CASE OF BRENNAN v. IRELAND
No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
Nona Tsotsoria;Síofra O’Leary
4. The applicant was born in 1947 and lives in Co. Roscommon. 5. In November 1999 the applicant purchased a newly-built house, which has been her dwelling place since then. The sale took the form of two agreements. The first was an agreement to purchase the land from the owners, Mr and Mrs F, for the sum of 5,000 Irish pounds (IEP) (approximately 6,350 euros). The second was a building agreement under which she paid IEP 80,000 (approximately 101,600 euros) to a building company called T and C Developments Ltd. The company was owned by Mr and Mrs F, who were the only shareholders. The house was covered by a guarantee provided by a company known as Homebond. 6. From the time she moved into the house in March 2000, the applicant noted major structural defects in the property. She reported this to Homebond in September 2001. The company carried out an inspection of the house and, in September 2002, offered to make certain repairs to it in accordance with the terms of the guarantee. According to the applicant, Homebond refused to issue an Engineer’s certificate/guarantee upon the completion of the works, which would have been required if the applicant were to sell the house afterwards. 7. In February 2003 the applicant instituted proceedings in the High Court against the parties mentioned above, i.e. Mr and Mrs F (first and second defendants), T and C Developments (third defendant), and Homebond (fourth defendant). A fifth defendant was included in the action, a Mr Q, who, as an engineer, had certified that the house was in compliance with the relevant building regulations. In March 2003, Mr Q’s company was named as the sixth defendant. The applicant filed her statement of claim in May 2003. 8. Over the following months, she wrote several times to the solicitors for the first three defendants requesting that they deliver their defence, on each occasion offering some additional time for this purpose. By December 2003 these defendants had not yet delivered their defence, at which point the applicant applied to the High Court for a judgment in default of defence against them. 9. The statement of claim was not served on the fourth defendant until December 2003, an oversight that the applicant attributed to her solicitors. The fourth defendant entered its defence to the plaintiff’s claims in May 2004. 10. In January 2004 the High Court ordered the first three defendants to deliver their defence within three weeks. In March 2004, the applicant agreed to allow an additional 21 days for them to file their defence. 11. In July 2004 the applicant again applied to the High Court for a default judgment against the first three defendants, in light of their failure to enter their defence to the action. The defence was filed in September 2004. While it was presented as the defence of the first and second defendants, it was clarified at a later stage in the proceedings (in mid-2009), that it also concerned the third defendant. 12. On 20 December 2004, at the request of the applicant, the High Court gave a default judgment against the fifth and sixth defendants (Mr Q and his company), holding them liable to the applicant in damages and for costs. According to the judgment, these sums were to be assessed at a future date. The judgment was never enforced. The applicant explained that she received legal advice to the effect that the practice was to hold over such judgments until the case had been heard and damages assessed. She added that at a later stage in the proceedings (2009/2010) she received legal advice that the default judgment had by then expired. 13. According to the applicant, in the years 2005-2008 her solicitors considered it more effective to engage principally with the fourth defendant, Homebond, in light of the guarantee on the house. Homebond made a proposal to the applicant in June 2006 to carry out remedial work on the house. Her solicitor sought clarification of the proposal, writing several times between December 2006 and February 2008 when Homebond replied. The applicant indicated her readiness to accept the proposal. However, when subsequently requested to assign her rights to Homebond she sought clarification of the matter from the company, writing in April 2008 and again in April 2009. 14. On 20 April 2009 the High court granted a motion brought by the applicant’s solicitor to cease to represent her. From that point onwards, she acted as a lay litigant. 15. On 22 April 2009 the applicant gave notice of intention to proceed with her case to all of the defendants, a necessary step under domestic law where proceedings have been dormant for more than one year (Order 122 r. 11 of the Rules of the Superior Courts). 16. On 20 July 2009 the High Court struck out the applicant’s motion for a judgment in default of defence. The applicant sought to appeal this ruling to the Supreme Court, requesting additional time for this purpose in September 2009, which the Supreme Court refused to allow on 16 October 2009. 17. On 13 October 2010 the applicant again gave notice of her intention to proceed. The following month, she was informed by solicitors for Homebond that the offer made in 2002 was still valid. 18. On 12 September 2011 the applicant once more issued notice of her intention to proceed. In November 2011 she sought a trial date and was informed that a hearing would take place in March 2012, later moved to April 2012. At that point it was suggested by a High Court judge that the parties could attempt to resolve the dispute by mediation. The applicant explored this option but did not pursue it when it became clear, by June 2012, that some of the defendants were not interested. By this stage she had been informed that the sixth defendant had gone into voluntary liquidation. In July 2012 the applicant was informed that the case would be heard in early 2013. 19. The case was not heard as a single action. Only the fourth and fifth defendants appeared (the latter only briefly) at the hearing that commenced on 29 January 2013. The first three defendants, although given notice of the hearing, were not represented at it. The High Court’s ruling, given on 20 March 2013, therefore only considered the claims against Homebond and Mr Q. The judge ruled that Homebond was liable to the applicant under the terms of the guarantee. Although the guarantee set an upper limit of IEP 20. On 10 April 2013 the High Court issued an order against the fourth defendant for the amount awarded to the applicant. 21. On 15 May 2013 the same judge dealt with the case against the first three defendants. She held them jointly and severally liable to the applicant in damages for 94,082 euros. 22. Homebond sought to appeal the judgment and order against it. For this it was required to serve the notice of appeal personally on the applicant within twenty-one days. According to the elements in the case-file, the company’s solicitors tried unsuccessfully to arrange service on the applicant. They subsequently applied to the Supreme Court for additional time to appeal, which was granted on 14 June 2013. 23. The applicant brought a cross appeal, claiming that the High Court had wrongly failed to award her legal costs. 24. In October 2014 the applicant sought to have the appeal struck out for lack of prosecution by Homebond. This was not granted. Instead, ruling on 10 October 2014 the Supreme Court granted her two weeks to make her submissions on the question of costs. The applicant filed her submissions the following week. 25. On 28 October 2014 many pending appeals were transferred from the Supreme Court to the new Court of Appeal, including the Homebond appeal. 26. In November 2014, the Court of Appeal directed the parties to file their respective submissions within two weeks, granting a short extension of this deadline the following month. On 19 December 2014 it set a hearing date of 23 February 2015. On the latter date it allowed Homebond’s appeal and dismissed the applicant’s cross appeal. 27. On 10 June 2013 the first and second defendants filed a notice of appeal against the judgment of the High Court. 28. On 8 July 2013 the High Court made a garnishee order attaching monies owed by a commercial bank to the first and second defendants in the amount of the damages awarded to the applicant. 29. On 26 July 2013 the Supreme Court granted to the defendants a stay on the award of damages, on condition that they pay into court the sum of 45,000 euros within a period of three months, failing which the stay would lapse. The payment was not made. An application by the defendants to put forward property deeds in lieu of money was refused by the Supreme Court on 22 November 2013. 30. The applicant obtained a judgment mortgage against the defendants on 29 October 2013. 31. On 24 January 2014 the Supreme Court again refused an application from the defendants to stay the judgment of the High Court. It also refused to lift the garnishee order and to vacate the judgment mortgage obtained by the applicant. 32. On 11 July 2014 the Supreme Court refused an application from the applicant to strike the appeal out for lack of prosecution. It directed the defendants to file their books of appeal within ten weeks, failing which the appeal would be dismissed. 33. The appeal was transferred to the Court of Appeal, which indicated on 19 November 2014 that it would first consider the issue of the liability of the first and second defendants, and set a short deadline for the parties’ submissions on this. 34. The hearing took place on 9 March 2015. The Court of Appeal set aside the judgment of the High Court, holding that as a matter of law Mr and Mrs F were not liable to the applicant for the defects in the house since they had simply sold her the land and were not themselves party to the building agreement. There could only be a remedy against the third defendant, T and C Developments Ltd., with whom the applicant had concluded the agreement in 1999. 35. The applicant sought leave to appeal to the Supreme Court against this judgment. On 29 July 2015 the Supreme Court refused to grant leave.