TUOHY v. IRELAND



                      AS TO THE ADMISSIBILITY OF

                      Application No. 26270/95

                      by James TUOHY

                      against Ireland

     The European Commission of Human Rights (First Chamber) sitting

in private on 16 October 1996, the following members being present:

           Mr.   M.P. PELLONPÄÄ, Acting President

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 A. WEITZEL

                 B. MARXER

                 G.B. REFFI

                 B. CONFORTI

                 N. BRATZA

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           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 20 December 1994

by James TUOHY against Ireland and registered on 24 January 1995 under

file No. 26270/95 ;

     Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is an Irish national, was born in 1937 and is

resident in County Cork, Ireland.

A.   The particular circumstances of the case

     The facts of the case, as submitted by the applicant, may be

summarised as follows.

     In December 1978 the applicant and his wife purchased a house

(the first residence). The applicant believed, from the legal advice

he received, that he was purchasing a leasehold interest relatively

easily convertible into a freehold interest. On 1 October 1982 the

applicant's lawyer sent the title deeds of the property to the

applicant. In March 1983 (a date later accepted by the High Court) the

applicant read the title deeds. He noticed for the first time that his

title in the first residence was "a lease" and that there were some

additional obligations attaching to the property of which he had not

been made aware. While the applicant was upset, he still believed that

his title was as he had been advised by his solicitor.

     On 4 January 1985, in answer to his solicitor's demands (dated

29 May and 30 November 1994) for payment of fees as regards the

conveyance, the applicant wrote in the following terms to his

solicitor:

     "When my wife and I asked you what the £42.50 related to, you

     told us quite definitely that it was the ground rent on      property>. When we asked you if we could buy it out, you said we

     could and you mentioned a figure of £2500.00. You can imagine our

     dismay and horror when we discovered that the £42.50 was in

     respect of a lease. In view of the above I would strongly suggest

     that you revise your fees."

     When the applicant's solicitor in his response did not deal with

the matters raised by the applicant, the applicant wrote again raising

the same matters and again noted his "amazement and horror" in

discovering that the title was a leasehold. In light of the

"incompetent and negligent handling of the business entrusted" to his

solicitor the applicant again suggested a significant revision of the

fees charged.

     In the meantime, the applicant had been building a new family

home (a second residence) which would be financed in part by his equity

in the first residence. After an offer to buy the first residence had

fallen through, the applicant's new solicitor advised him in or around

July 1985 of the true nature of his title in the property. The

applicant claims (and it was accepted later by the High Court) that

this was the first time that he became aware of the true nature of the

title in the first residence and of its substantially reduced value.

     On 10 April 1987 the applicant commenced negligence proceedings

against, inter alia, his previous solicitor. The defence raised

section 11 of the Statute of Limitations 1957 ("the 1957 Act") arguing

that the proceedings were out of time. It was also argued in defence

that the delay in issuing the proceedings was, even if not statute

barred, inordinate and inexcusable. The High Court ordered that the

timeliness of the proceedings be tried as a preliminary issue. The

applicant then added a submission that if his claim was statute barred

then the relevant sections of the 1957 Act were unconstitutional.

     On 9 April 1991 the High Court held that the matter was statute

barred by section 11 of the 1957 Act. Further to a submission by the

Attorney General, it was decided by the High Court that the applicant's

locus standi to raise the constitutional issue must be established. In

order to do this, the High Court heard submissions as to the facts of

the case and as to whether, apart from the time-limit issue, the

applicant had a cause of action and as to whether the delay in issuing

the proceedings was, in any event, inordinate and inexcusable.

     The High Court gave its judgment on these issues on

3 September 1992. As to the facts, the High Court found that the

applicant had first read the title deeds in March 1993 and that despite

the terms of his letters dated 4 January and 20 May 1985, he did not

understand the significance of the difference between the title he

believed he purchased and that which he actually purchased until in or

around July 1985 when he was advised by his new solicitor. It was also

accepted that the six year time-limit ran out as and from

19 September 1984 (at the earliest) or 18 December 1984 (at the latest)

and that the applicant was accordingly aware for at least eighteen

months (if not for 21 months) that the title to the relevant property

was not what he believed he had purchased. He was, in the High Court's

view, in an analogous position to that of persons who had suffered

personal injury but who were not aware that the injury was significant,

which latter persons benefitted from a date of discoverability rule by

virtue of the Statute of Limitations (Amendment) Act 1991 ("the 1991

Act").

     The High Court accepted that the applicant had locus standi to

bring the constitutional issue since it found that, apart from the

time-limit issue, the applicant's former solicitor had been negligent

as regards the advice given in relation to the sale of the property and

that the applicant would  be entitled to damages. The High Court went

on to find that there had not been inordinate and inexcusable delay on

the part of the applicant in issuing the proceedings as alleged and

concluded that section 11 of the 1957 Act was not unconstitutional.

     The applicant appealed to the Supreme Court, which court also

accepted that the applicant, whilst aware of facts within the six year

time-limit which led him to the conclusion that the solicitor had been

negligent, was unaware until after the expiry of the time-limit that

he had suffered any significant loss which would warrant the issuance

of proceedings. It was also accepted that the applicant could not, by

steps which he might have been reasonably expected to take, have become

aware of the true position and his true loss before the summer of 1985.

     However, the Supreme Court recognised the purposes of the time-

limit as being the protection of defendants against stale claims

together with the promotion as far as possible of expeditious trials

(with evidence which has the accuracy of recent recollection) and of

a certain finality in potential claims. The necessity as far as is

practicable to ensure that such time-limits do not unreasonably or

unjustly impose hardship on potential litigants was the countervailing

interest. Having made its evaluation, the Supreme Court found that the

time-limit was objectively viewed as a substantial period, the

legislation could be seen to be supported by just and reasonable

reasons and it was not unconstitutional.

B.   Relevant domestic law and practice

     Pursuant to Article 40 (3) of the Irish Constitution, the State

guarantees in its laws to respect, and, as far as practicable, by its

laws to defend and vindicate the personal rights of the citizen. The

State shall, in particular, by its laws protect as best it may from

unjust attack and, in the case of injustice done, vindicate the life,

person, good name and property rights of every citizen.

     Pursuant to Article 43 of that Constitution, the State

acknowledges that man has the natural right, antecedent to positive

law, to the private ownership of external goods and the State,

accordingly, guarantees to pass no law attempting to abolish the right

of private ownership or the general right to transfer, bequeath and

inherit property. Pursuant to that Article the State also recognises

that the exercise of the afore-mentioned rights ought, in civil

society, to be regulated by the principles of social justice and the

State, accordingly, may as occasion requires delimit by law the

exercise of the said rights with a view to reconciling their exercise

with the exigencies of the common good.

     Section 11(1)(b) of the Statute of Limitations Act 1957 lays down

a six year time-limit, running from the date on which the cause of

action accrued, for actions in negligence. A specific fixed time-limit

of three years was also laid down for actions in, inter alia,

negligence for personal injury. Pursuant to Part III of the 1957 Act,

the time-limit applicable to a plaintiff under a disability (which

includes a minor or a person of unsound mind) begins to run from the

end of the disability. Where a cause of action is based on the fraud

of the defendant or where the right of action is concealed by the

defendant, the time-limit does not begin to run until the plaintiff has

discovered the fraud or could, with reasonable diligence, have

discovered the fraud.

     The Statute of Limitations (Amendment) Act 1991 ("the 1991 Act")

came into effect in 1991 and applied to all causes of action accruing

either before or after its passing and to proceedings pending at its

passing. Pursuant to section 3 of the 1991 Act the time-limit for

personal injuries' actions can commence from the date when the

potential plaintiff became aware of a significant injury attributable

to, inter alia, the negligence of an identifiable defendant.

COMPLAINTS

     The applicant complains under Article 6 of the Convention that,

even though the domestic courts recognised that he had a good cause of

action against his former solicitor, he is barred from pursuing this

action by a fixed time-limit. The applicant also raises Article 14 in

conjunction with Article 6 of the Convention arguing that Irish law

discriminates against him in view of the flexible time-limits

applicable to persons with personal injury actions, those under a

disability, minors and those suing for fraud. The applicant also

complains under Article 1 of Protocol 1 that his property rights were

unjustifiably interfered with by the operation of the time-limit. The

fact that a fixed time-limit applies to negligence resulting in

financial loss and an interference with property rights and that a more

flexible period applies when the negligence results in personal injury

constitutes a difference in treatment contrary to Article 14 of the

Convention taken in conjunction with Article 1 of Protocol 1.

THE LAW

1.   In the first place, the applicant complains under Article 6

para. 1 (Art. 6-1) of the Convention that he was barred from issuing

negligence proceedings when he had no conceivable way of ascertaining,

from his own limited knowledge of a technical area of the law, that his

solicitor had given negligent advice. He points out that the effect of

this was that he is excluded from having any access to court when it

has been recognised that his cause of action was good. Article 6

para. 1 (Art. 6-1) of the Convention provides in its first sentence:

     "In the determination of his civil rights and obligations ...,

     everyone is entitled to a fair and public hearing within a

     reasonable time by an independent and impartial tribunal

     established by law."

     The Commission considers that the matter at issue is one of

access to court for the determination of the applicant's civil rights

within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention

and recalls that Article 6 para. 1 (Art. 6-1) secures to everyone the

right to have any claim relating to his or her civil rights brought

before a court or tribunal (see, for example, Eur. Court HR, Golder v.

the United Kingdom judgment of 21 February 1975, Series A no. 18, p.

18, para. 36).

     However, such a right of access to court is not absolute and may

be regulated by States which have a certain margin of appreciation.

Limitations on this right must not be applied in such a way as to

impair the very essence of the right, must pursue a legitimate aim and

there must be a reasonable relationship of proportionality between the

means employed and the aim sought to be achieved (see Eur. Court HR,

Ashingdane v. the United Kingdom judgment of 28 May 1985, Series A

no. 93, pp. 24-25, paras. 55-57)

     Furthermore, the Commission has previously accepted, in the

interests of the good administration of justice, that the imposition

of time-limits (including time-limits that cannot be waived) within

which prospective proceedings must be introduced can constitute an

acceptable restriction on the right of access to court. It has been

accepted that time-limits imposed with the purpose of preventing stale

claims and the possible injustice to defendants faced with evidential

difficulties in contesting allegations relating to distant events and

of promoting legal certainty have a legitimate aim (Stubbings and

Others v. the United Kingdom, Comm. Report 22.2.95).

     In the present case, the Commission does not consider that the

very essence of the applicant's right was impaired since an action in

negligence was open to him for six years after the purchase of the

first residence. As regards the legitimacy of the aims, the applicant

submits that the question of stale claims and prejudice to the defence

as regards evidential matters were not relevant in his case since the

High Court found there would be no prejudice to the defence in

proceeding with the action and since the High Court, in establishing

the locus standi of the applicant to bring a constitutional action,

established the facts from evidence submitted, concluded that the

applicant's solicitor had been negligent and assessed damages.

     While the Commission notes the findings of the High Court reached

in order to establish locus standi, the Commission also recalls that

in fact the High Court found that there had not been inordinate and

inexcusable delay on the part of the plaintiff in issuing the

proceedings which finding does not amount to, as the applicant argues,

a finding as to a lack of prejudice to the defence. It is also noted

by the Commission that the legitimate consideration of legal certainty

remains pertinent to the present application.

     As regards the proportionality of the time-limit, the Commission

notes the applicant's submission as to his complete inability to

discern a cause of action within the time-limit because of the

technical area of the law involved, that it only became clear to him

that he had a substantive cause of action when he happened to obtain

advice from another solicitor when he was selling the property and that

he was therefore unreasonably excluded from access to court. However,

the Commission's case-law has established that the need for legal

certainty may justify the imposition of time-limits which cannot be

waived even when new facts arise after the expiry of the relevant time-

limit (No. 9707/82, Dec. 6.10.82, D.R. 31 p. 223). The Commission also

refers to the six-month time-limit set down by Article 26 (Art. 26) of

the Convention and to its own strict approach in this respect (see, for

example, No. 10416/83, K v. Ireland, Dec. 17.5.84, D.R. 38 p. 158).

     The Commission also notes that the relevant time-limit was six

years. In addition and even following the finding of the domestic

courts that the applicant did not realise until in or around July 1985

that he had a substantial action against his former solicitor, the

Commission considers the strong terms of the applicant's letters of

January and May 1985 persuasive. While written outside the relevant

time-limit, these letters demonstrate the applicant's dismay, horror

and amazement having read the title deeds which he did in March 1983.

Having so reacted and in order to assure himself of the nature of his

title, the applicant had at least eighteen months before the time-limit

ran out to obtain another opinion on the nature and value of his title

in his property. In any event, the applicant could have simply filed

a plenary summons in the High Court in order to stop the time running

if he required more than an eighteen month period to clarify his

position.

     In such circumstances, the Commission considers that this

complaint is manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

2.   The applicant also raises Article 14 in conjunction with

Article 6 (Art. 14+6) of the Convention arguing that the provisions of

section 11 of the 1957 Act discriminate against him because certain

other categories of litigant (those with personal injury actions, those

under a disability (including minors) and those suing for fraud have

the benefit of more flexibility in this respect namely, a date of

discoverablity rule. He relies on the above-cited Commission's report

in the Stubbings application. Article 14 (Art. 14) of the Convention

provides:

     "The enjoyment of the rights and freedoms set forth in this

     Convention shall be secured without discrimination on any ground

     such as sex, race, colour, language, religion, political or other

     opinion, national or social origin, association with a national

     minority, property, birth or other status."

     The Commission recalls that Article 14 (Art. 14) of the

Convention safeguards individuals placed in analogous situations from

any discrimination in the enjoyment of the rights and freedoms set out

in the Convention and Protocols. Whether a difference in treatment

constitutes such discrimination depends on whether or not that

difference pursues a legitimate aim and on whether there is a

reasonable relationship of proportionality between the means employed

and the aim sought to be realised. In making this assessment

Contracting States enjoy a margin of appreciation which will vary

according to the circumstances  of the case (see, for example, Eur.

Court HR, Lithgow and Others v. the United Kingdom judgment of

8 July 1986, Series A no. 102, pp. 66-67, para. 177).

     The Commission does not accept that the applicant is in an

analogous position to potential plaintiffs who have not issued their

proceedings due to mental incapacity, their status as minors or to

plaintiffs whose cause of action is fraud or whose cause of action has

been concealed by the defendant. Such plaintiffs are in a more

vulnerable position to that of the applicant in that such plaintiffs

are either incapable in law (minors or of unsound mind) or could not

have taken proceedings due to alleged fraudulent activity on the part

of the defendant. Accordingly, the Commission also considers that the

relative positions of the applicant and these categories of plaintiff

are not comparable to the positions of the categories of plaintiff at

issue in the above-cited Stubbings application. In the latter

application the victims of negligently and intentionally inflicted

personal injury (both of whom lacked the requisite knowledge required

to bring an action) were found to be in analogous positions.

     As to the applicant's position (as a victim of negligently

inflicted financial loss) in comparison to victims of negligently

inflicted personal injury and even assuming that the applicant finds

himself in an analogous position, the Commission notes that the Irish

State has consistently distinguished, through both the 1957 and 1991

Acts, the positions of individuals who have suffered personal and

financial injury. The former are allowed a three year time-limit and,

pursuant to the 1991 Act, a date of discoverability option whereas the

latter are allowed a fixed period of six years. Accordingly and in

light of the State's margin of appreciation in this area, the

Commission considers that this difference in treatment pursues a

legitimate aim and that the means employed are proportional.

     The Commission therefore considers that this complaint is

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

3.   The applicant also complains under Article 1 of Protocol 1

(P1-1) that his property rights were unjustifiably interfered with as

a result of the applicable fixed limitation period and under Article

14 of the Convention in conjunction with Article 1 of Protocol 1

(Art. 14+P1-1) due to the different time-limits applicable to persons

with personal injury actions, those under a disability (including

minors) and those suing for fraud or whose cause of action had been

concealed.

     The Commission recalls that, in circumstances where the matter

at issue concerns private rights, there is no interference with the

right to the peaceful enjoyment of possessions when, pursuant to pre-

existing legislation, a judge orders one party to a contract to pay

compensation to another party (No. 10000/82, Dec. 4.7.83, D.R. 33

p. 247).

     In the present case, the Commission notes that the legislative

interference alleged was with the applicant's negligence claim against

his solicitor with a view to the applicant recouping compensation as

regards the reduced value of the applicant's first residence. In view

of the High Court's acknowledgment that the applicant would have had,

but for the time bar, a cause of action against his solicitor and an

entitlement to damages, the Commission would accept that the matter

relates to the applicant's possessions. However, it is the Commission's

opinion that the application by the domestic courts of a time-limit

fixed by pre-existing legislation to proceedings concerning the private

rights of the applicant does not constitute an interference with the

his right to the peaceful enjoyment of his possessions within the

meaning of Article 1 of Protocol 1 (P1-1) (mutatis mutandis, No.

10000/82. loc. cit.). As regards his complaint under Article 14 of the

Convention in conjunction with Article 1 of Protocol 1 (Art. 14+P1-1),

the Commission does not consider, for the reasons outlined at 2. above,

that this complaint gives rise to a violation of the Convention.

     Accordingly, the Commission considers that these complaints are

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

  M.F. BUQUICCHIO                               M.P. PELLONPÄÄ

     Secretary                                Acting President

to the First Chamber                         of the First Chamber

 

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