Delay & Fair Procedures

Human Rights Issues

In recent times, the courts have become stricter in measuring the balance of justice. Delay that might formerly have been tolerated may now be regarded as inordinate. Excuses that were formerly accepted might no longer be accepted.

The European Convention on Human Rights is part of Irish domestic law under the European Convention on Human Rights Act 2003. The Convention guarantees the right to a hearing within a reasonable time. What is reasonable depends on the circumstances and the complexity of the case.

With the incorporation of the European Convention on Human Rights into Irish law, the case law under the Convention in relation to the right to a trial within a reasonable time, is relevant in this context.  The Convention provides that in the determination of civil rights and obligations, everyone is entitled to a fair and public trial within a reasonable time by an independent and impartial tribunal established by law.

Courts are not directly bound by the provision, as they are not an organ of the state.  Nonetheless, the courts have regard to the principle of the basic right to a trial within a reasonable time, under the Convention.

A party is obliged to show due diligence in carrying out procedural steps to refrain from using delaying tactics and to avail himself of affordable means afforded by domestic law to shorten proceedings.

Unfair Trial

The Constitutional imperative to end stale claims to ensure the overall effective administration of justice and basic fairness of procedures has been emphasised in cases dealing with delay. The Constitution requires the court to administer justice and guarantees citizens the right to protect their good name. These Constitutional guarantees presuppose that litigation will be conducted in a timely fashion.

The  State is obliged to meet the requirements that justice be rendered within a reasonable time under Article 6 of the ECHR. The obligation applies to all organs of the State including the judiciary. It appears that while the fundamental principles relating to the dismissal of claims based on delay remain, the weight to be attached to various factors relevant to the balance of justice has been recalibrated to take into account the court’s obligation to ensure litigation progresses to a conclusion with reasonable expedition.

In theory, an appeal court may dismiss proceedings where the High Court has failed to do so. However, the Court of Appeal will generally afford the High Court significant discretion. The court would be slow to second-guess the High Court judge’s management of the list. However, where there are Article 6 issues at stake, the appeal court might consider whether, in the interests of justice, it should exercise the discretion differently.

Approach

European Court on Human Rights in its case law, has reviewed the reasonableness of the lengths of proceedings in the context of the circumstances. The complexity of the case is relevant. A more complicated case may justify a longer period of preparation.

The conduct of the applicant is a consideration. If he has contributed substantially to the delay, he cannot complain on the basis of the Convention. States must organise their legal system so as to ensure that proceedings are determined within a reasonable time.  States themselves may be responsible if they allow proceedings to continue beyond a reasonable time.

This approach follows  cases in particular the jurisprudence of the European Court of Human Rights including particularly cases relating to Ireland and delays in litigation. Following the enactment of the European Convention on  Human Rights Act 2003 the principles are part of domestic Irish law.

Factors

Even where there is no blame on the part of the plaintiff, the court may sometimes, in some circumstances, strike out proceedings on the grounds of delay in the interests of justice. It may do so

• if there is a real and serious risk of an unfair trial and/or an unjust result,
• if there is a clear and patent injustice in asking the defendant to defend
• where it places an inexcusable and unfair burden on the defendant to defend

The power to dismiss proceedings on the basis of a risk of an unfair trial may be exercised even where proceedings have commenced within the Statute of Limitation. It may apply even where the plaintiff is entirely blameless for the delay in either a personal or vicarious sense.

The time period looked at commences on the date of the wrongful acts and continues to the anticipated date of trial. The question is whether the lapse of time means that there is a real and serious risk of an unfair trial.  Nothing short of establishing prejudice likely to lead to a real risk of an unfair trial and unjust result is likely to suffice.

Length

The European Court on Human Rights has indicated that the length of proceedings must be assessed in the light of the circumstances of the case. The threshold for proving a breach is relatively high. Where the time which has elapsed is one which, on the face of it, gives grounds for real concern, it is necessary for the court to look at the detailed facts and circumstances and for the State to explain and justify any lapse of time which appears excessive.

A case which is more complex will usually justify more time than a case which is less complex. The conduct of the applicant is relevant. The applicant is to show diligence in carrying out the procedural steps relating to him and refrain from using delaying cracked tactics. Even if the applicant is responsible for some of the delay the proceedings might nonetheless be held not to have taken place within a reasonable time. The manner in which the state provides mechanisms to comply with reasonable time requirements, rules, and automatic time limits is relevant. When proceedings continue beyond a reasonable time prescribed, it may be held responsible for the delay.

Statute of Limitations

The Statute of Limitations provides for time limits in which proceedings must be commenced.  Generally, the commencement of proceedings within this period will not constitute an unfair burden on the defendant.  However, in some exceptional cases, this may do so. In some cases, the Statute of Limitations may allow for a considerable period beyond the standard periods for the commencement of proceedings.  This may occur where, for example, a claimant is an infant or lacks mental capacity.

It may happen that a claim is taken by or on behalf of children or young adults, many years after the initial incident or accident, but within the extended Statute of Limitation period.  In some cases where there is a clear and patent unfairness in requiring the defendant to defend the claim a very long time after the events concerned, the courts may dismiss the claim on the basis of its inherent jurisdiction,  notwithstanding that it is brought within the Statute of Limitations period. A number of the cases have involved claims based on sexual abuse many years beforehand.  In many such cases, the courts have ruled the delay to be excusable.

Court Rules

There is power in the court rules to dismiss proceedings for want of prosecution. In any cause or matter in which there has been no proceeding for two years from the last preceding, the defendant may apply to the court to dismiss for want of prosecution. On the hearing of such application the court may order that the matter be dismissed accordingly or make such other order on such terms as it may be made seem just. The application is made to the master.

The court has the power to dismiss proceedings as a result of failure of procedure. Dismissing a claim or striking out a defence or otherwise taking significant action which would diminish or extinguish a claim should not be lightly taken. It should only be taken in response to a procedural failure where, in all the circumstances, the failure was sufficiently serious and persistent to justify the action.

Statutory Compensation

The State is liable for the acts of its organs and bodies including the judiciary notwithstanding that it has no control over them. The ECHR  has stated on numerous occasions that states are obliged to ensure that proceedings are heard within a reasonable time. To some extent the case management proceedings procedures  introduced in Ireland in recent decades go some way towards assisting in ensuring that this objective is met.

The Court Proceedings (Delays) Act provides persons who are party to proceedings in the Courts, where such proceedings are not concluded within a reasonable time, to seek a declaration of that fact and in certain cases compensation. The Act  provides for the appointment of a Chief Court Delays Assessor and Court Delays .

Assessors to assess such applications. It 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.