Court Delay Compensation

Purpose

The purpose of the  Court Proceedings (Delays) Act 2024 Act is to provide persons who are party to proceedings in the Irish Courts, where such proceedings are not concluded within a reasonable time, to seek a declaration of that fact and in certain cases compensation.

A person who is or was a party to proceedings, has the right to the conclusion of those proceedings within a reasonable time. This applies to proceedings that concluded within 6 months of the date of the 2024 Act provision commencing, or proceedings that were initiated and have not concluded before that date.

A person whose above right has been breached shall be entitled to a declaration that there has been a breach of that right and where the criteria in the 2024 Act apply, to the payment of compensation for that breach. The Act sets out the matters an Assessor or the Circuit Court as the case may be, must take into account, in determining for the purposes of the Act, whether  the person’s right have been breached.

Assessors

The Act provides for the appointment of a Chief Court Delays Assessor and Court Delays Assessors to assess such applications. The Act also provides in certain circumstances, for the making of an application to the Circuit Court for such a declaration and compensation, and for related matters.

The 2024 Act provides for  the Minister of the Chief Court Delays Assessor (referred to in the Act as the “Chief Assessor”) and as many Court Delays Assessors (referred to in the Act as “Assessors”) as the Minister considers appropriate.

The Chief Assessor, on the date of his or her appointment must be either a retired judge of the District Court, the Circuit Court, the High Court, the Court of Appeal or the Supreme Court, or, a practising barrister or practising solicitor of not less than 10 years standing. Each Assessor, on the date of his or her appointment must be either a retired judge of the District Court, the Circuit Court, the High Court, the Court of Appeal or the Supreme Court, or, a practising barrister or practising solicitor of not less than 5 years standing.

An Assessor appointed under this Act must be independent in the performance of his or her functions under the Act. An Assessor will hold office for a period of 5 years from the date of his or her appointment. The Act provides for the re-appointment of an Assessor whose term of office expired due to the expiration of a 5 year period in office.

The  Minister for Justice will determine the rate of remuneration, if any, of the Chief Assessor and each Assessor, with the consent of the Minister for Public Expenditure, National Development Plan Delivery and Reform. They are subject to such terms and conditions and be paid such allowances for expenses as determined by the Minister for Justice with the consent of the Minister for Public Expenditure, National Development Plan Delivery and Reform.

An Assessor has  protection from liability in damages in respect of any act or omission in the performance or purported performance of his or her functions under the Act, unless the act or omission concerned was done in bad faith.

The Minister may assign officers from his or her Department to assist Assessors in performing their functions. Any officers assigned to assist Assessors in the performance of their functions will be under the direction and control of the Chief Assessor.

Chief Assessor

The Chief Assessor will have all such powers as are necessary or expedient to enable him or her to perform his or her functions, including as an Assessor, and to enable another Assessor to perform their functions.

The report of the Chief Assessor must include information on the performance of the functions of the Chief Assessor and Assessors during the period to which it relates and can include any other information and be in such a form as the Chief Assessor considers appropriate. The Minister must publish all reports made under this section online as soon as practicable after the report is submitted.

Where at least one other Assessor is appointed, the Chief Assessor can from time to time, convene meetings with an Assessor or with Assessors, to discuss matters pertaining to the making of assessments and in particular to avoid undue divergences in the making of assessments.

Assessment

A person who considers that their right to the conclusion of proceedings within a reasonable time has been breached can make an assessment application to the Chief Assessor for an assessment of whether their right has been breached, a declaration that there has been a breach of their right and where applicable compensation.

The form, the information required on the form and the required accompanying documents for an assessment application will be determined by the Minister. The  Minister must arrange for the online publication of the assessment application form, the information required on the form and the required accompanying documents.

An assessment application or an application to court, can be made on behalf of a person who is under the age of 18 years. An   application can be made on behalf of a person who is over 18 years of age and due to illness or disability lacks capacity to make an  application

As soon as practicable after an application is received by the Chief Assessor, he or she must assign it to an Assessor to make an assessment. As soon as practicable after an application has been assigned to an Assessor, he or she must examine the application for the purpose of making an assessment and send a notice to the Minister, notifying him or her of the making of the assessment application and a copy of the application.

Assessment Procedure & Information

The procedures for the making of assessments under this Part are to be determined by the Minister in consultation with the Chief Assessor.

The Assessor may request clarification from an applicant in relation to any information or document submitted as part of the assessment application or request further documentation or information in relation to the assessment application within a specified time period. There is provision for  the extension of the notice period by the Assessor.

There are circumstances under which an Assessor can defer an application and the process to be followed. The applicant must provide within a specified period, the clarification, information or document to which the request relates.

There are  circumstances under which an Assessor must discontinue his or her examination of an assessment application and the process to be followed is set out.  Where an Assessor has discontinued his or her examination of an assessment application, the applicant will not be entitled to make a further assessment application in relation to the same alleged breach of right.

Information and documents referred can include information or documents that existed or came into the possession of the person from whom they are requested or required, before the commencement. The Assessor may make a time bound request and the content of such a request, from certain third parties for the purpose of his or her examination of an assessment application.

A person or public body to whom a notice is addressed, must comply with a requirement within the time period set out in the notice or any extension). The Act  provides for the extension of the time period specified in a notice under subsection (1) by the Assessor.

A notice must not require the provision of information by a judge, court officer or the Courts Service in relation to the performance of judicial functions. This includes the provision of information relating to the management by a judge of the relevant proceedings concerned.

Making of Assessment

There is a time period under which an Assessor must make an. There is a process to be followed by an Assessor, where he or she is of the view that it will not be possible to make an assessment within the time period set out.

The Act  sets out the considerations an Assessor must take into account for the purposes of making an assessment. It sets out that an Assessor, having considered the matters specified must take due account of the matters referred to and make a declaration as to whether or not the right under section 11(1) of the applicant had been breached.

Where an Assessor makes a declaration that there has been a breach of the applicant’s right, he or she must then determine whether compensation is payable in accordance with the Act  to the applicant and, if so, the amount of compensation payable. The Assessor must also have regard to any injury, loss or damage suffered by the applicant as a direct result of the breach of the applicant’s right  to which the declaration relates.

An Assessor when making a determination under must take due account of the matters specified in the Act and in calculating the amount of compensation payable if any, must do so by reference to and on the basis of the principles applied by the practice of, and the levels of compensation awarded by the European Court of Human Rights in decisions where the Court found that a person’s right under Article 6(1) of the Convention have been violated and in particular to any decision in which the facts and circumstances of the case to which the decision relates are, in the Assessors opinion, comparable to the proceedings to which the assessment application concerned relates.

The Assessment

An Assessor must prepare a written assessment and sets out the details to be included in such a written assessment. Once an assessment has been prepared, the Assessor must as soon as practicable, send to both the applicant and the Minister, a copy of the assessment and a notice requesting that they each confirm in writing, within 28 days, whether they accepted the assessment or not.

The notice to the applicant must include a direction to the person that they should obtain independent legal advice as to whether the assessment should be accepted or not and a further direction that they must confirm to the Assessor in writing that this legal advice was obtained.

Where an applicant does not comply with the confirmation request within 28 days, he or she will be deemed not to have accepted the assessment. Where the Minister does not comply with the confirmation request within 28 days, he or she will be deemed to have accepted the assessment.

An Assessor must, as soon as practicable after the expiry of the 28 day period set , issue an authorisation to the applicant concerned. An authorisation under this section will allow the applicant to make an application to the Circuit Court in respect of the relevant proceedings.

An assessor must, as soon as practicable after an assessment becomes binding send written confirmation to the applicant and the Minister of that fact. Where an assessment has become binding and the assessment includes a determination that compensation is payable to an applicant, the Minister must, within 2 months of the assessment becoming binding, pay compensation to the applicant, in the amount specified by the Assessor.

Payment & Costs

The Minister must, not later than 2 months after the date on which the assessment concerned becomes binding, pay to the applicant, or authorised person, the costs which have been awarded.

The 2024 Act  sets out the circumstances where an Assessor can award reasonable costs to an applicant in relation to costs incurred by him or her in the making of an assessment application. The Act sets out the circumstances where an Assessor can award reasonable costs in favour of an authorised person in relation to costs incurred by him or her in respect of legal advice obtained in accordance with section 18(2).

The Minister can prepare and issue guidelines as to the levels of costs, which an Assessor can award and, where such guidelines are issued, an Assessor must award costs in accordance with such guidelines and not award costs in excess of any maximum costs awardable as specified in the guidelines. The Minister must arrange for the online publication of guidelines prepared and issued as soon as practicable after they are issued.

Application to Circuit Court

A person to whom an authorisation has been issued, can institute  proceedings in the Circuit Court to obtain a declaration and where applicable any other relief. An  application  must be made within three months of the date of the authorisation issuing. The Circuit Court can extend the period by order if it considers it appropriate to do so in the interests of justice.

The jurisdiction conferred on the Circuit Court  can be exercised by a judge assigned to the circuit in which the applicant ordinarily resides, works or has an establishment. Any monetary limit on the jurisdiction of the Circuit Court to award compensation in tort, does not apply.

The 2024 Act sets out against whom an application must lie. No court or judge can be enjoined in an application.

Confirmation by an applicant or the Minister that he or she accepts an assessment, or the deemed acceptance by the Minister of an assessment, cannot be admitted in evidence in an application or an appeal and in the case of the Minister, cannot constitute an express of implied admission of fault or liability by him or her.

An assessment in respect of relevant proceedings cannot be admissible in evidence in an application to the Circuit Court or in an appeal to the High Court . It  cannot be referred to in any originating document, pleadings, notice or affidavit relating to such an application or appeal.

CC Decision

The Circuit Court must, on hearing an application, make a declaration that, in relation to the relevant proceedings the subject of the application, there has or has not been a breach of the applicant’s right under the Act.  Where the Circuit Court makes a declaration that there has been a breach of the applicant’s right  the Court must also determine whether compensation is payable to the applicant and if so payable, the amount of such compensation.

The Court must also make an award of costs or any other order providing for the payment of costs to the applicant or a respondent or the respondents or make no order as to the payment of costs to the applicant or a respondent to the respondents. The Circuit Court must make a declaration by reference to the criteria set out in the Act.

In calculating the amount of compensation payable, if any, do so by reference to and on the basis of the principles applied by the practice of, and the levels of compensation awarded by the European Court of Human Rights in decisions where the Court found that a person’s right under Article 6(1) of the Convention have been violated and in particular to any decision in which the facts and circumstances of the case to which the decision relates are, in the opinion of the Circuit Court, comparable to the relevant proceedings. The Court must also have regard to any injury, loss or damage suffered by the applicant as a direct result of the breach of the applicant’s right to which the Court’s declaration relates.

There is a time period in which an applicant can appeal a decision of the Circuit Court  to the High Court on a point of law. A decision of the High Court in an appeal is final. There is no appeal available from an order of the High Court made on an appeal.

Where the  Circuit Court determines an  amount of compensation  payable to the applicant but the amount so determined is not greater than the amount of compensation determined to be payable to the applicant by the Assessor in respect of the same relevant proceedings, provisions as to costs apply. Where the Circuit Court makes a declaration  and the applicant was not in relation to his or her assessment application awarded costs, the court where it makes an order,  in favour of an applicant, can include in the amount of costs awarded, such amount in respect of costs relating to the making of the assessment application, as the Court considers reasonable.

Where the Circuit Court determines that compensation is payable to the applicant, the Minister must, where no appeal has been made, pay the applicant the amount determined by the Court within three months of the date of the determination or where an appeal has been made, pay the applicant the amount specified by the High Court within three months after the date of that Court’s decision.

General and Judicial Functions

The functions conferred on an Assessor must not interfere with any judicial functions or impugn the performance of a judge in his or her judicial functions or any other person who has been conferred by law with limited functions of a judicial nature, in the performance of those functions. The  Act does not  affect the independence of a judge in the performance of his or her judicial functions or any enactment or rule of law that related to the immunity from lawsuits of judges.

There is no liability on the part of the judge or court for a breach of rights arising from delay. Neither a declaration that a person’s right has been breached will constitute a finding of liability on the part of any judge or court.

An acceptance  by an applicant that he or she accepts an assessment of an Assessor constitutes in relation to any further or other proceedings in relation to the claim. The  right a person enjoys under the Act takes the place of a person’s common law right to trial with reasonable expedition.

Only the proceedings provided for in the Act can be brought in respect of an alleged breach of the right.

An Assessor can process personal data, including special categories of personal data in accordance with the General Data Protection Regulation, the Data Protection Act 2018 and any regulations where this is necessary and proportionate for the performance of his or her functions under this Act.

Nothing in the Act will compel a person to disclose any information or document that the person would be entitled to refuse to produce on the grounds of legal professional privilege.