FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

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

The European Court of Human Rights ( Fourth Section ), sitting on 30 March 2000 as a Chamber composed of

Mr M. Pellonpää, President , Mr G. Ress, Mr I. Cabral Barreto, Mr V. Butkevych, Mrs N. Vajić, Mr J. Hedigan, Mrs S. Botoucharova, judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced on 14 January 1997 and registered on 18 August 1999,

Having deliberated, decides as follows:

THE FACTS

The applicants are Irish citizen s , born in 1958 and 1957, respectively and both live in County Wicklow, Ireland. The facts of the case, as submitted by the applicant s , 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 and 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, the applicants did not have access from the road to the site. They were obliged to discontinue building and to sell the site.

On 17 July 1991 the applicants instituted High Court proceedings for negligence, negligent misstatement, breach of contract, misrepresentation and breach of warranty against their former solicitors, the vendors and the vendors’ solicitors. The case was heard by the High Court on 7 and 8 October 1993 and the remainder of the hearing was adjourned due to the High Court judge’s commitments to an ongoing public enquiry. In March 1994 the applicants wrote to the Registrar of the High Court referring to the delays in the proceedings to date and attaching a medical report prepared by the second applicant’s doctor which referred to periods of significant depression brought on and sustained by the proceedings.

The hearing in the case resumed on 5 October 1994 when the High Court judge heard the last two witnesses and requested legal argument in writing. Judgment was reserved.

Judgment was delivered by the High Court judge on 12 September 1995. The applicants’ claim that they could not obtain a copy of this judgment for five weeks after its delivery. The judgment found both the vendors and the applicants’ former solicitors liable in damages but the claim against the vendors’ solicitors was dismissed. The applicants appealed the dismissal of the case against the vendors’ solicitors to the Supreme Court and the assessment of damages as regards the defendants already found liable was adjourned pending the outcome of that appeal.

Since there was no stenographer in the High Court, the solicitors for the applicants prepared a note of the evidence and submitted it to the defence solicitors for agreement. Since the latter’s co-operation was not forthcoming, the applicants brought a motion seeking directions in the Supreme Court on 26 July 1996. The High Court trial judge had, at that stage, become Chief Justice of Ireland and he presided over the hearing of this motion. The Supreme Court requested the defence solicitors to make an effort to agree the note of evidence, in default of which the Chief Justice 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 in July 1996, over which hearing the Chief Justice also presided. The Supreme Court refused the applicants’ motion.

On 17 September 1996 the vendors’ solicitors indicated that they disagreed with 16 items in the note of evidence and agreement on these points could not subsequently be reached. Accordingly, the applicants brought the matter by motion before the Supreme Court on 18 October 1996. The Chief Justice did not participate in the hearing of this motion and the Supreme Court directed the Chief Justice to settle the disputed points on the note of evidence. On 24 October 1996 the 16 disputed points were submitted to the Chief Justice. The applicants wrote on a number of occasions to the Chief Justice requesting that he settle the disputed points of the note of evidence as soon as possible, their last letter being on 25 June 1997. Since the Chief Justice had still not finalised these points, the applicants wrote on 8 July 1997 to the President of the High Court in relation to this delay, citing previous delays in the proceedings and requesting the President of the High Court to intervene because, pending the finalisation of the note of evidence, the appeal to the Supreme Court could not proceed. By letter dated 10 July 1997 the President of the High Court informed the applicants that the note of evidence would be finalised by the end of that legal term and that the Supreme Court appeal would be heard at the beginning of the following legal term. On 22 October 1997 the Chief Justice finalised the disputed 16 points in the note of evidence and submitted a report to the Supreme Court in this respect. In a letter to the applicants dated 22 October 1997, the Chief Justice apologised to the applicants for the delay.

The Supreme Court delivered reserved judgment on 9 March 1998 and found in the applicants’ favour, considering that the vendors’ solicitors were also liable in negligence to the applicants. The case was remitted to the High Court for the assessment of damages payable by all defendants to the applicants.

A psychiatric report on the first applicant dated August 1998 pointed out that the proceedings had caused him great strain. A psychiatric report on the second applicant dated July 1998 recorded the second applicant’s significant clinical depression since the proceedings had commenced which warranted antidepressants 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 recovery was foreseeable after the proceedings terminated.

The applicants had also written in July 1997 to a member of parliament to complain about the delay in the proceedings and that correspondence was passed on to the Attorney General in July 1998. The latter, by letter dated 21 July 1998, indicated that the applicants’ experience at the hands of the State had been such that he could not refuse a face to face meeting with an official, even though he was fully aware that he could not give any concrete assistance to them. He noted that the applicants’ case (the assessment of damages element) had been listed for hearing in the High Court on 13 October 1998.

On 25 November 1998 the High Court delivered its judgment on the assessment of damages. The plaintiffs were awarded £192,198.56 compensation in respect of pecuniary damage together with £10,000.00 in respect of non-pecuniary damage.

The applicants were awarded their costs (they estimate these at £445,000.00) and these costs were due to be taxed by the High Court Taxing Master in July 1999.

COMPLAINTS

The applicants complain about the overall length of the proceedings. They point to, inter alia , significant delays during the hearing before the High Court, the delay in the subsequent finalisation of the note of evidence, the consequent delay of their appeal to the Supreme Court and to the fact that the taxation of costs which they are to recover from the defendants has not yet been finalised.

They also complain that the trial was unfair. They submit that the trial judge requested written legal arguments at the end of the hearing on 5 October 1994 and they were accordingly denied the possibility of rebutting those arguments as they could have done if they had been submitted orally. They also argue that the trial judge treated the relevant site maps has being agreed on the first day of the trial in 1994 whereas on 5 October 1994 he expressed the view that they had not been agreed. It is also argued that the trial judge contradicted himself and the evidence in relation to the knowledge of the vendors’ solicitors of the existence of certain maps and that he therefore erred as regards their liability. They further consider that the trial judge wrongly relied on a previous case relating to the duty of care of solicitors and created a dangerous precedent. They point out that the trial judge, who had subsequently become Chief Justice, sat in the Supreme Court on two motions concerning the proceedings in which he had been the trial judge. They submit that the trial judge discriminated in favour of defendants who are solicitors. Finally, they consider that the Supreme Court contradicted findings of fact made by the trial court.

The applicants also complain about the High Court’s assessment of compensation for non-pecuniary damage. They claim, inter alia , that for eight years the vendors’ solicitors had known that they had passed on misleading information, that it was acknowledged by that judge that the second applicant’s mental health had been affected by the delay in the proceedings, that the trial judge’s finding that the applicants would have suffered anyhow if the requisitions on title had been answered truthfully was not relevant and that the trial judge found that they had acted reasonably at all times. In such circumstances, the applicants consider that they should have been awarded a greater sum in respect of non-pecuniary damage and that the award made in respect of non-pecuniary damage was clearly discriminatory.

Finally, the applicants argue that they had no domestic remedy in relation to the above complaints.

They invoke Articles 6 and 13 of the Convention.

T HE LAW [Note1]

1. In the first place, the applicants complain under Articles 6 and 13 of the Convention about the length of the proceedings instituted by them and about the lack of any domestic remedy by which they could have challenged the length of those proceedings.

Article 6, in so far as relevant, reads as follows:

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

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.”

The Court notes that the proceedings were instituted in the High Court on 17 July 1991, that the liability of all defendants had been established with the Supreme Court judgment of 9 March 1998 and that, at the time of the submission of the application, the taxation of the costs had not yet been completed. The Court also notes that the applicants submit that the trial judge, who had subsequently become Chief Justice, sat in the Supreme Court on a motion in July 1996 concerning a delay in the proceedings in which he had been the trial judge. The Court considers it appropriate to examine this submission in the context of the applicants’ complaint about the length of the proceedings.

However, the Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints under Article 6 and 13 and that it is therefore necessary, in accordance with Rule 54 § 3 (b) [Note2] of the Rules of Court, to give notice of this complaint to the respondent Government.

2. The applicants also complain under Articles 6 of the Convention that the proceedings before the High Court (which lead to the judgment of 12 September 1995) and before the Supreme Court (which lead to the judgment of 9 March 1998) were unfair. As to the High Court proceedings, they dispute the fairness of requesting written as opposed to legal argument and they allege an inconsistent approach by the trial judge to the relevant site maps. They consider that the trial judge erred as regards the vendors’ solicitors’ liability and as regards the correct criteria to be applied to determining the duty of care of solicitors. They also argue that the trial judge discriminated in favour of defendants who are solicitors, and they point to the fact that the trial judge, who had subsequently become Chief Justice, sat in the Supreme Court on a motion heard in July 1996 concerning a counter-appeal of the vendors’ solicitors in the case in which he had been the trial judge. They also submit that the Supreme Court contradicted findings of fact made by the trial court.

However, the Court can examine judicial procedures only to the extent that applicants can claim to be victims of an alleged violation of the Convention (see, for example, no. 10461/83, Dec. 14.3.85, D.R. 42, p. 137). The Court considers that all of the above submissions relate to the fairness of judicial procedures by which the liability of the defendants was examined. With the delivery of the Supreme Court judgment on 9 March 1998, the liability of all defendants was established. In such circumstances, the applicants can no longer claim to be victims of the above-described violations of the Convention (see also nos. 18926/91 and 19777/92, Dec. 30.8.1993, D.R. 75, p. 179) within the meaning of Article 35 § 1 and these complaints must be declared inadmissible as incompatible ratione personae with the provisions of the Convention pursuant to Article 35 § 3 of the Convention.

3. The applicants also complain under Article 6 of the Convention that the High Court’s assessment in 1998 of the compensation payable in respect of non-pecuniary damage was wrong. They consider that the High Court omitted relevant factors in their assessment, undervalued other matters and relied on irrelevant issues.

However, the Court recalls that, as a general rule, it is for the national courts to assess evidence before it as well as the relevance of the evidence which the accused seeks to adduce. The Court’s role is to determine whether the proceedings as a whole, including the manner in which the evidence was taken, were fair as required by Article 6 § 1 of the Convention (see, for example, Barberà , Messegué and Jabardo v. Spain judgment of 6 December 1988, Series A no. 146, p. 31, § 68). There is no evidence of any unfairness in the assessment element of the proceedings before the High Court and the Court notes that the applicant does not make any such procedural complaints in relation to those proceedings. Accordingly, and even assuming that the applicants’ failure to appeal the High Court’s assessment of damages to the Supreme Court does not constitute a failure to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention, the Court finds, in any event, the complaint inadmissible as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

4. The applicants also invoke Article 13 of the Convention arguing that they had no domestic remedy in relation to their complaints about the fairness of the proceedings or about the correctness of a decision taken during those proceedings. The Court recalls that the requirements of this Article, insofar as procedural fairness and related issues are concerned, are less strict than those of Article 6 and finds that they are in this instance absorbed by them (De Geouffre de la Pradelle v. France judgment of 16 December 1992, Series A no. 253, p. 43, § 37). It is therefore unnecessary to consider, under Article 13, the matters already examined under 2. and 3. above.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant s’ complaint about the length of the proceedings instituted by them and about the lack of a domestic remedy in that respect; and

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Matti Pellonpää Registrar President

[Note1] In your reasoning specify: Complaint / Article of the Convention [/ Succinct summary of Government’s submissions / Succinct summary of applicant’s submissions in communicated case] / Court’s [Commission’s] case-law, if any / Application of case-law to facts of particular case or considerations for specific facts of case.

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[Note2] Change as necessary.