THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42297/98 by Michael C.G. McMULLEN against Ireland

The European Court of Human Rights (Third Section), sitting on 4 July 2002 as a Chamber composed of

Mr G. Ress , President , Mr L. Caflisch , Mr P. Kūris , Mr R. Türmen , Mr B. Zupančič ,

Mr J. Hedigan , Mrs H.S. Greve , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 27 January 1998 and registered on 21 July 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the decision on 6 July 2000 to communicate the application and to the observations of the parties,

Having deliberated, decides as follows:

THE FACTS

The applicant is an Irish national, born in 1942 and living in Dublin. The facts of the case, as submitted by the parties, may be summarised as follows.

In 1982 the applicant issued nuisance proceedings against his landlord. Those proceedings were settled in July 1985. Subsequently, and as a result of alleged further nuisance problems and new evidence, he unsuccessfully attempted to re-enter the nuisance proceedings in 1987.

A. Proceedings A (6218P/1988) against his former solicitors (“KC”)

On 29 June 1988 he issued negligence proceedings in the High Court against the firm of solicitors (“KC”) who had acted for him in the above-described nuisance action. He took issue with the advice given to him by KC during the settlement and, in particular, in relation to the possibility of re-entering his nuisance action. KC filed an appearance dated 26 October 1988. The applicant’s statement of claim was filed on 21 December 1988 and on 9 March 1989 he filed an application seeking judgment in default of defence which he obtained from the High Court on 10 April 1989. However, KC filed its defence on 18 April 1989 and sought an order to set aside the default judgment . On 1 May 1989 the default judgment was set aside. Further particulars of the applicant’s claim were requested by KC on 10 May 1989 and the applicant responded on 30 June 1989. On 15 May 1989 KC applied for discovery and on 2 June 1989 the High Court refused that application.

On 18 July 1989 the applicant applied for discovery by KC. On 5 October 1989 the High Court ordered discovery to be made by KC within six weeks. On 28 November 1989 he applied to strike out the defence of KC as they had not made discovery as ordered. That application was adjourned on 11 December 1989 and on 15 January 1990 his strike out application was refused. On 22 February 1990 he applied for further discovery from KC and on 5 March 1990 the High Court ordered KC to make further discovery within four weeks. KC filed affidavits of discovery on 26 February and 23 April 1990. On 21 November 1990 the applicant applied for further discovery to be made by KC. The hearing of this application was adjourned on 4 and 10 December 1990 and was considered on 14 January 1991. While the specific directions of the High Court after that hearing are not known, costs were awarded against KC.

On 28 June 1991 a notice of trial was filed by the applicant. On 21 August 1991 KC filed a motion for discovery by the applicant. On 24 October 1991 the High Court struck out this motion and costs were awarded against KC. The applicant then lodged a notice to amend his statement of claim on 5 May 1992. The action was put in a list to fix a hearing date three times (between July and December 1991). On the latter occasion the hearing date was fixed for 20 February 1992. However, on that date the High Court was informed of settlement negotiations and in March or April 1992 the case was accorded a further hearing date in May 1992

The High Court heard the case on 5-7 May 1992, legal submissions were heard on 23 June 1992 and the court reserved its judgment . Judgment was delivered on 13 July 1993 dismissing the applicant’s case. The High Court judge found the evidence of a senior counsel (who had acted for the applicant in the nuisance proceedings – “SC”) more convincing than that of the applicant and found that KC had simply relied on the SC’s advice during the nuisance proceedings. Accordingly, it was found that no negligence could be attributed to KC. Costs were awarded to KC “when taxed and ascertained”.

On 30 August 1993 the applicant lodged his appeal to the Supreme Court: he argued that the High Court should not have relied on evidence of SC which was given in breach of SC’s privilege of confidentiality to the applicant. On 12 July 1995 his representatives confirmed that all documents for the appeal had been filed. A letter of 20 November 1996 confirmed to the applicant that his appeal had been listed for hearing on 3 March 1997.

However, it was then listed for mention on 21 March 1997 when the applicant’s solicitors applied and were allowed to come off record. On that date the appeal hearing was adjourned (to 11 June 1997) and final submissions were ordered to be lodged by 14 May 1997. The applicant was not represented for the remainder of the proceedings. On 10 April 1997 the applicant applied for leave to amend his appeal and on 18 April 1997 the Supreme Court granted him leave.

The appeal came on for hearing on 11 June 1997. Since one of the judges had previously participated in a High Court action brought by the applicant, the applicant was given the opportunity of having the appeal heard by a differently constituted Supreme Court, the applicant accepted and the hearing was adjourned for mention on 20 June 1997. On that latter date, the appeal was listed for hearing on 17 October 1997.

On 18 July 1997 the Supreme Court adjourned the applicant’s request for leave to introduce fresh evidence until the date fixed for the hearing of the action. Due to the illness of one of the Supreme Court judges, that hearing date was vacated. A further hearing date was set for 16 December 1997. The hearing took place on 16 December 1997 and judgment was reserved. Judgment was delivered on 27 January 1998 rejecting the applicant’s appeal. The Court found that the applicant had impliedly waived his privilege by instituting the proceedings. The court noted that, even if the alleged negligence had been established, it was questionable whether he had suffered loss as the original nuisance action on which KC had advised him was more likely to fail than to succeed. The costs of the appeal were also awarded to KC “when taxed and ascertained”.

On 20 December 1998 KC filed a note of their High and Supreme Court costs. In the absence of the applicant’s agreement on the level of the costs, on 12 January 1999 KC issued a summons to taxation, returnable for 11 February 1999. On 29 January 1999 the parties consented to the matter being adjourned until 9 March 1999. On 24 February 1999 the applicant issued a motion for an order staying the taxation of costs. On 5 March 1999 the Supreme Court dismissed his application for a stay. On 9 March 1999 the taxation matter was adjourned on a consent basis until 28 April 1999. On that date taxation of the High Court costs commenced and concluded with a stay agreed on the issuance of the taxation certificate for fourteen days on the applicant’s request. On that date also (28 April 1999) the taxation of the Supreme Court costs also commenced, but was not finalised as some information was outstanding. On 14 May 1999 the taxation of the Supreme Court costs was concluded and, on the applicant’s request, a stay was put on the issuance of the relevant certificate until 21 June 1999.

On 21 June 1999 the applicant requested and obtained a further stay until 6 July 1999. On that date leave was granted by the taxing master to KC to take up both certificates of taxation. On 30 September 1999 those certificates were taken up by KC and were served on the applicant with a demand for payment by 4 October 1999. The costs payable by the applicant amounted to almost £70,000.00 inclusive of value added taxation. Further demands were sent to the applicant on 15 October and 1 November 1999 indicating that KC would apply for his bankruptcy should he not discharge the sums due.

On 28 January 2000 KC issued and served a “notice of the particulars of demand and requiring payment”, a notice which was updated with the interest accrued and served on the applicant on 12 September 2000. KC then filed affidavits dated 16 October and 3 November 2000 and on 20 October 2000 KC issued a bankruptcy summons.

The applicant applied on 6 December 2000 to dismiss the summons. KC filed an affidavit in response on 27 February 2001 to which the applicant replied by affidavits filed on 13 March and 10 December 2001. KC therefore filed an affidavit in response on 21 December 2001. On 22 January 2002 the High Court gave the applicant time to submit a further replying affidavit. The applicant submitted this affidavit on 4 February 2002. The matter was heard by the High Court on 19 and 20 March 2002 (by a judge different from the judge sitting 22 January 2002). The detailed judgment delivered on the latter date acceded to the request for the applicant’s bankruptcy and refused his application to dismiss the summons. Noting that KC had undertaken not to take steps to enforce the bankruptcy summons for six weeks, the High Court put no stay on its order.

On 29 April 2002 the applicant appealed, requesting the Supreme Court to dismiss and stay indefinitely the bankruptcy summons. On 8 May 2002 he also issued a notice of motion before the Supreme Court requesting a stay on the order of the High Court of 20 March 2002 pending the finalisation of his appeal. On 7 June 2002 the Supreme Court rejected that motion.

B. Proceedings B (8142P/1995) against SC

On 18 October 1995 the applicant issued proceedings in the High Court against SC claiming, inter alia , that he had breached his duty of confidentiality together with duties arising out of his contractual and fiduciary relationship with the applicant. No appearance was entered by SC within the prescribed time so the applicant applied for judgment in default. On 11 December 1995 the High Court awarded SC more time to file an appearance, which he did on 30 January 1996.

Further to his application of 13 May 1996, on 10 June 1996 the High Court ordered SC to comply with the applicant’s request for further and better particulars of the defence within two weeks. On 4 November 1996 the court refused the applicant’s request (filed on 10 September 1996) to strike out the defence for failure to comply with the High Court order of 10 June1996.

On 4 February 1997 the applicant applied for discovery to be made by SC. The application was adjourned from 18 February 1997 to 20 March 1997, on which date the court ordered SC to make discovery. SC completed discovery by 16 April 1997.

On 13 May 1998 the applicant filed a Notice of Intention to Proceed. On 16 June 1998 he requested leave to amend his summons and on 29 June 1998 the court granted leave. On 13 October 1998 he served a notice of trial and the matter was set down for trial on the same day. The matter was originally listed for hearing on 6 May 1999 but it was adjourned as no judge was available. The action was heard by the High Court on 22, 23, 27 and 28 July 1999. The detailed judgment of the High Court of 3 September 1999 found against the applicant. He appealed on 29 September 1999 (his first appeal).

On 5 October 1999, at a hearing concerning costs, the applicant indicated that he wished to re-open the merits of the case. The matter was adjourned to allow SC’s representatives to take instructions. On 12 October 1999 the applicant maintained his application to re-open the proceedings relying on new evidence. On 3 November 1999 the High Court dismissed the application to re-open the proceedings and made no order for costs concerning those proceedings. On 29 November 1999 SC filed an appeal against the costs element of the order of 3 November 1999.

On 15 June 2000 the applicant’s first appeal was certified as ready for hearing. On 7 July 2000 the Supreme Court adjourned, until the hearing of his first appeal, his motion to admit new evidence and dismissed SC’s appeal. On 12 July 2000 the Supreme Court adjourned another matter raised by the applicant until the 28 July 2000, when a date was to be fixed for the hearing of his first appeal. On 28 July 2000 a date was fixed by the Supreme Court (31 January 2001) to hear his first appeal.

On 29 January 2001 the High Court ordered, further to the application of SC, that its order of 3 September 1999 which referred to the negligence of SC be amended to refer back to the text of the judgment delivered. The applicant also appealed this decision (his second appeal).

On 31 January 2001 the applicant’s first appeal was adjourned pending the hearing of his second appeal.

C. Proceedings C (No. 1628 P 2000) against solicitors (“GK”)

On 10 February 2000 the applicant issued further proceedings against a firm of solicitors – “GK” (which firm had represented KC in proceedings A – instructed by KC’s insurance underwriters – and SC in proceedings B). On the basis of a letter to which the applicant had had access during proceedings B, he alleged, inter alia , that GK had promised incentives to SC so that SC would give evidence against him.

On 19 April 2000 GK applied for the proceedings to be struck out as disclosing no cause of action. The applicant’s motion for judgment in default of defence was subsequently adjourned to be heard with the strike out motion on 7 November 2000. The hearing took place on 19 December 2000 and judgment was reserved.

On 18 October 2001 a detailed judgment was delivered striking out the claim. It noted that there was no evidence that SC had been put under any pressure to give evidence in proceedings A and that that evidence was not objected to, and no question of privilege was raised, at the material time. Indeed, the High Court noted that the applicant was attempting to re-litigate matters already adjudged in previous proceedings and it considered his case to be one that clearly could not succeed. It struck out the action.

It appears that the applicant has appealed this judgment .

D. Complaint to the Bar Council of Ireland about SC

SC was the subject of a complaint by the applicant to the Barristers Professional Conduct Tribunal of the Bar Council of Ireland.

On 24 April 1995 the tribunal found that SC had been in breach of the Code of Conduct and by decision of 24 June 1995 he was formally admonished by the tribunal for dealing directly with the applicant and for giving evidence in court as to the advice he had given to the applicant without any protest as to confidentiality or privilege.

On 21 November 1995 the Barristers’ Professional Conduct Appeals Board rejected an appeal and upheld the tribunal’s decisions.

COMPLAINTS

1. The applicant complains under Article 6 of the Convention about the length of the civil proceedings issued by him.

2. He also complains (in his application and subsequent letters to the Court) about numerous matters concerning the fairness of proceedings A, B and C, his complaints relating to the procedures before, and the findings of, the domestic courts.

3. He further complains that the domestic courts did not take account of the final resolution of the Committee of Ministers of the Council of Europe in his previous application about length of proceedings ( McMullen v. Ireland, application no. 25353/94, Commission report of 21 October 1998, unreported.)

THE LAW

1. The applicant complains under Article 6 § 1 of the Convention about the length of his domestic civil proceedings. Article 6 § 1, so far as it is relevant, provides as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.

(a) Objections to admissibility

( i ) Exhaustion of domestic remedies

The Government contend that the applicant has not exhausted domestic remedies. They argue that he has an unenumerated constitutional right to litigate and to have access to court together with an entitlement to damages for a breach of that right. He could therefore have argued before the High and Supreme Courts that he had a constitutional right to a decision within a reasonable period of time and requested that that right be put into effect or, in default, damages. The applicant submits that there is no effective remedy available under Irish law to complain about the length of proceedings.

The Court recalls that an applicant is required to make normal use of domestic remedies which are effective, sufficient and accessible. In a legal system which provides constitutional protection for fundamental rights, it is incumbent on the aggrieved individual to test the extent of that protection and, in a common law system, to allow the domestic courts to develop those rights by way of interpretation. Nevertheless, the burden of proving the existence of effective and sufficient remedies lies upon the State invoking the rule ( Croke v. Ireland , (dec.), no. 33267/96, 15 June 1999, and Quinn v. Ireland , (dec.), no. 36887/97, 21 September 1999, both unreported).

It is not disputed that there is no remedy in Ireland which has been specifically designed or developed to provide a remedy in respect of the length of court proceedings, whether preventative or compensatory in nature. In addition, the Government have not cited any domestic case-law to demonstrate that anyone has ever made such an application, let alone made any such application successfully. No domestic case-is law cited by the Government to show that a right to a hearing within a reasonable period of time has been expressly recognised by the courts to be an unenumerated constitutional right. There are no detailed submissions on the availability of damages for delay already suffered or on the possibility of such an action being preventative of further delay ( Kudła v. Poland [GC], no. 30210/96, ECHR 2000-XI, § 159, and Matthies-Lenzen v. Luxembourg, no. 45165/99, (dec.), 14 June 2001). Even if it cannot be excluded that, in a common-law constitutional system, such an unenumerated constitutional right combined with such a compensatory and preventative remedy could be developed in proceedings in the future, no domestic case-law is cited by the Government to demonstrate that any such constitutional action could itself be sufficiently quick to be effective.

The Government also suggest that a further exhaustion issue arises from the fact that the proceedings have not yet ended. However, the Court’s constant case-law provides that proceedings do not have to be at an end in order for an individual to complain about their length ( Joanna Malicka-Wąsowska v. Poland , (dec.), no. 41413/98, 5 April 2001, unreported).

In such circumstances, the Court does not consider that the Government have discharged the onus on them to show that the applicant had available to him an effective domestic remedy in respect of the length of his domestic proceedings and those complaints cannot be rejected on this basis.

(ii) Other objections

The Government further submit that the applicant seeks relief (including vindication, correction of records and his “equitable reinstatement”), which is not available under the Convention and that, accordingly, his application is an abuse of the right of individual petition. The Court notes that the applicant is not represented before this Court. It does not consider that his expression in the terms noted above of the “object of his application”, renders his application an abuse of process.

The Government also refer to the applicant’s failure to adequately link his grievances to the Convention provisions as required by Rule 47 of the Rules of Court and argue that this renders his application inadmissible and prejudices the Government’s ability to respond to his complaints. It is further argued by the Government that the applicant did not specifically complain about the length of proceedings B.

The Court recalls that “[being] master of the characterisation to be given in law to [the] facts” of a case, it can examine in the light of the Convention as a whole the situation impugned by an applicant. In the performance of this task, it is free to give to the facts of the case a characterisation in law which may be even different from that given by the applicant ( Handyside v. the United Kingdom judgment of 7 December 1976, Series A no. 24, § 41, and Guzzardi v. Italy judgment of 6 November 1980, Series A no. 39, § 63).

In the present case, the applicant is not represented and expressly complained to the Court under Article 6 of the Convention about the length of civil proceedings and he furnished detailed information, in his application and subsequent correspondence, about his ongoing civil proceedings including details of proceedings A, B and C. The Court communicated to the Government questions concerning the length of proceedings A and B and they have responded to those questions.

In such circumstances, the Court does not see any bar to the admissibility of the application based on these submissions of the Government.

(b) Merits of the “reasonable time” complaint

( i ) Proceedings A

The applicant complains about the length of the proceedings against his former solicitors.

The Government maintain that any delay is attributable to the way in which the applicant conducted the proceedings and they emphasise that under Irish law the responsibility for prosecuting civil litigation lies with the parties. They refer, inter alia , to the fact that the applicant could have filed a notice of trial at any time after the issues of fact were ready for trial, that he should have done so once he was satisfied with the defendant’s discovery but that he did not do so until 2 years after the defence had been filed. He lodged books of appeal two years after the notice of appeal had been filed. He also was responsible for a number of adjournments: of the High Court hearing in February 1992, of the appeal hearing on 21 March 1997 and of the appeal hearing in June 1999. Finally, the taxation of costs’ proceedings should not be included in the consideration of the proceedings as a whole as, contrary to the position in the Robins’ case (Robins v. the United Kingdom, judgment of 23 September 1997, Reports of Judgments and Decisions 1997-V), the applicant did not specifically complain about the length of those proceedings. In any event, the Government argue that the applicant was himself responsible for any delay in the taxation proceedings given, inter alia , his applications for stays.

The applicant maintains that the courts are responsible for most of the delay in the proceedings. He accepts that there was a delay in lodging his books of appeal but claims this was because he was awaiting the decision of the Barristers’ Professional Conduct Tribunal on 24 June 1995 which was relevant to his appeal.

The Court notes that the case began when the applicant issued proceedings on 29 June 1988, that the action is not yet terminated and that the proceedings have been in being for almost 14 years. It considers, in the light of the criteria established by the case-law of the Convention institutions on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required. It therefore concludes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

(ii) Proceedings B

The applicant also complains about the length of the proceedings against his former barrister, SC. The Government repeat that any delay is attributable to the way in which the applicant and the other parties conducted these proceedings and they again refer to the responsibility in domestic law on the parties for the pursuit of civil litigation. In particular, they consider that the delay between the issuance of the proceedings and the service of the notice of trial (from 18 October 1995 to 13 October 1998) is attributable to the parties and not to the State, and that the delay after full discovery by SC and the service of the notice of intention to proceed (from 16 April 1997 to 13 May 1998) is attributable to the applicant.

The applicant maintains that the delay was caused by the judicial authorities. However, he concedes that the delay between 16 April 1997 and 13 May 1998 resulted from him concentrating on the appeal in proceedings A and because he awaited the ruling eventually delivered in January 1998 as he believed it would be relevant to the current proceedings.

In line with its constant case-law, the Court will assess the reasonableness of the length of the impugned proceedings in the light of the particular circumstances of the case having regard to its complexity, to the conduct of the applicant and to that of the authorities dealing with the case (see, among other authorities, the Gast and Popp v. Germany judgment of 25 February 2000, Reports 2000-II, § 70).

It is further recalled that a State is obliged to organise its legal system so as to allow the courts to comply with the reasonable time requirement of Article 6 ( Süßmann v. Germany judgment , Reports 1996-IV, fasc . 15, 16 September 1996, §§ 55-56). The Court does not accept therefore the Government’s submission that the principle that the parties are responsible in domestic law for the progress of the proceedings absolves the courts from ensuring that the matter is dealt with within a reasonable time (Union Alimentaria Sanders SA v. Spain judgment of 7 July 1989, Series A, no. 157, § 35). However, while the applicant is entitled to make use of all procedural rights, he must bear the consequences when it leads to delays ( Joanna Malicka-Wąsowska v. Poland , cited above). Furthermore, an individual needs to show diligence in carrying out the procedural steps relevant to him, to refrain from using delaying tactics and to avail himself of the scope afforded by domestic law for shortening the proceedings ( Deumeland v. Germany judgment of 29 May 1986, Series A, no. 100, § 80).

The Court observes that the proceedings began on 18 October 1995 and appear to be still pending, a period of approximately six years and eight months.

As to the complexity of the proceedings, and while proceedings B had to be considered against the background of proceedings A, the Court does not accept that the former was significantly complicated by the latter. In addition, it does not consider the subject matter of proceedings B (issues of breach of fiduciary duty and negligence) especially complex nor the procedural aspects of the case to be particularly arduous.

The Court considers that the conduct of the applicant, and the delay caused by his numerous applications, significantly contributed to the length of the proceedings for which delay he must take responsibility. This is particularly so for the period between 29 September 1999 to date, during which time the applicant lodged two appeals to the Supreme Court, applied to re-open the merits of the case and issued a motion to admit new evidence and he was consequently before the High and Supreme Courts on at least six occasions. In addition, almost a year elapsed between the completion of discovery by SC and the applicant’s filing of a notice of intention to proceed and, having subsequently applied to amend his plenary summons (in June 1995), he did not set his case down for trial until 13 October 1998.

With respect to the conduct of the national authorities, it is true that the delay of nine months between the applicant’s notice of trial and the hearing of the case, together with the further delay of a month and a half were attributable to the competent authorities. However, the Court does not consider that these delays, even when viewed cumulatively, contributed unreasonably to the length of the proceedings.

In sum, while the overall length of proceedings to date amounts to approximately six years and eight months, the Court attributes to the applicant responsibility for significant delay in the case. It recalls that in its decision in the above-cited case of Joanna Malicka-Wąsowska v. Poland no violation was found where proceedings lasted six years and six months given the conduct of the applicant who was considered responsible for almost one year and nine months’ delay.

Accordingly, this complaint is inadmissible as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

(iii) Proceedings C

The applicant commenced these proceedings (on 10 February 2000) after the introduction (on 21 July 1998) of his application to this Court and he complained specifically about the length of these proceedings in his letter of 21 October 2001. Those proceedings appear to be still continuing.

The Court has applied the same criteria outlined above to assess the reasonableness of the length of these proceedings. Most significantly, the proceedings have been in being for a relatively short period of time (approximately two years and four months). Whilst a delay of ten months between a hearing and judgment (the High Court) would normally pose some difficulty in terms of the reasonable time guarantee of Article 6 § 1, the detailed judgment included a necessary synthesis of the facts of two related and ongoing proceedings (proceedings A and B), required consideration of a cross-application for judgment in default of defence and, importantly, was delivered within one year and eight months of the start of the proceedings.

In such circumstances, and in particular given their relatively short overall length, the Court finds that the proceedings have not exceeded the reasonable time requirement of Article 6 § 1 of the Convention. Accordingly, this complaint is inadmissible as manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant also complains about the fairness and findings of the domestic courts in proceedings A, B and C.

As regards proceedings A, he considers that the judgments on the substantive matters are incorrect, partial and unsafe and that there was inequality of arms. The High Court should not have favoured the testimony of SC over his own and should not have even accepted the evidence of the SC as an ordinary witness in violation of the duty of confidentiality of SC to the applicant. The judges of the Supreme Court on 16 December 1997 were hostile, did not listen to him and ruled inappropriately. He considers prejudicial the High Court judge’s description of him as the “bankrupt” on 22 January 2002.

As to proceedings B, he mainly asserts that the High Court judge was incompetent and partial and unacceptably amended the order of the High Court of 3 September 1999. The Supreme Court judges were also hostile in these proceedings, did not listen to him and ruled inappropriately on 7 July 2000. As to proceedings C he alleges that the High Court decision was wrong and that the correct procedures were not adhered to.

More generally, he suggests that his right of access to court has been thwarted by a “confederacy and conspiracy between officers of the courts and others”. He further considers that the pursuit of the costs against him and the consequent bankruptcy proceedings were part of this process of persecution.

The Court has considered these complaints under Article 6 of the Convention. It recalls that it is not a court of appeal from the domestic courts and cannot intervene to investigate allegations that they have reached the wrong decision on the evidence before them (see, for example, Bullivant v. the United Kingdom , (dec.), no. 45738/99, 28 March 2000, unreported). As a general rule, it is not within the province of this Court to substitute its own assessment of the facts for that of the domestic courts and it is for those courts to assess the evidence before them. This Court’s task therefore is to ascertain whether the proceedings in their entirety (including appeal proceedings) were as a whole fair as required by Article 6 § 1 ( Barberà , Messegué and Jabardo v. Spain judgment of 6 December 1988, Series A no. 146, § 68; Helmers v. Sweden judgment of 29 October 1991, Series A no. 212, § 31; Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-B, § 33, and Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 247-B, § 34).

The Court finds that the applicant has not demonstrated that any matter raised by him in connection with proceedings A, B or C, constitutes a failure to comply with the fairness requirements of Article 6 § 1 of the Convention. It observes that the applicant, while not legally represented after 21 March 1997, had sufficient opportunity to open his evidence and make his legal submissions to the courts. He does not submit that he applied for, but was refused, legal aid.

While he has submitted many transcripts of the various motions and other hearings before the domestic courts, there is no evidence of incompetence, prejudice, bias (subjective or objective), hostility or inappropriate comments as alleged. It is true that the High Court judge on 22 January 2002 referred to him as the “bankrupt”. However, it is clear that this was a question put by the bench to establish whether the applicant was, in fact, the subject of the bankruptcy proceedings; the judge corrected himself referring to the applicant as the “person prejudiced” by the proceedings and, in any event, a different High Court judge subsequently heard the substantive bankruptcy matter on 19 and 20 March 2002.

As to the taking of evidence during proceedings A from SC allegedly in violation of a duty of confidentiality owed by SC to the applicant, it is true that the Barristers Conduct Tribunal admonished SC for not objecting to giving evidence during proceedings A. However, the Court notes that it was the applicant that initiated the proceedings against his solicitors and that it was clearly foreseeable that those solicitors would rely on the advice given by SC, who was the advising senior counsel in the original nuisance action. Despite this, and as noted by the High Court (in its judgment of 18 October 2001), SC was not put under any pressure to give evidence, no objection was made by the applicant and, in particular, he did not raise any question of privilege at the time SC gave evidence even though he was legally represented at the time.

In relation to the amendment of the order of the High Court of 3 September 1999, it is noted that the order was revised simply to refer back to the appropriate paragraph in the detailed judgment to which the order related. The substance of the decision of the High Court was not therefore changed or revised.

Finally, the Court does not find that the applicant was the subject of persecution as alleged or at all. In particular, the actions of KC as regards the applicant’s bankruptcy amounted to a defendant enforcing a substantial costs order in its favour.

Accordingly, and even assuming that the applicant’s complaints are not premature (given the outstanding appeals), the Court concludes that taking the proceedings A, B and C as a whole there is no evidence that the proceedings were unfair within the meaning of Article 6 § 1 of the Convention. It follows that this complaint must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

3. Finally, the applicant complains that the domestic courts did not take account of, and act upon, the final resolution of the Committee of Ministers in his previous application where the former Commission found other domestic proceedings of his to have exceeded the “reasonable time” requirement of Article 6 (no. 25353/94, Commission Report, cited above).

The Court observes that the applicant is not suggesting that the Irish State does not consider itself bound by decisions of the Convention organs (including the aforementioend resolution of the Committee of Ministers), by which decisions it is clearly so bound.

In so far as he is submitting that proceedings A, B and/or C should have been determined within a reasonable period of time by the domestic courts, the Court has considered these complaints at parts 1. and 2. above.

In so far as he maintains that the Irish courts should directly apply the case-law of the Convention organs (including the aforementioend resolution of the Committee of Ministers), the Court notes that the Irish courts do not consider the provisions of the Convention, or the caselaw of the Convention organs, to be binding since the Convention has not yet been incorporated into domestic law. It is recalled that the Convention does not lay down for the Contracting States any given manner by which it must ensure within its internal law the effective implementation of any of the provisions of the Convention, for example, by incorporating the Convention into domestic law (Silver and Others v. the United Kingdom judgment of 25 March 1983, Series A no. 61, § 111-119, and the above-cited decision in the case of Quinn v. Ireland ).

In such circumstances, this complaint is also manifestly ill-founded and must be declared inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court by a majority

Declares admissible, without prejudging the merits, the applicant’s complaint under Article 6 § 1 of the Convention about the length of the proceedings which began on 29 June 1988;

Declares inadmissible the remainder of the application.

Vincent Berger Georg Ress Registrar President