FIFTH SECTION

DECISION

Application no. 6870/18 John ROONEY against Ireland

The European Court of Human Rights (Fifth Section), sitting on 17 March 2020 as a Committee composed of:

Gabriele Kucsko-Stadlmayer, President, Síofra O ’ Leary, Mārtiņš Mits, judges, and Victor Soloveytchik, Deputy Section Registrar ,

Having regard to the above application lodged on 29 January 2018,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

1 . The case or iginated in an application (no. 6870/18) against Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 29 January 2018.

2 . The applicant, Mr John Rooney, is an Irish national, who was born in 1956 and lives in Scotstown.

3 . The Irish Government (“the Government”) were represented by their Agent, Mr P. White, of the Department of Foreign Affairs and Trade.

4 . On 28 August 2018, notice of part of the application was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

5 . The facts of the case, as submitted by the parties, may be summarised as follows.

6 . In 1983 a number of cattle (“reactor cattle”) in the applicant ’ s herd reacted to a tuberculin test indicative of the presence of bovine tuberculosis. He disputed the accuracy of the results.

7 . On 19 November 1987 the applicant issued a High Court Special Summons claiming an entitlement to compensation under a Government scheme to eradicate bovine tuberculosis and effectively challenging the constitutionality of the scheme ( Rooney v. Minister for Agriculture and Food & Ors, Record No. 1987 1120SP ). A description of those proceedings is set out in Rooney v. Ireland , no. 32614/10, § § 6-12, 31 October 2013.

8 . After that litigation was initiated it was decided to examine the questions of substance in a ‘ special case ’ procedure, which concluded in favour of the Government in 1991. However, some questions of procedure remained pending in the litigation, and the applicant sought to pursue these and add to them further issues attempting to re-litigate the case and call into question the findings of substance. This resulted in further litigation and the Supreme Court ultimately concluded in a decision in 2010 that some procedural claims outside the scope of the special case could still be pursued. Those were a motion for judgment in default of defence, and a motion to amend the initial statement of claim originally delivered in 1989 (see Rooney , cited above, §§ 9- 11).

9 . In 2010 the applicant lodged an application (application no. 32614/10) with the Court complaining, inter alia , about the excessive length of the proceedings.

10 . In its judgment of 31 October 2013 in Rooney, cited above, the Court examined the proceedings that had occurred up to 18 November 2010 and held that they had been excessively lengthy and that there had, accordingly, been a violation of Article 6 of the Convention both alone and in conjunction with Article 13. A sum in the total of EUR 26,000 (twenty - six thousand euros) was awarded by the Court.

11 . On 13 June 2013, the applicant issued a further motion to set aside the Supreme Court judgment on the ‘ special case ’ . That motion was struck out on 28 June 2013. Subsequently, and further to directions of the court, the parties filed submissions in relation to the two motions which had been pending at the date of the examination in Rooney , (see paragraph 8 above). A motion was also brought by some of the defendants to strike out the parts of the claim that had been brought against the Irish Farmers Association and the Ombudsman.

12 . On 9 December 2015 the Supreme Court heard the pending appeals concerning the various motions (see paragraphs 8 and 11 above).

13 . By a judgment delivered on 28 January 2016 the Supreme Court (O ’ Donnell J.) refused the appeals. It expressed regret concerning the delay in the proceedings to date and acknowledged that the issues should have been straightforward but had taken on an unnecessary complexity ( §§ 1 - 4).

14 . Concerning the applicant ’ s motion to obtain a judgment in default of defence the Supreme Court recalled that this had not been dealt with as a matter of procedure. It went on to explain that the reason was that once it had been concluded as a matter of substance in the ‘ special case ’ proceedings that there could be no claim against the State there could be no question of requiring the State parties (or other defendants) to enter a defence ( § 37). O ’ Donnell J. in the Supreme Court decision of 28 January 2018 said:

“17. ... it seems at least to me possible that this was not an error or oversight on the part of the Court but a well-intentioned attempt, if misguided and certainly unsuccessful as matters turned out, to allow the proceedings to expire naturally, without the further aggravation that could be caused by further hearings and orders for costs. In the light of the court ’ s determination of the special issue, there was no possible answer to the application brought by the defendants to strike out the claims made against them...”

The Supreme Court found that this also meant that the motion by the Irish Farmers Association and Ombudsman to have the claim against them struck out was unnecessary in substance.

15 . However, the Supreme Court accepted that as a matter of procedure the motions had not been formally disposed of: “... The only possible issue ... was the absence of a formal order extending time for delivery of the defence and the question of costs. ...” ( § 40).

16 . It concluded that the next procedural step would be an application to the High Court to formally dismiss the claim and deal with any consequential costs orders. Given the extensive amount of time that had already passed and the applicant ’ s apparent readiness to settle the claim it decided to adjourn the case for “a period more lengthy than normal” to allow the parties to consider the entire position in light of its decision ( § 49).

17 . As to the motion to amend the statement of claim, the Supreme Court noted that it was in fact an attempt to introduce an entirely new legal claim and dismissed it ( §§ 44-47).

18 . Following the judgment of the Supreme Court of 28 January 2016, the remaining defendants sought an order from the High Court dismissing the proceedings. At the same time, the applicant sought an order terminating the proceedings “so that the plaintiff can be enabled to immediately bring an application before the European Court of Human Rights”. The applicant did not take part in the hearing of the application.

19 . By a judgment dated 5 May 2017 the High Court (Eagar J.) ( Rooney (No.1) v. The Minister for Agriculture and Food & Ors , [2017] IEHC 269) considered the Supreme Court ’ s judgment and dismissed all the pending proceedings, in light of the judgment of the Supreme Court ( § 39). It indicated it would make an order for costs.

20 . On the same date, in separate proceedings ( Rooney (no.2) v. Ireland & Anr , [2017] IEHC 270), the High Court dismissed further motions brought by the applicant on the grounds that they were an abuse of process. In that judgment, the High Court observed that all outstanding issues between the parties had been determined by the January 2016 Supreme Court judgment and there was, therefore, nothing left to decide. In addition, the High Court made an Isaac Wunder order (an order restraining the applicant from issuing proceedings in relation to the same issue without leave from the court) in respect of the applicant.

21 . The applicant appealed the High Court decisions “solely for the purpose of ensuring compliance with the provisions of Article 35 of the European Convention on Human Rights”. By consent of the parties, on 28 July 2017, the Court of Appeal (Irvine J.) ordered that the appeals be dismissed and awarded the applicant EUR 400 (four hundred euros) for his costs concerning the formal disposal of the remaining motions (see paragraph 16 above).

22 . The relevant provisions of Bunreacht na hÉireann (the Irish Constitution) concerning the constitutional right to a trial with due expedition, together with the relevant domestic case-law concerning the right to damages for breach of constitutional rights, are described in McFarlane v. Ireland [GC], no. 31333/06, § § 47-49, 10 September 2010 and O ’ Leary v. Ireland , no. 45580/16, § § 17-18, 14 February 2019.

23 . Under Article 46 of the Convention, the Committee of Ministers of the Council of Europe supervises the execution of the Court ’ s judgment in McFarlane v. Ireland , cited above, (see Allen v. Ireland , no. 37053/18, § 26, 19 November 2019, for an explanation of the Committee ’ s supervisory work). A summary of the steps taken by Ireland aimed at addressing the excessive length of judicial proceedings and introducing an effective remedy was presented to the Committee by its secretariat at its last examination of the case at its 1362 nd Ministers ’ Deputies (DH) meeting (3 ‑ 5 December 2019) (see H46-13 McFarlane group v. Ireland (Application No. 31333/06 ) . At that examination of the case the Committee adopted a decision (see CM/Del/Dec(2019)1362/H46-13 ). The deputies:

“...

3. expressed their profound concern that the authorities have not yet established an effective remedy for excessive length of proceedings in line with the Court ’ s case ‑ law, despite the fact that the oldest case in this group has been pending before the Committee for over nine years;

4. noted the general scheme of the European Convention on Human Rights (Compensation for Delays in Court Proceedings) Bill and the issues raised in by the parliamentary Joint Committee on Justice and Equality; regretted that no final consensus has been achieved among the different domestic stakeholders as to the model of the remedy to be adopted and that progress seems to have reached a standstill;

5. strongly urged the authorities to decide on next steps, speed up the legislative process and provide a revised calendar for its completion; called on them to pursue their close cooperation with the Secretariat while drafting the legislation to resolve the outstanding issues, and to ensure that the new legislation complies with the requirements of the Convention and the Court ’ s case-law;

6. decided to resume examination of the McFarlane case at their 1383 rd meeting (September 2020) (DH) and, should no tangible progress be reported by 30 June 2020, instructed the Secretariat to prepare a draft interim resolution for consideration at that meeting.”

COMPLAINTS

24 . The applicant complained, under Article 6 § 1 of the Convention, about the unreasonable length of the proceedings and, under Article 13 in conjunction with Article 6, about the lack of an effective domestic remedy in that regard.

THE LAW

25 . The Government drew attention to the number of proceedings and applications issued by the applicant since the delivery of the Supreme Court judgment in the special case proceedings in 1991 in which he essentially sought to overturn its outcome. As regards the motion for judgment in default of defence which had been pending at the date of the examination in Rooney , cited above, the Government submitted that there had been no reality to the appeal in circumstances where a defence had been delivered on 2 February 1990 and the substantive proceedings determined on the basis of that defence. It stated that, following the 1991 Supreme Court judgment, the applicant had not applied to have the motion for judgment in default of defence dealt with, but rather pursued a number of other issues. They stated that the 2016 Supreme Court judgment makes clear that the applicant had suffered no material prejudice from the delay in determining the appeal but had in fact been treated favourably as a lay litigant.

26 . As regards the motion to amend the statement of claim, the Government submitted that that motion was brought eleven years after the institution of the proceedings and some ten years after the determination of the substantive issues in the 1990 Supreme Court judgment and in circumstances where he had probably not been entitled to bring the motion in the first place. The Government submitted that the Supreme Court had held that there was no merit whatsoever in the appeals which amounted to an attempt to add an entirely new element to the applicant ’ s original 1987 statement of claim.

No significant disadvantage

27 . Article 35 § 3 (b) of the Convention reads as follows:

“3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:

...

(b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.

4. The Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings.”

(a) General principles

28 . As pointed out in previous case-law (see Mura v. Poland (dec.), no. 42442/08, § 20, 2 June 2016, and C.P. v. the United Kingdom , (dec.) no. 300/11, § 41, 6 September 2016), the purpose of the admissibility rule in Article 35 § 3 (b) is to allow the Court to concentrate on its central mission of providing legal protection of human rights at the European level.

29 . The question whether the applicant has suffered any “significant disadvantage” represents the main element of the rule (see C.P. , cited above, § 42). Inspired by the general principle de minimis non curat praetor , this first criterion of the rule rests on the premise that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court. The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case. The severity of a violation should be assessed taking into account both the applicant ’ s subjective perceptions and what is objectively at stake in a particular case (see, inter alia , C.P ., cited above, § 42).

30 . There are two further criteria. The second, contained in Article 35 § 3 (b) compels the Court to examine the case in any event if respect for human rights so requires. This would apply where a case raises questions of a general character affecting the observance of the Convention, for instance whether there is a need to clarify the States ’ obligation under the Convention or to induce the respondent State to resolve a structural deficiency (see C.P ., cited above, § 49).

31 . Finally, the third criterion under Article 35 § 3 (b) does not allow the rejection of an application if the case has not been “duly considered by a domestic tribunal” (see C.P., cited above, § 51).

(b) Application of the principles to the present case

(i) Has the applicant suffered a “significant disadvantage”

32 . The litigation complained of in the present case forms the last part of litigation in respect of which the Court has previously found a violation of Article 6 due to its excessive length (see Rooney , cited above). The litigation which is the subject of the present case lasted for over three years (from 31 October 2013 to 28 July 2017) and concerned matters which were identified by the domestic courts as lacking any significance (see paragraph 14 above); there is little question that the proceedings complained of have been excessively lengthy. As to whether the length of those proceedings was attributable to the State, the Court notes that the domestic courts identified many of the applicant ’ s complaints as vexatious and frivolous (see paragraphs 14 , 19 - 20 above) and the applicant cannot rely on the periods during which his actions caused delay (see McNamara v. the United Kingdom (Committee), no. 2250/13, 12 January 2017). Moreover, the proceedings were limited entirely to the disposal of procedural matters, the outcome of which was never in question following the decision of substance taken in the special case proceedings, and which only remained active before the courts because of the applicant ’ s persistence (see paragraph 14 above). Therefore it considers that for the most part the delays were attributable to the applicant.

33 . However, the Court agrees with the Supreme Court ’ s acknowledgment that the matters litigated were permitted to take on a scale and duration incommensurate with the simple nature of the underlying claim (see paragraph 13 above). Accordingly, the Court considers that some part of the delay may be attributed to the State (see McNamara, cited above, § 60). Nonetheless, given that the outcome of those procedural disposals was known once the special case had terminated in 1991 and their disposal was of no consequence to the questions being litigated other than to bring the proceedings formally to a close and to award the applicant costs, even though he had acted a litigant in person, the Court considers that the applicant has not suffered a significant disadvantage caused by any delays that might ultimately have been attributable to the State.

(ii) Does respect for human rights compel the Court to examine the case?

(iii) Has the case been “duly considered by a domestic tribunal”?

35 . The matter has been considered extensively by the domestic courts.

36 . It follows that the application will be declared inadmissible under Article 35 §§ 3 (b) and 4 of the Convention.

For these rea sons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 30 April 2020 .

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Victor Soloveytchik Gabriele Kucsko-Stadlmayer Deputy Registrar President