which cannot be resolved at the

present stage of the examination of the application, but calls for an

examination of the merits.

For these reasons, the Commission, by a majority,

DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary Acting President

to the First Chamber of the First Chamber

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McMULLEN v. IRELAND

McMULLEN v. IRELAND

LEXI