CASE OF DORAN v. IRELAND
Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Georg Ress
9. The applicants are Irish citizens, born in 1958 and 1957, respectively, and they both live in County Wicklow, Ireland. 10. On 12 September 1990 they agreed to buy a site with planning permission from “the vendors” on which they intended to build a house. The sale was completed in October 1990. It subsequently emerged that, because of discrepancies in the relevant site maps on which they relied during the sale, they did not have access to the site from the road. They were obliged to discontinue building and to sell the site. 11. On 31 May 1991 the Minister for Agriculture and Food established the Tribunal of Enquiry into the Beef Processing Industry (“Beef Tribunal”) and nominated the President of the High Court to be the sole member of the Tribunal. While conducting the Beef Tribunal, the President continued, when possible, to sit in cases in the High Court. 12. On 17 July 1991 the applicants instituted High Court proceedings for negligence, negligent misstatement, breach of contract, misrepresentation and breach of warranty against their own solicitors (“the applicants' solicitors”), the vendors and “the vendors' solicitors”. On 10 March 1992 the High Court ordered discovery on a consent basis. Pursuant to the applicants' motion and the defendants' consent, on 4 May 1992 the High Court ordered the defendants to file their defence within 4 weeks. Further motions of the applicants were struck out on 22 and 24 June and on 19 October 1992. On 18 May 1993 the case was certified ready for hearing by the applicants' senior counsel. 13. The case was originally listed for hearing on 8 July 1993 but it was adjourned (the applicants objected) due to the illness of one of the defendants to 15 July 1993 when another hearing date would be fixed. On 15 July 1993 a hearing date was fixed for 6 October 1993. On that date there was no judge available and the matter was heard on 7 October 1993 when the President of the High Court (“the trial judge”) made himself available. The Government maintained that the trial judge was advised by counsel present that the hearing required two days, that the judge had notified the parties that his tribunal commitments meant that he had only two days for their case so that, if the case took longer, he would be obliged to adjourn until after the Beef Tribunal, that he would only deal with issues of liability and that the applicants agreed to this. The applicants denied that their counsel so advised the trial judge, that the trial judge had informed them that the trial would be so adjourned, that their counsel would have agreed to an indefinite adjournment (given the second applicant's psychological state) or that they agreed to the separation of issues of liability and damages. 14. The applicants' case was heard on 7 and 8 October 1993 and, since it was unfinished, the trial judge adjourned it. On 2 November 1993 and 8 February 1994 the applicants wrote to the Chief Registrar of the High Court asking for enquiries to be made as to when the action would be resumed. On 16 March 1994 they wrote to the Registrar asking him to intervene with the trial judge to fix a date and enclosing a medical report of the second applicant's doctor dated 12 March 1994 (see paragraph 32 below). The Registrar was also contacted by telephone on numerous occasions by the applicants regarding a hearing date. In March 1994 the Registrar informed the applicants by telephone that the trial judge had confirmed a hearing date in July 1994. A letter to the Registrar of 9 June 1994 requested that a hearing date be fixed. 15. During this period, the applicants wrote also wrote to, inter alia, numerous members of Dáil Eireann (the House of Representatives) including to the Minister for Justice. The Deputy Chair of Dáil Eireann indicated, in a letter dated 25 March 1994, that he had contacted the Acting President of the High Court asking the latter to intercede on the applicants' behalf. On 7 April 1994 the Acting President responded that the case would be taken in July 1994. 16. On 29 July 1994 the trial judge completed his report on the Beef Tribunal. On 19 September 1994 he was appointed Chief Justice of the Supreme Court. The trial judge resumed the hearing of the applicants' case on 5 October 1994. He heard the last two witnesses and requested legal argument in writing. He reserved judgment, indicating that he would deliver it approximately one week after receipt of the written submissions. Those submissions were made by the end of October 1994 17. On 29 November 1994, 2 February, 12 April and 22 May 1995 the applicants wrote to certain Registrars of the High Court requesting information as to when the judgment would be delivered. A response, dated 26 May 1995, stated that the trial judge could not confirm when he could deliver his judgment given his heavy commitments. Further to the applicants' letter, the Minister for Justice indicated in a letter of 10 July 1995 that, while she could not intervene, she had brought the matter to the attention of a Registrar of the High Court. The applicants also wrote to a Registrar on 12 July 1995 again requesting an early delivery date. A Registrar's letter of 13 July 1995 indicated a delivery date before the end of the month. By letter dated 25 July 1995 the Minister for Justice responded to a further letter from the applicants indicating that she had forwarded a copy of the applicants' correspondence to the trial judge. Further to another letter from the applicants, a Registrar subsequently confirmed delivery of the judgment on 12 September 1995. 18. Judgment was orally delivered on that date. Both the vendors and the applicants' solicitors were found liable in damages and the claim against the vendors' solicitors was dismissed. On 21 September 1995 the Court made various orders concerning damages (adjournment of the assessment of damages) and costs to be paid by the unsuccessful parties. Pending finalisation by the trial judge of the written judgment, the form of order was not to be perfected in order to allow the applicants time to consider the text of that judgment prior to the expiration of the time-limit for appealing any orders of the High Court. The applicants wrote two letters to a Registrar of the High Court (dated 6 and 13 October 1995) and the text of the judgment became available in mid-October 1995. The order of the High Court was perfected on 17 October 1995 and on 3 November 1995 the applicants appealed the findings in favour of the vendors' solicitors to the Supreme Court. The vendors also appealed the High Court findings against them. 19. Since a stenographer had not been present during the High Court hearings, it was necessary to prepare and agree a record of the evidence given during those hearings for the purposes of the appeal. By 9 February 1996 the applicants had completed a substantial note of evidence and on 29 March 1996 they submitted it to the vendors and to the vendors' solicitors for their agreement. On 17 July 1996 the applicants issued two motions. The first sought the comments of the vendors' solicitors on the note of evidence and the second requested that the vendors' appeal be struck out for “want of prosecution” since the vendors had not filed documents in their appeal. 20. On 26 July 1996 the Supreme Court heard both motions with the trial judge (then Chief Justice) presiding. The court requested the vendors and the vendors' solicitors to submit their comments on the note of evidence within two weeks, in default of which the trial judge would finalise the note. On the second motion, the vendors were given until 7 October 1996 to file the relevant appeal documents, in default of which the Supreme Court envisaged striking out the vendors' appeal. Both motions were adjourned until 11 October 1996. The vendors' appeal and the related motion were later dropped. 21. Following further letters from the applicants in August 1996, on 17 September 1996 the vendors' solicitors indicated that they disagreed with 16 items in the note of evidence. On 11 October 1996 the applicants' motion concerning the note of evidence was adjourned to 18 October 1996. Three days later the vendors' solicitors confirmed that agreement would not be reached on the note. On 18 October 1996 three judges of the Supreme Court (not including the trial judge) directed the trial judge to settle the note of evidence. On 24 October 1996 the applicants submitted the note of evidence together with a note of the 16 disputed points to the trial judge. 22. In or around November 1996 the President of the High Court gave directions that all complaints about delays in proceedings should be forwarded to him. A memorandum of the President of the High Court published in the Bar Review of January/February 1997 noted the delays in delivering reserved judgments due to the shortage of judges and requested legal practitioners formally to notify the President of the High Court of their concerns about such delays. 23. Subsequently, the applicants wrote to a Registrar of the High Court on a number of occasions (including on 14 January, 12 March and 25 June 1997) requesting the early settlement of the note of evidence. On 8 July 1997 the applicants wrote to the President of the High Court requesting him to intervene given the delay in their proceedings. In July 1997 a Registrar of the High Court indicated orally that the trial judge would deal with the matter after 20 August 1997. The applicants sent a further reminder to that Registrar on 18 September 1997. On 10 October 1997 the Department of Justice, Equality and Law Reform (“the Department of Justice”) requested the Chief Registrar's comments on the alleged undue delay in the case. On 16 October 1997 a Registrar indicated to the Department of Justice that the note of evidence matter would be resolved in one week. 24. By letter dated 22 October 1997 the trial judge forwarded a report (six pages) he had prepared on the evidence and on the points disputed by the relevant parties and he apologised to the applicants for the delay. By letter dated 24 October 1997 a Registrar assured the Department of Justice that the note of evidence matter had been resolved and that an early date for a hearing of the appeal would be made available. 25. Further to the applicants' complaints to their member of Dáil Eireann and to the Tánaiste (the deputy Prime Minister), the Attorney General expressed, by letter dated 30 October 1997 to the applicants, his concern at the delay in their case. While he was constitutionally obliged not to interfere in judicial matters, he had mentioned the matter informally to the trial judge and the latter assured him that all outstanding matters had been dealt with. In a letter dated 4 November 1997 the Attorney General confirmed to the Tánaiste that he was concerned about the delays which the applicants had experienced in their case and that he had raised these matters in a private and informal manner with the trial judge who had assured him that all outstanding matters had been dealt with. Following an invitation, the applicants met with a member of the Attorney General's Office in late November 1997, although the advice was that that office could not interfere in judicial processes. 26. By motion dated 9 December 1997 the applicants amended their appeal. By letter dated 21 January 1998 the Minister for Justice responded to queries of the Taoiseach (Prime Minister) concerning the applicant's case pointing out that on 21 November 1997 the appeal hearing had been fixed for 2 February 1998. 27. The Supreme Court delivered its reserved judgment on the applicants' appeal on 9 March 1998 and found in the applicants' favour, considering that the vendors' solicitors were also liable in negligence to the applicants. 28. The case was remitted to the High Court for the assessment and apportionment of damages. By letter dated 7 May 1998 the Attorney General responded to queries raised by the applicants' member of Dáil Eireann: he indicated that their case was “concerning” and that it was hoped that the recently established system for monitoring judicial delays would ensure that their experience would not be repeated. 29. The vendors' solicitors filed an amended defence in May 1998 and the applicants filed further particulars of damage in June 1998. On 26 June 1998 the vendors' solicitors made a late lodgement into court in the sum of 85,000 Irish pounds (IR£). The applicants objected. A letter dated 13 July 1998 from the Attorney General's office to the applicants explained that his previous intervention related to an administrative act by the trial judge (the note of evidence) but that the outstanding matters were judicial in which he could not interfere. By letter dated 22 July 1998 the Attorney General's office confirmed that it had been informed that a hearing date had been fixed by the High Court for 13 October 1998. A letter dated 6 August 1998 from the Taoiseach's office to the applicants confirmed that increased resources to the courts meant that it was hoped that their experiences would not be repeated. On 9 October 1998 the applicants also met with the Tánaiste to discuss the length of their ongoing proceedings. 30. On 13-16 October 1998 an assessment hearing took place in the High Court. On 25 November 1998 the High Court awarded the applicants approximately IR£200,000 in respect of pecuniary loss and IR£10,000 in respect of non-pecuniary damage (the High Court finding that both applicants had been put through “a high degree of anxiety and upset” as a consequence of the defendants' negligence). The applicants were also awarded their costs when taxed and ascertained. On 11 December 1998 the High Court dealt with matters concerning the attribution of liability between the defendants. The order of the High Court was perfected in early February 1999. There was no appeal on these matters to the Supreme Court. 31. The Taxing Master abridged the time for service of the applicants' bill of costs (Order 99, Rule 28(1) of the Rules of the Superior Courts) and fixed a hearing for 29 July 1999. The bill of costs contained 519 items and comprised 172 pages. This hearing was then adjourned on the application of the vendors' solicitors until 20 October 1999. The hearing took place on that date and, since it did not finish, it was adjourned to and continued on 20 November 1999. It was again adjourned and concluded on 22 November 1999, when the Taxing Master delivered his reserved ruling. The Certificate on Taxation (approximately IR£300,000) was signed by the Taxing Master on 15 December 1999. 32. The applicants submitted a number of medical certificates to the Court. A certificate prepared by the second applicant's doctor on 26 May 1993 attested to her severe symptoms of anxiety since the legal problems had arisen. She had required repeated courses of medication and she was, at that stage, depressed and on medication. Her anxiety symptoms were likely to continue until the legal situation was resolved. The same doctor confirmed, in a certificate dated 12 March 1994, a deterioration of the second applicant's condition into “frank depression”. Medication had initially helped but the delay in the proceedings was worsening her condition. A psychiatric report on the second applicant dated July 1998 recorded her significant clinical depression since the start of the proceedings which warranted anti-depressants 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 also considered that a full recovery was foreseeable only after the proceedings terminated. A psychiatric report on the first applicant dated August 1998 attested to the great strain the proceedings had caused him. 33. Article 40(3)(1) of the Constitution provide: “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. “ Certain of the personal rights of the citizen are explicitly guaranteed by provisions of the Constitution. In addition, in interpreting and applying Article 40(3)(1) of the Constitution, the Irish courts have identified other “unenumerated” rights protected by virtue of that Article. These include the principle of “constitutional justice” (inter alia, no one should be a judge in their own cause (nemo iudex in sua causa), anyone who may be adversely affected by a decision should be afforded the opportunity to put their side of the case (audi alteram partem) and the right to fair procedures). The other relevant unenumerated right derived from Article 40(3)(1) is the right to litigate or the right of access to court. 34. Order 60 of the Rules of the Superior Courts provides as follows: “1. If any question as to the validity of any law, having regard to the provisions of the Constitution, shall arise in any action or matter the party having carriage of the proceedings shall forthwith serve notice upon the Attorney General, if he is not already a party. 2. If any question as to the interpretation of the Constitution, other than a question referred to in rule 1, shall arise in any action or matter, the party having carriage of the proceedings shall, if the Court so directs, serve notice upon the Attorney General. 3. Such notice shall state concisely the nature of the proceedings in which the question or dispute arises and the contention or respective contentions of the party or parties to the proceedings. 4. The Attorney General shall thereupon be entitled to appear in the act ion or matter and become a party thereto as regards the question which arises.” 35. Order 123 of the Rules of the Superior Courts provides, in so far as relevant, as follows: “1. At the trial or hearing of any cause or matter with oral evidence, any party may apply to the Judge for an order that the proceedings be reported by a shorthand writer and thereupon the Judge shall appoint a shorthand writer. ... 3. The party applying for an order under rule 1 ... shall pay the remuneration of the shorthand writer and said payment shall be borne by said party unless the Judge or the Master (as the case may be) shall after the trial or hearing certify that in his opinion it was expedient that the proceedings or any part thereof should have been so reported. If such certificate is given the remuneration of the shorthand writer for reporting the proceedings or part thereof to which the certificate relates shall be part of the costs in the cause. 4. The Judge shall have power, during the course or at the conclusion of the trial or hearing, to direct that copies of the shorthand writer's transcript of the evidence or any part thereof be furnished to him at the public expense or be furnished to any party applying therefor at the expense of that party.”