AS TO THE ADMISSIBILITY OF
Application No. 25353/94
by Michael C.G. McMULLEN
against Ireland
The European Commission of Human Rights (First Chamber) sitting
in private on 10 September 1997, the following members being present:
Mr. M.P. PELLONPÄÄ, Acting President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 6 April 1994 by
Michael C.G. McMULLEN against Ireland and registered on 29 September
1994 under file No. 25353/94;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on 3 May
1996 and the observations in reply submitted by the applicant on
10 June 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen living in Ireland born in
1942. The facts as submitted by the parties may be summarised as
follows.
The applicant claims that he discovered in 1983 that three Irish
firms of solicitors had been negligent in respect of advice given to
him regarding provisions in a lease. Pursuant to this lease the
applicant occupied a large castle in Ireland. Various disputes arose
between the applicant and the landlord, concerning the terms of the
lease and relating to the right of the applicant to alienate or change
the use of the castle without the landlord's consent.
By summons dated 19 March 1986 the applicant issued negligence
proceedings in the High Court against the three Irish firms of
solicitors (the first, second and third defendants), naming
14 solicitors individually (each members of one of the three firms).
On 13 August 1986 the applicant delivered his statement of claim. The
defence of the second defendant was delivered on 13 November 1986. On
28 November 1986 the applicant issued a notice of motion seeking
judgment against the first and third defendants in default of their
defences being delivered. This notice of motion was struck out by
consent on 19 January 1987. The defence of the first defendant was
delivered on 5 February 1987, the defence of the third defendant
remained outstanding. On 24 April 1989 the applicant again sought
judgment against the third defendant in default of their defence being
delivered. On 29 May 1989 the court by consent gave the third defendant
three weeks to serve a defence and the motion seeking judgment was
adjourned with liberty to re-enter. During this period discovery was
also sought by all parties. On 6 July 1989 by consent all parties were
ordered to make discovery within six weeks. On 15 September 1989 the
applicant made a notice of motion seeking to strike out the defences
of all the defendants, due to their failure to make discovery as had
been ordered by the court on 6 July 1989. This notice of motion was
struck out by the court on 5 December 1989. On 14 February 1990 the
applicant sought further and better discovery and that in the
alternative the defences of the second and third defendants be struck
out for failure to comply with the order of discovery dated 6 July
1989. This notice of motion was struck out on 29 March 1990. On
26 February 1991 the third defendants delivered their defence. On
21 March 1991 the applicant replied to the defences of each of the
defendants, thus closing the pleadings and on the same date the
applicant set down for trial. On 11 July 1991 the applicant furnished
additional particulars of negligence upon the defendants.
Between 16 July 1991 and 31 July 1991 the hearing before the
Irish High Court took place. On 18 February 1992 a written judgment of
Mr. Justice Barron was delivered. The judgment found that the second
and third defendants had been negligent. The applicant was awarded
£2,210 damages (representing certain planning fees) and costs against
the second and third defendants jointly, that being the only item of
damage claimed which the court found was attributable to the negligence
established. On 1 May 1992 the High Court refused the applicant's
application that costs against defendants 2 and 3 should be awarded on
a High Court scale, as the low level of damages did not merit such a
costs award. The applicant filed a notice of appeal on 26 May 1992
claiming that the damages awarded were inadequate. The second defendant
lodged a notice of a cross appeal on 28 May 1992 against the finding
of negligence and the third defendant contested the applicant's appeal
against the award of damages. On 6 November 1992 the transcript of the
High Court hearing was delivered to the Supreme Court Office, the
applicant's books of appeal were lodged on 22 December 1992, and on
18 January 1993 the transcript of the High Court hearing was sent to
the High Court judge for approval. The transcript was approved on
25 January 1993 and on 27 January 1993 the case was certified for
hearing in the Supreme Court and went into the list of cases awaiting
a hearing date.
On 26 January 1994 the Supreme Court Appeal was heard and on
9 February 1994 judgment was handed down. The Supreme Court confirmed
the finding of negligence against the second and third defendants, but
found that the negligence of the second defendant was not a causative
feature of any damage that the applicant had suffered. The Supreme
Court therefore dismissed the applicant's appeal and confirmed the
award of damages against the third defendant only. On 12 July 1994
there was a hearing before the Supreme Court in relation to the form
of the Order and the applicant was ordered to pay the third defendant's
costs of appeal. The applicant filed a notice of motion on 13 December
1994 seeking a stay of the costs awarded on the appeal. This issue was
heard in the Supreme Court on 16 December 1994 and no stay was made.
COMPLAINT
The applicant complains of the length of proceedings under
Article 6 para. 1 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 6 April 1994 and registered on
29 September 1994.
On 28 February 1996 the Commission decided to communicate the
applicant's complaint concerning the length of the proceedings to the
respondent Government and to declare the remainder of the application
inadmissible.
The Government's written observations were submitted on 3 May
1996. The applicant replied on 10 June 1996.
THE LAW
The applicant complains that the length of proceedings exceeded
a reasonable time, in violation of Article 6 para. 1 (Art. 6-1) of the
Convention.
Article 6 para. 1 (Art. 6-1) of the Convention provides, so far
as relevant, as follows:
"1. In the determination of his civil rights and obligations
... everyone is entitled to a fair and public hearing within a
reasonable time ..."
The Government consider that the commencement of the proceedings
for the purpose of Article 6 para. 1 (Art. 6-1) was 21 March 1991, the
date the case was set down for trial. The Government further allege
that taking into account the complexity of the case and discounting the
delays they consider were caused by the inactivity of the applicant and
the defendants, the proceedings were determined within a reasonable
time.
The applicant submits that the length of the proceedings was
unreasonable in the circumstances.
The Commission considers that, in the light of the criteria
established in the case law of the organs of the Convention concerning
"reasonable time" (complexity of the case, conduct of the parties and
the conduct of the authorities dealing with the case), the application
raises serious issues of fact and law which cannot be resolved at the
present stage of the examination of the application, but calls for an
examination of the merits.
For these reasons, the Commission, by a majority,
DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE,
without prejudging the merits of the case.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary Acting President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy