THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 50389/99 by Terence and Maureen DORAN against Ireland

The European Court of Human Rights (Third Section), sitting on 28 February 2002 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr P. Kūris , Mr B. Zupančič , Mr J. Hedigan , Mr K. Traja , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 14 January 1997 and registered on 18 August 1999,

Having deliberated, decides as follows:

THE FACTS

The applicants are Irish citizens, born in 1958 and 1957, respectively, and they both live in County Wicklow, Ireland. The facts of the case, as submitted by the parties, may be summarised as follows.

On 12 September 1990 the applicants agreed to buy a site with planning permission from “the vendors” on which they intended to build a house. The sale was completed in October 1990. It then emerged that, because of discrepancies in the relevant site maps on which they relied during the sale, they did not have access to the site from the road. They were obliged to discontinue building and to sell the site.

On 31 May 1991 the Minister for Agriculture and Food established the Tribunal of Enquiry into the Beef Processing Industry (“Beef Tribunal”) and nominated the President of the High Court to be the sole member of the Tribunal. While conducting the Beef Tribunal, the President continued, when possible, to sit in cases before the High Court.

On 17 July 1991 the applicants instituted High Court proceedings for negligence, negligent misstatement, breach of contract, misrepresentation and breach of warranty against their solicitors, the vendors and the vendors’ solicitors. On 10 March 1992 the High Court ordered discovery on a consent basis. Pursuant to the applicants’ motion and the defendants’ consent, on 4 May 1992 the High Court ordered the defendants to file their defence within 4 weeks. Further motions of the applicants were struck out on 22 and 24 June and on 19 October 1992.

The case was originally listed for hearing on 8 July 1993 but was adjourned to 6 October 1993 due to the illness of the defendant. On 6 October no judge was available and the matter was finally heard on 7 October 1993 when the President of the High Court (“the trial judge”) made himself available. He notified the parties that his tribunal commitments meant that he had only two days for their case and that, if their case took longer, he would be obliged to adjourn their case until after the Beef Tribunal. The parties agreed to go ahead on this basis.

The applicants’ case was heard on 7 and 8 October 1993 and, since it was unfinished, the trial judge adjourned it. On 2 November 1993 and 8 February 1994 the applicants wrote to the Chief Registrar of the High Court recalling the adjournment of the hearing and requesting enquiries to be made as to when the action would be heard. On 16 March 1994 the applicants again wrote to the Registrar asking him to intervene with the trial judge to fix a date and enclosing a medical report of the second applicant’s doctor dated 12 March 1994 (see below). The Registrar was also contacted by telephone on numerous occasions by the applicants regarding a hearing date. In March 1994 the Registrar informed the applicants by telephone that the trial judge had confirmed a hearing date in July 1994. A letter to the Registrar of 9 June 1994 requested that hearing date be fixed.

The applicants also wrote to numerous members of Dáil Eireann (the parliament) including the Minister for Justice during this period. The Deputy Chair of Dáil Eireann indicated, in a letter dated 25 March 1994, that he had interceded on the applicants’ behalf with the trial judge.

On 29 July 1994 the trial judge completed his report on the Beef Tribunal. On 19 September 1994 he was appointed Chief Justice of the Supreme Court. The trial judge resumed the hearing of the applicants’ case on 5 October 1994. He heard the last two witnesses, requested legal argument in writing and reserved judgment, indicating that he would deliver judgment approximately one week after receipt of the written submissions. Those submissions were made by the end of October 1994

On 29 November 1994, 2 February, 12 April and 22 May 1995 the applicants wrote to Registrars of the High Court requesting information as to when the judgment would be delivered. A response dated 26 May 1995 confirmed that the trial judge could not confirm when he could deliver his judgment given his heavy commitments. Further to the applicants’ letter, the Minister for Justice indicated that, while she could not intervene, she had brought the matter to the attention of a Registrar of the High Court. The applicants also wrote to a Registrar by letter of 12 July 1995 again requesting an early delivery date. A Registrar’s response dated 13 July 1995 indicated a delivery date before the end of the month and, further to the applicants’ reminder, a Registrar confirmed delivery on 12 September 1995.

Judgment was delivered on that date. Both the vendors and the applicants’ former solicitors were found liable in damages and the claim against the vendors’ solicitors was dismissed. On 21 September 1995 the Court made various orders concerning damages (adjournment of the assessment of damages to be paid to the applicants) and costs to be paid by the unsuccessful parties. The text of the judgment was not available until mid-October 1995. On 3 November 1995 the applicants appealed the order concerning the vendors’ solicitors to the Supreme Court.

Since neither of the parties had reserved a stenographer during the High Court hearings, it was necessary to prepare and agree a record of the evidence given during those hearings for the appeal. By February 1996 the applicants had completed a note of evidence and in March 1996 they submitted it to the vendors’ solicitors for their agreement. Once it became clear that the latter would not co-operate, the applicants issued a motion dated 17 July 1996 seeking their comments on the note of evidence. The Supreme Court heard the motion on 26 July 1996 with the trial judge, then Chief Justice, presiding. That court requested the vendors’ solicitors to try to agree the note of evidence, in default of which the trial judge himself would finalise the note of evidence. A further motion of the applicants (requesting the dismissal of the vendors’ solicitors’ counter-appeal to the Supreme Court) was also heard by the Supreme Court on 26 July 1996 with the trial judge presiding. The latter motion was adjourned to 11 October 1996 and the counter-appeal and the related motion were later dropped.

On 17 September 1996 the vendors’ solicitors indicated that they disagreed with 16 items in the note of evidence. The applicants responded on 2 October 1996. On 11 October 1996 both of the applicants’ outstanding motions were adjourned to 18 October 1996. On 14 October 1996 the vendors’ solicitors confirmed that agreement would not be reached. On 18 October 1996 three judges of the Supreme Court (not including the trial judge) directed the latter to settle the note of evidence. On 24 October 1996 the applicants submitted the note of evidence together with a note of the 16 disputed points to the trial judge.

Subsequently, the applicants wrote to the trial judge and to a Registrar of the High Court on a number of occasions (14 January, 12 March and 25 June 1997) requesting the early settlement of the note of evidence. A note of the then President of the High Court published in the Bar Review of January/February 1997 noted the delays in delivering reserved judgments due to the shortage of judges and requested practitioners to formally notify him of their concerns about such delays.

Since the trial judge had not finalised the note of evidence, on 8 July 1997 the applicants wrote to the President of the High Court requesting him to intervene. In July 1997 a Registrar of the High Court indicated orally that the trial judge would deal with the matter after 20 August 1997. On 10 October 1997 the Department of Justice, Equality and Law Reform (“the Department of Justice”) requested the Chief Registrar’s comments on the alleged undue delay in the case. On 16 October 1997 a Registrar of the High Court indicated to the Department of Justice that the note of evidence matter would be resolved in one week.

In or around 22 October 1997 the trial judge finalised his report on the note of evidence and apologised to the applicants for the delay. By letter dated 24 October 1997 a Registrar of the High Court assured the Department of Justice that the note of evidence matter had been resolved and that an early date for a hearing of the appeal would be made available.

Further to the applicants’ complaints to their member of parliament and to the Tánaiste (deputy Prime Minister), the Attorney General expressed, by letter dated 30 October 1997 to the applicants, his concern at the delay in their case. While he was constitutionally obliged not to interfere in judicial matters, he had mentioned the matter informally to the trial judge and the latter assured him that all outstanding matters had been dealt with. Following an invitation, the applicants met with a member of the Attorney General’s Office on 28 November 1997, although the advice was that that office could not interfere in judicial processes.

By motion dated 9 December 1997 the applicants amended their appeal. By letter dated 21 January 1998 the Taoiseach (Prime Minister) responded to the Minister for Justice’s letter on the applicants’ case. While underlining the independence of the Courts, the Taoiseach had made enquiries and noted that the factors which had led to the delay had, by then, been resolved.

The Supreme Court delivered its reserved judgment on the applicants’ appeal on 9 March 1998 and found in the applicants’ favour, considering that the vendors’ solicitors were also liable in negligence to them.

The case was remitted to the High Court for the assessment of damages. On 7 May 1998 the Attorney General responded to the applicants’ member of parliament referring to the applicants case as “concerning”: he hoped that the recently established system for monitoring judicial delays would ensure that the applicants’ experience was not repeated.

The vendor’s solicitors filed an amended defence in May 1998 and the applicants filed further particulars of damage in June 1998. On 26 June 1998 the vendors’ solicitors were allowed to make a late lodgement into court in the sum of 85,000 Irish pounds (IR£). A letter dated 13 July 1998 from the Attorney General’s office to the applicants explained that his previous intervention related to an administrative act by the trial judge (the note of evidence) but that the outstanding matters were judicial in which he could not interfere. On 21 July 1998 the Attorney General’s office confirmed that it had been informed that a hearing date for the damages assessment had been fixed by the High Court for 13 October 1998. A letter dated 6 August 1998 from the Taoiseach’s office to the applicants confirmed that increased resources to the courts meant that it was hoped that their experiences would not be repeated. On 9 October 1998 the applicants also met with the Tánaiste to discuss the length of their ongoing proceedings.

Further to a hearing on 13-16 October 1998, on 25 November 1998 the High Court awarded the applicants approximately IR£200,000 in respect of pecuniary loss and IR£10,000 in respect of non-pecuniary damage. The applicants were also awarded their costs when taxed and ascertained. On 11 December 1998 the High Court dealt with matters concerning the attribution of liability between the defendants. The applicants did not appeal the damages or costs order to the Supreme Court.

The Taxing Master of the High Court fixed a hearing on the applicants’ costs for 29 July 1999, using an abridged procedure. This was adjourned on the application of the vendors’ solicitors until 20 October 1999. The hearing took place on that date and continued on 20 November 1999 and concluded on 22 November 1999, when the Taxing Master delivered judgment. The final certificate on taxed costs (approximately IR£300,000) was signed on 15 December 1999.

The applicants have submitted a number of medical reports. The second applicant’s doctor completed a medical certificate in May 1993 attesting to her severe symptoms of anxiety since the legal problems had arisen. She had required repeated courses of medication and she was, at that stage, depressed and on medication. Her anxiety symptoms were likely to continue until the legal situation was resolved. The same doctor confirmed, in a report from March 1994, a deterioration of the second applicant’s condition into “frank depression”. Medication had initially helped but the delay in the proceedings was worsening her condition. A psychiatric report on the second applicant dated July 1998 recorded her significant clinical depression since the start of the proceedings which warranted anti-depressants and tranquillisers on many occasions. It was considered that the proceedings continually threatened to bring about a relapse, in spite of certain periods of recovery following appropriate treatment. It was considered that a full recovery was foreseeable only after the proceedings terminated. A psychiatric report on the first applicant dated August 1998 attested to the great strain the proceedings had caused him.

COMPLAINTS

The applicants submit that the Court should reconsider its partial decision in this case dated 30 March 2000 as they argue that they had made procedural complaints not considered by the Court.

They also complain, invoking Article 6 of the Convention alone and in conjunction with Article 13, about the length of the proceedings and about a lack of a remedy in that respect.

THE LAW

A. The partial decision of the Court of 30 March 2000

The applicants maintain that they had made certain procedural submissions which had not been fully examined by the Court so that its partial decision should be re-opened. The Court does not find it necessary to decide whether these submissions were made prior to its partial decision or whether they constitute “new” or “relevant” information within the meaning of Article 35 § 2(b), because it considers that such submissions do not, in any event, gives rise to any issue under the Convention.

In particular, the applicants submit that the hearing on 5 October 1994 was not in public because legal submissions were requested in writing, that the assessment by the courts of the evidence on liability was wrong, that the defendants were allowed to make a late lodgement into court and that the trial judge also sat on the Supreme Court for the applicants’ motion concerning the vendors’ solicitors’ counter-appeal. However, and as stated in the partial decision in this case, given the final liability decision in their favour (on 9 March 1998) and since the lodgement did not have any costs impact on the applicants, they cannot claim to be victims within the meaning of Article 35 § 1 of a violation of the Convention as regards the fairness of the liability proceedings. Such complaints would be therefore incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention.

As to the assessment of damages proceedings, the applicants suggest that the High Court assessing judge should not have sat on a motion of the applicants concerning pleadings and procedures and later in the assessment proceedings, that various elements of the High Court’s assessment of damages were wrong and that the overall assessment was so wrong that it was unfair. The Court notes that its role is limited, as outlined in its partial decision of 30 March 1998, to the determination of whether the proceedings as a whole, including the manner in which the evidence was taken, were fair as required by Article 6 § 1. In that partial decision, it found no evidence of any unfairness in the assessment proceedings. Having reviewed the applicants’ submissions, it remains of the view that the application does not provide any evidence of any procedural unfairness in the assessment proceedings. In particular, it does not find that the assessing judge’s hearing of the earlier motion in any way prejudiced the fairness of the subsequent assessment hearing.

Finally, the matters raised by the applicants which the Court considers as relating to the length of the proceedings will be considered by it in that context. It is noted, in this respect, that the applicants argue that the assessment of damages was too long and that the trial judge should not have sat in the Supreme Court in July 1996 on one of the applicants’ motions which related to delay in the proceedings.

Accordingly, and whether or not these submissions of the applicants were made before the Court’s partial decision or constitute “new” and “relevant” information submitted thereafter, the Court finds that these submissions do not demonstrate any issue under Articles 6 or, consequently, under Article 13 of the Convention. Any such complaints are, therefore, inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.

B. Articles 6 and 13 of the Convention: length of proceedings

The applicants mainly complain under Articles 6 and 13 of the Convention about the length of the proceedings and about the lack of any effective domestic remedy in that respect. Article 6, in so far as relevant, reads as follows:

“In the determination of his civil rights ..., everyone is entitled to a ... hearing within a reasonable time ... .”

Article 13 reads as follows:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

1. Article 35 § 1: exhaustion of domestic remedies

The Government submit that the applicants have failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. Citing a number of cases, they argue that the applicants could have, at any stage of the proceedings, commenced an action in pursuit of their right to a decision within a reasonable time based on two unenumerated constitutional rights: the principle of constitutional justice and the right to litigate. While the appropriate remedy would depend on the facts of the case, it might include damages against the State.

The applicants submit that various branches of the State recognised the delays in their case and maintain that they could not be expected to pursue further substantial proceedings before the High and Supreme Courts in order to speed up the proceedings. They had repeatedly attempted to speed up the proceedings by way of motions to the courts. However, the response of the judiciary was inadequate and it would have been the same judges who would have had to consider any such constitutional proceedings issued by them. As to the case-law to which the Government refer, the applicants note that not one case related to delay attributable to a judge.

The Court notes the parties’ submissions in the context of Article 13 of the Convention which are summarised below and it would join the issue under Article 35 § 1 to the merits of the applicants’ Article 13 complaint.

2. Article 35 § 3: compatibility ratione personae

The Government contend that the applicants are responsible for the delay in the proceedings, inter alia , because they agreed to the trial judge hearing their case despite his expressed time constraints, they appealed the findings on liability (vis-à-vis the vendors’ solicitors) pending which the assessment of damages was postponed and because they failed to ensure a stenographer for the High Court hearing. Accordingly, they argue that the applicants and not the State are responsible for any delay in which case that complaint is incompatible ratione personae with the provisions of the Convention. The applicants strongly dispute that they are responsible for any delay and point to the delaying tactics of the defendants to which they consider the Courts inadequately responded.

The Court recalls that the applicants complain that the courts did not ensure the conclusion of the relevant proceedings within a reasonable period of time within the meaning of Article 6 of the Convention. The reasonableness of the length of proceedings is assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the conduct of the applicants and of the relevant authorities and what is at stake for the applicants (see, for example, the Philis v. Greece (no. 2) judgment of 27 June 1997, Reports of Judgments and Decisions 1997-IV, § 35, the Portington v. Greece judgment of 23 September 1998, Reports 1998-VI, § 21, and Kudła v. Poland [GC], no. 30210/96, § 124, ECHR 2000-XI).

The Court considers that the applicants can claim to be victims of a violation of Article 6 of the Convention by the State and that the Government’s submissions about the applicants’ conduct concerning the length of the proceedings falls to be considered on the merits of the Article 6 complaint. Their complaints concerning the length of the proceedings are not therefore incompatible ratione personae with the provisions of the Convention.

3. Article 6 alone and in conjunction with Article 13: merits

The applicants’ complaint under Article 6 relates to the length of the proceedings issued by them, which began on 17 July 1991 and ended on 15 December 1999 with the signature of the taxation certificate by the Taxing Master of the High Court (Robins v. the United Kingdom judgment of 23 September 1997, Reports 1997-V, §§ 28-29). They therefore lasted 8 years, 4 months and 30 days. According to the applicants, the length of the proceedings is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. The Government reject the allegation.

The applicants also dispute, invoking Article 13 of the Convention, that they had any effective remedy as regards the length of their proceedings and they refer to their submissions made in the context of Article 35 § 1. The Government also repeat their submissions made and summarised above in the context of Article 35 § 1 in support of their contention that the applicants had effective remedies within the meaning of Article 13 in relation to the length of their proceedings.

The Court notes its reference above to the circumstances and criteria by which the reasonableness of the length of the proceedings is assessed for the purposes of Article 6 § 1. It also recalls that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (the above-cited Kudła judgment, at § 156).

Accordingly, and having examined the complaints under Article 6 § 1 alone and in conjunction with Article 13 and the parties’ submissions, the Court finds that serious questions of fact and law arise in this regard, which are of such complexity that their determination should depend on an examination of the merits. This part of the application cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicants’ complaints under Articles 6 and 13 of the Convention concerning the length of the proceedings and availability of effective remedies in that respect; and

Declares inadmissible the remainder of the application.

Vincent Berger Georg ress Registrar President