CONCURRING OPINION OF JUDGE O ’ LEARY

1 . I fully subscribe to the unanimous judgment of the Chamber, finding violations of Articles 6 § 1 and 13 of the Convention in the present case due to the excessive length of the applicant ’ s civil proceedings and the absence of an effective domestic remedy in cases of unreasonable delay.

2 . There are several reasons for writing, exceptionally, a concurring opinion in the present case:

- Firstly, this judgment forms part of a relatively long line of cases on Article 6 § 1 and 13 of the Convention in relation to Ireland over a period of almost twenty years. Its significance resides in that fact alone.

- Secondly, the judgment in Keaney follows on from a 2010 Grand Chamber judgment, handed down in McFarlane v. Ireland , in which the Court joined to the merits the Government ’ s objection regarding a failure to exhaust the constitutional remedy in damages for delay in breach of constitutional and Convention rights. The Court then declared that remedy ineffective, inter alia , for want of concrete examples of it having been successfully tried. As the constitutional remedy had not been attempted by the applicant in that case and, at that time, in any other, it is worth reflecting on the consequences of the decision of the Grand Chamber in this regard.

- Thirdly, while the judgment in McFarlane case may have contributed to the finding of a violation of Article 13 in the instant case, so too did the failure of the respondent State to tackle definitively the question of effective remedies in unreasonable delay cases in the ten years following McFarlane .

- Finally, finding a violation of Article 6 § 1 of the Convention in a case such as this when the manner in which an applicant has conducted his or her case at domestic level has undoubtedly contributed to the excessive length of the proceedings is in need of explanation to avoid, at best, confusion and, at worst, undue criticism.

3 . As indicated in the Chamber judgment, pursuant to Article 6 § 1 of the Convention, the Court assesses whether or not there is excessive delay in a given case with reference to the complexity of the case, the conduct of the applicant and the relevant authorities and what is or was at stake for the applicant in the dispute. [1]

4 . It has found a violation of Article 6 § 1 of the Convention in a number of cases against Ireland involving both civil and criminal proceedings. In some of those cases it has found, in addition, a violation of Article 13 of the Convention due to the lack of an effective remedy to which applicants could have had recourse at domestic level. [2]

5 . No violation of Article 6 § 1 has been found in other cases as a result either of the complexity of the case, the conduct of the applicant or a combination of both. [3]

6 . Some previous cases relating to excessive length of proceedings have been concluded by means of friendly settlements [4] and a unilateral declaration in respect of Article 6 § 1 was made in one previous Irish case. [5]

7 . This relatively small but, as regards Ireland, significant body of cases are signs of a systemic problem in the respondent State, a point made by the Court in several previous judgments, not least Healy v. Ireland . [6]

8 . Over the years, the Court has recognized measures adopted by the respondent State seeking to resolve the structural problem of delay and judicial efforts to develop the remedy (damages for breach of the constitutional right to expedition) principally relied on by the respondent State when complaints have been lodged under Article 6 § 1 combined with Article 13. [7]

9 . The judgment in Keaney v. Ireland will come as no surprise, however, to those who have followed the development of Convention case-law in this field. The fact that the judgment was rendered by a Chamber of seven judges rather than, in this field, the now more usual Committee formation of three judges is further recognition of the importance of the issues raised in relation to Ireland specifically.

10 . The judgment in Keaney follows the 2018 judgment of the Supreme Court in Nash v. D.P.P. in which the latter confirmed the possibility for applicants to seek damages for breach of their constitutional right to reasonable expedition. The Nash case, the subject of a Committee inadmissibility decision (examined on the same day as the present case), which concerned alleged delay in the context of criminal proceedings and thus raised other issues not of relevance to civil proceedings, followed the first attempt by a domestic complainant to seek such damages following the McFarlane judgment.

11 . I must admit that, had I been a member of the Grand Chamber in the McFarlane case I would, like the minority at that time, have rejected the applicant ’ s complaint due to his failure to exhaust domestic remedies at that time. The reasons supporting the minority position can be found both in the Court ’ s well-established case-law, then and now, reproduced in the McFarlane judgment as follows:

“it is an established principle, that in a legal system providing 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 [...]”. [8]

12 . While several judgments finding violations of Article 6 § 1 due to undue delay had already been handed down in 2010 when the Grand Chamber delivered its judgment in McFarlane , the respondent State had repeatedly pointed to the availability of a remedy which, it said, complainants could and should have tried. It was uncontested that the applicant in McFarlane , who had sought prohibition of his criminal trial on grounds of delay, had not sought damages for breach of his right to reasonable expedition. However, the Grand Chamber in that case considered that there was “significant uncertainty as to the proposed constitutional remedy”. [9] The door was ostensibly left ajar in McFarlane on the effectiveness of the constitutional remedy for damages following alleged delay in civil proceedings. [10] That door seems in reality to have been shut both before and since that Grand Chamber judgment in a succession of cases in relation to delay in civil proceedings. [11]

13 . A number of factors worked against the effectiveness of the constitutional remedy in the Grand Chamber ’ s view – the fact that no applicant had ever requested damages for a breach of the constitutional right to reasonable expedition either in a separate action or as alternative relief ( McFarlane , cited above, § 117); the absence of clarity regarding whether the constitutional remedy would cover instances of a judge ’ s delay in delivering a judgment (ibid, § 121) and the legally and procedurally complex nature of the remedy given its novelty, which led in turn to possible delays in the remedial action requested and cost and expense when testing its existence and scope (ibid, §§ 122 - 123). It was recognized in theory, in accordance with the principles of subsidiarity and exhaustion, that in a common law constitutional system available remedies had to be tested and, in that way, developed. In practice, however, the novelty and uncertainty surrounding the proposed remedy in delay cases were relied on to defeat both principles.

14 . The McFarlane judgment was undoubtedly an important one. It confirmed the likely systemic nature of the unreasonable delay of which that applicant complained; examples of which in civil and criminal proceedings had been mounting at domestic and Strasbourg levels. However, behind the reasoning of the Grand Chamber majority lay two, if not three, fault lines. Firstly, an objection on grounds of non-exhaustion could be joined to the merits of a complaint under Article 13 of the Convention relating to the absence of an effective domestic remedy worth exhausting. However, a joinder of this nature seemed indicative of the Court ’ s direction of travel as the latter rarely backtracks once examining Article 13 of the Convention in order to conclude that the unexhausted remedy is in fact effective. Joining a question relating to exhaustion to the merits of a complaint under Article 13 is something therefore which should be done with great care. Secondly, in order to prove a domestic remedy is effective a respondent Government will need to point to cases in which domestic courts have heard applications and delivered and published a judgment, or judgments, on the merits. However, particularly in common law systems – which depend on the development of the law through litigation – this risks creating a vicious circle when or if applicants fail to rely on allegedly available but untested remedies. As indicated by the minority in McFarlane , if the relevant question was whether the applicant had done everything that could reasonably have been expected of him to exhaust domestic remedies, the answer in that case was undoubtedly no. [12]

15 . I will return below to the questions of time and cost on which the Grand Chamber conclusion as to the ineffectiveness of the constitutional remedy was also partly based in McFarlane . Suffice it, for the time being, to underline two consequences of the McFarlane judgment. On the one hand, few if any applicants were thereafter likely to seek to test the constitutional remedy for damages in cases of delay given the existence of a Strasbourg Court judgment declaring it ineffective for the purposes of Article 13 of the Convention. By declaring the untested remedy ineffective the majority of the Grand Chamber thus risked ensuring that it would remain so. On the other hand, advertently or inadvertently, the judgment in the McFarlane case appeared to point to the legislative nature of the (only) remedy which the Court appeared willing to consider as effective:

“ in the absence of a specifically introduced remedy for delay , it remains the case that the development and availability of a remedy said to exist, including its scope and application, must be clearly set out and confirmed or complemented by practice or case-law”. [13]

16 . The judgment in Keaney must be viewed against the background of McFarlane in terms of the renewed declaration of the ineffectiveness of the constitutional remedy, to which the Court, as I explained, may have contributed. However, it must also be viewed in terms of the failure of the respondent State to put in place a mechanism in one form or another guaranteeing such an effective remedy despite a decade of discussion and attempted reform.

17 . In a common law system such as Ireland ’ s, as the respondent Government has repeatedly sought to explain in Article 6 delay cases, the primary responsibility for progressing civil proceedings lies on the parties themselves. [14] However, while the Court ’ s case-law may sometimes have underestimated the importance and consequences of this basic principle of a common law adversarial system, not least when assessing the conduct of certain applicants, its case-law for over two decades has been based on the legitimate expectation, to borrow the words of the minority judges in McFarlane , that it is nevertheless up to the State to erect the appropriate “scaffolding” to support the efficient administration of justice. [15] Furthermore, even in civil law systems, where there may be a “juge de la mise en état” empowered to expedite matters, the conduct of civil proceedings is and remains largely a matter for the litigating parties.

18 . Numerous “scaffolding” measures have been adopted by and for the domestic courts in the respondent State in recent years – greater resort to case management tools, including the appointment of a case management judge; an increase in the number of High Court judges; the establishment of the Court of Appeal following a referendum and Constitutional amendment and the recent doubling of its size; the amendment of rules of court relating to judicial review; the creation of a register of reserved judgments, greater use of “call-over” lists; the adoption of new rules of court since 2016 relating to the conduct of civil cases as well as others relating to pre-trial procedures in chancery and non-jury actions and an ongoing review of the administration of civil justice chaired by the President of the High Court. The question which has been repeatedly asked at domestic level is whether the appointment of new judges and the available “scaffolding” is sufficient if the system itself remains, if not delay friendly, delay tolerant. [16]

19 . The clarification which the Supreme Court sought to provide in Nash v. D.P.P. regarding the availability of constitutional damages has to be considered in this broader context. Leaving aside the aspects of that judgment peculiar to criminal proceedings, could that clarification have remedied the supposed defects of the remedy identified in McFarlane ? Given the nature of those defects (not least the cost of litigation, the likely time it would take and uncertainty as to the outcome), the continued flow and the reasons for Article 6 delay complaints, the lapse of time since McFarlane and the parameters of the constitutional remedy which remained to be established, the likely answer to that question in 2020 was no.

20 . As stated previously, the reason for this is partly to be found in the Court ’ s rendering ineffective in McFarlane a potentially effective constitutional remedy; but it is only partly to be found there. Ten years have passed since McFarlane . The judgment on damages in Nash v. D.P.P ., like other judgments in which the Supreme Court has engaged thoughtfully and extensively with Convention case-law, was an important and welcome milestone. It is perfectly understandable, as the Chamber judgment in Keaney recognizes, that the Supreme Court reserved for future appropriate cases careful consideration of the circumstances in which it might be appropriate to award damages in the light of the material facts of those individual cases. However, it remains the case that the scope of a damages action, the circumstances in which a complainant is likely to recover damages following delay and questions of quantum all remain unclear and in need of development through practice and case-law.

21 . The Keaney judgment is not a basis for considering as ineffective remedies afforded by the Constitution in the respondent State nor does it fail to recognize the wide discretion enjoyed by the domestic courts to fashion remedies where constitutional rights are concerned. It should not either be regarded as abandonment of the crucial principles of exhaustion and subsidiarity cited in D. v. Ireland and indeed in McFarlane. [17] It reflects the following proposition which, after twenty years of repetitive cases on excessive delay, is a reasonable one: where an applicant complains of excessive delay within the general court system, sending that applicant back into the general court system the subject of the delay complaint in order to craft and/or develop his or her own remedy is unlikely for the time being to meet the requirements of Articles 35 § 1 and 13 of the Convention. [18]

22 . It should be stressed that the fact that the Nash damages claim was unsuccessful is not the relevant consideration, as the effectiveness of a remedy does not depend on the certainty of a favourable outcome for the applicant. [19] What is more telling for present purposes is the fact that those proceedings took over six years.

23 . As highlighted in the Chamber judgment, Article 13 does not require any specific form of remedy. The respondent State enjoys a margin of discretion regarding how to comply with their obligation. [20] Given the fact that the McFarlane judgment is now the subject of enhanced supervision, it is to be presumed that developments in relation to an effective remedy – whether judicial or legislative – will be speedier post- Keaney than they were post- McFarlane . One point is certainly worth clarifying since, as the Chamber judgment highlights, the respondent Government did not assist the Court in this regard. Since the remedies provided under the ECHR Act only come into play in those cases where the Constitution does not already supply litigants with a remedy, [21] what role, if any, remains for section 3(2) of that Act in cases of unreasonable judicial and not merely prosecutorial delay.

24 . The obligation which flows from Article 6 of the Convention is one to ensure that proceedings, both criminal and civil, are concluded within a reasonable time. This has long been understood by courts in the respondent State, whether they have based their reasoning on their inherent entitlement to control their own business, or on the Constitution, the Convention or the general public interest in expeditious litigation, with the possibility of dismissing a claim on grounds of inordinate and inexcusable delay [22] Whether they have been able to meet their obligations under Article 6 § 1 in individual cases is a different matter.

25 . It can be hoped that the finding of a violation of Articles 6 § 1 and 13 of the Convention in the Keaney case will constitute one of the final steps in a relatively long legal saga in the respondent State in relation to questions of unreasonable delay and, in the immediate future, the existence of an effective domestic remedy to tackle the latter at the appropriate domestic level.

26 . Given the manner and degree to which the applicant in the present case contributed to the protracted and at times dormant nature of his civil proceedings, the outcome may seem unfair. As highlighted in the Chamber judgment, there was no question of excessive delay at High Court level, the applicant having failed to properly plead his case, which in turn led to multiple interim applications and court orders. At Supreme Court level the applicant again failed to comply with his procedural obligations. Nevertheless, the system, characterized by what one Supreme Court judge had described a few years previously as permitting “comfortable assumptions on the part of a minority of litigants of almost endless indulgence” allowed the passage of six to seven years before that court acted on a motion to dismiss. Even after that time, and despite the applicant ’ s prolonged inaction, he was allowed to bring a motion to adduce additional evidence and still did not comply with the requisite practice direction. [23] The conduct of the case by the applicant, highlighted by judges at both High and Supreme Court levels, has been noted and addressed by the Chamber. The judgment is not a victory for the applicant. It is, for the reasons explained therein, accompanied by no just satisfaction award due to the manner in which his case was conducted. [24] It is instead a judgment of principle identifying a systemic problem of delay which in relation to some levels of the domestic court system may have since been remedied. It is also a judgment which requires the respondent State to act in relation to the provision of an effective domestic remedy in cases of delay. Not all sound legal principles find the appropriate champion.

27 . The Keaney case highlights a public interest which over the years several domestic judges have emphasized in delay cases before them:

“[...] there is a public interest, which is independent of the parties, in not permitting claims which have not been brought in a timely fashion, to take up the valuable and important time of the Courts, and thereby reduce the availability of that much used and needed resource to plaintiffs and defendants who have acted promptly in the conduct of their litigation, as well as increase the cost to the Courts Service, and through that body to the taxpayers, of providing a service of access to the Courts which serves best the public interest”. [25]

28 . The case also reflects the daily reality which faces courts in jurisdictions where the ratio of judges to population is low, where the volume of litigation is substantially greater than the number of judges made available to deal with it, where commensurate resources are lacking and where procedural rules may need an overhaul to protect the courts and other litigants from those who waste time. [26] The European Court of Human Rights, which is often unable to meet its own Article 6 standards on unreasonable delay, is well aware of those realities.

[1] See the authorities cited in §§ 85 - 91 of the Chamber judgment in Keaney .

[2] See variously Doran v. Ireland , no. 50389/ 99 , ECHR 2003 X (extracts) (civil; plus Article 13); McMullen v. Ireland , no. 42297/98, 29 July 2004 (civil); O’Reilly and Others v. Ireland , no. 54725/00, 29 July 2004 (civil; plus Article 13); Barry v. Ireland , no. 18273/04, 15 December 2005 (criminal; plus Article 13); McFarlane v. Ireland [GC], no. 31333/06, 10 September 2010 (criminal; plus Article 13); Superwood Holdings Plc and Others v. Ireland , no. 7812/04, 8 September 2011 (civil); T.H. v. Ireland , no. 37868/06, 8 December 2011 (criminal; plus Article 13); O. v. Ireland , no. 43838/07, 19 January 2012 (criminal); C. v. Ireland , no. 24643/08, 1 March 2012 (criminal); Rooney v. Ireland , no. 32614/10, 31 October 2013 (civil; plus Article 13); Healy v. Ireland , no. 27291/16, 18 January 2018 (civil; plus Article 13); O’Leary v. Ireland , no. 45580/16, 14 February 2019 (civil; plus Article 13).

[3] See, for example, Brennan v. Ireland , no. 44360/15, 2 November 2017 (civil); O’Sullivan McCarthy Mussel Developments Ltd. v. Ireland , no. 44460/16, 7 June 2018 (civil).

[4] See variously, for examples of the friendly settlement procedure governed by Article 39 of the Convention and Rule 62 of the Rules of Court, Flattery v. Ireland , no. 28995/95, 8 July 1998 (civil); White and Woulfe v. Ireland , no. 19595/04, 24 November 2005 (civil; plus Article 13); JB v. Ireland , no. 9519/07, 21 June 2011 (criminal; plus Article 13); Enright v. Ireland , no. 61138/08, 21 June 2011  (criminal; plus Article 13); Delaney v. Ireland , no. 23662/06, 29 November 2011 (civil; plus Article 13); O’Keeffe v. Ireland , no. 35810/09, 26 June 2012 (civil; plus Article 13); Kieran v. Ireland , no. 73886/11, 28 May 2013 (civil); M.D. v. Ireland , no. 40619/12, 11 June 2013  (civil; plus Article 13); E. v. Ireland , no. 42734/09, 1 October 2013 (civil).

[5] See Blehein v. Ireland , no 14704/16, 25 April 2017 (civil; plus Article 13) and Rule 62 A on the unilateral declaration procedure which was initially a creation of case-law.

[6] See Healy , cited above, § 60: “The appellate stage included a lengthy period of inactivity that lasted for more than four years […] due to the logjam of cases pending before the Supreme Court in those years. As the Government recognised in its submissions, during those years the domestic system lacked the capacity to deal with appeals from the High Court within a reasonable timeframe. […] the Supreme Court was effectively unable to deal with the applicant’s case for a prolonged period […]”. See also the general reflections in the Council of Europe, Guide to good practice in respect of domestic remedies , 2013, p.8, where it reiterates that “Repetitive cases generally reveal a failure to implement effective domestic remedies where judgments given by the Court […] have given indications as to the general measures needed to avoid future violations”. At present, of the 47 Council of Europe States at appears that only Ireland, Hungary and Poland remain under supervision by the Committee of Ministers in relation to the execution of judgments relating to the absence of an effective remedy in cases of unreasonable delay.

[7] Healy , cited above, §§ 60 and 69 on the creation of the Court of Appeal and the Supreme Court judgment confirming the existence of a constitutional remedy in Nash .

[8] See D. v. Ireland (dec.), no. 26499/02, § 85, 28 June 2006, cited at §§ 120 and 3 of the judgment and separate opinion in McFarlane , cited above, respectively.

[9] McFarlane , cited above, § 117 and §§ 118 – 120.

[10] Ibid, § 118, referring to the respondent Government’s response to a 2006 questionnaire by the Venice Commission on the effectiveness of national remedies in respect of excessive length of proceedings, reproduced at § 70 of McFarlane v. Ireland .

[11] See, prior to McFarlane , Doran , cited above, §§ 62 – 68 and O’Reilly , cited above, § 36 and, subsequently, Superwood Holdings , cited above, § 32 or Rooney , cited above, § 29.

[12] See § 4 of the dissenting opinion in McFarlane and, further, § 7: «The mere fact that damages for an alleged breach of one specific aspect (reasonable time) of one Constitutional right (fair trial) have not been claimed by any litigant is not sufficient to displace the fact that damages are available, domestically, for breaches of Constitutional rights, including, in circumstances where they have not previously been awarded for want of being sought ». (emphasis added) In McFarlane’s case the applicant could have included in his domestic prohibition pleadings an alternative claim in damages, although in other cases where systemic delay in the court system as distinct from prosecutorial delay was being alleged, the legal work involved given the novelty of the question could not have been denied.

The third possible fault line in McFarlane stemmed from the Court’s reliance on Barry v. Ireland . The latter was a 2005 Chamber judgment relating to criminal proceedings in which the Court had found violations of both Articles 6 and 13, rejecting the Government’s argument that damages for breach of the constitutional right to expedition might have been awarded if requested. In McFarlane the respondent Government had argued that the conclusion in Barry regarding the ineffectiveness of the remedy had been wrong (see McFarlane , cited above, § 109). While the Grand Chamber accepted that the extract of a Supreme Court judgment on which it had relied in Barry was not directly relevant to the assessment of any constitutional action for damages for delay (ibid, § 110), the majority in McFarlane nevertheless pointed to the fact that the respondent State had not sought to refer the Barry case to the Grand Chamber (ibid, § 74). Furthermore, when emphasising the uncertainty surrounding the constitutional remedy which the Government argued the applicant should have exhausted, the Court pointed to «the Government’s relatively brief submissions about this constitutional remedy for damages» in Barry (ibid, § 118). In other words, Barry was accepted as wrong at least in part but the error was of no consequence.

[13] See McFarlane , cited above, §§ 120 and 122: «the proposed constitutional remedy would form part of the High Court and Supreme Court body of civil litigation for which no specific and streamlined procedures have been developed » (emphasis added); the early preference expressed in Doran v. Ireland , cited above, §§ 62 and 66 for a «specific legal avenue conceived of as a separate remedy» or for proof of a «domestic legal provision for an award of damages following a successful constitutional action », and the apparent preference for a legislative solution to the systemic delay problem identified by the Committee of Ministers during the execution process – se e the material reproduced in §§ 64 – 69 of the Chamber judgment in Keaney . See also the Venice Commission, «Report on the effectiveness of national remedies in respect of excessive length of proceedings, Council of Europe», 2008, which indicated that in the absence of specific case-law «a remedy may be considered ‘effective’ when the wording of the legislation in question clearly indicates that it is specifically designed to address the issue of the excessive length of court proceedings» (emphasis added). This preference for a certain type of remedy may appear at odds with States’ margin of discretion regarding how to comply with their Article 13 obligations but it is perhaps explained by the repetitive nature of the cases at issue and the systemic nature of the underlying problem from which this repetition derives.

[14] See, for example, the 2005 judgment of the Court in O’Reilly v. Ireland , cited above, § 32 or the Supreme Court in Nash v. D.P.P. cited above, § 5.1: «In the party led courts system which applies in common law countries, the principal obligation for progressing proceedings lies on the parties themselves».

[15] See § 16 of the minority opinion in McFarlane , citing the High Court judgment in Kemmy v. Ireland and the Attorney General [2009] IEHC 178.

[16] See M. McDowell, «The Future of Ireland’s Legal System», Law Reform Commission Annual Conference, November 2017. Criticising a previous culture characterised by what he regarded as almost endless indulgence in terms of litigation delays see Hardiman J. in Gilroy v. Flynn [2004] IESC 98.

[17] See the key extract from McFarlane reproduced above.

[18] See also S. Wallace, «Tackling Jarndyce and Jarndyce: Delay, McFarlane v. Ireland and the European Court of Human Rights – Part II» [2011] 21 Irish Criminal Law Journal 54-58: “[…] there is something fundamentally counterintuitive about a State acknowledging it has a problem with delays in its legal system and suggesting further litigation to resolve the issue”. In the Keaney case, in response to the questions posed by the Court, the respondent State observed that it fully acknowledged the Court’s conclusions in McFarlane and noted that since then it had kept the Committee of Ministers fully informed of the steps taken to implement the judgment.

[19] See, for example, Kudła v. Poland , no. 30210/96, 26 October 2000, § 157 .

[20] Quite apart from the extensive work undertaken at domestic level by the Expert group on Article 13 of the ECHR, numerous international reports are available detailing the wide variety of remedies developed in other Council of Europe States to combat, prevent and compensate unreasonable delay. See, for example, the report for the CEPEJ, «Length of court proceedings in the member states of the Council of Europe based on the case-law of the European Court of Human Rights», CEPEJ (2018) 26.

[21] Two different scenarios present themselves – where the proposed Constitutional remedy is ineffective and where, albeit potentially effective, a complainant is unsuccessful.

[22] See, variously, K. v. Deignan [2008] IEHC 407; Donnellan v. Westport Textiles, Minister for Defence and Others [2011] IEHC 11; Gilroy v. Flynn , cited above, or Stephens v. Paul Flynn Ltd [2005] IEHC 148. A change over time in domestic judicial attitude to delay is well-documented by N. Cox, «Dismissal of Action on Grounds of Delay or Want of Prosecution: Recent Developments» [2012] Dublin University Law Journal 121-147.

[23] See Hardiman J., cited above.

[24] See §§ 95 – 97 and 132, where the Court emphasised that the applicant’s conduct had a critical impact on the progress of the case.

[25] See Peart J in Byrne v. Minister for Defence, Ireland and the Attorney General [2005] IEHC and some years later the overview by Hogan J. in Donnellan v. Westport Textiles, Minister for Defence and Others [2011] IEHC 11 , paragraph 37 .

[26] For discussion of the resources problem see the debate held by the Oireachtas (Parliamentary) Joint Commi ttee on Justice and Equality on debate on 16 January 2019 on the General Scheme of European Convention on Human Rights (compensation for delays in court proceedings) Bill 2019. According to the Chairman of the Bar Council: «the root cause of court delays is the fact that our courts are not properly resourced. There are not enough appointed judges, registrars or support for the judges».