New ECHR case on excessive length of civil proceedings in Ireland – Keaney -v- Ireland
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The excessive length of civil proceedings is not a new challenge for the Irish Courts. It has been the subject of a number of cases taken by Irish citizens to the European Court of Human Rights. The recent case of Keaney v Ireland gave the European Court of Human Rights cause to address this issue once again. The Court has also chosen this case as a lead case in relation to the issue of effective domestic remedies in Ireland for complaints about excessive length of proceedings.
The case involved an unsuccessful business venture embarked on by the applicant, Mr. Keaney. After winning the national lottery in 1996, the applicant purchased a building in Cobh, County Cork, with the intention of converting it into a Titanic theme bar. The business venture ultimately failed and the applicant issued civil proceedings against 18 different defendants, claiming deceit, misrepresentation or undue influence and fraud, among others. The claims arose from transactions that took place between the years 2000 and 2003.
Over the course of the domestic proceedings, the applicant failed on a number of occasions to adequately plead his claim. The applicant’s statement of Claim was amended eight times. The High Court subsequently determined that the applicant had failed in all of his claims and his proceedings were dismissed, with one High Court judge opining that the conduct of the applicant and his advisers bordered an abuse of process. The applicant lodged two appeals to the Supreme Court and failed to comply with procedural obligations. These appeals were eventually dismissed and the High Court judgment upheld.
Mr. Keaney made an application to the European Court of Human Rights relying on Article 6 (1), right to a fair trial within a reasonable time. Mr. Keaney complained that the 11-year time span between the instituting of his civil proceedings and delivery of the final judgment had not been reasonable. He further submitted that delays in his case had been caused by the organisation of the Irish legal system. He also alleged that there was neither an effective remedy in Irish law for excessive length of the proceedings nor a mechanism to provide compensation for such delays, under Article 13, which provides for the right to an effective remedy.
From initiation of proceedings in the High Court to the time final judgment was delivered in the Supreme Court, the proceedings spanned for 11 years and 2 months. The European Court of Human Rights found that there had been a violation of Article 6(1), right to a fair trial within a reasonable time. The Court also unanimously found that there had been a violation of Article 13, the right to an effective domestic remedy. Finally, the Court did not make any award of pecuniary damages in favour of the applicant, holding instead that because of his conduct the finding of a violation was in itself “adequate just satisfaction”.
In arriving at its decision, the court considered a number of factors. Firstly, the court considered the concept of “reasonableness” in terms of delay. Looking at the High Court proceedings, the court determined that the conduct of the applicant contributed entirely to the length of proceedings. Once the applicant amended his Statement of Claim to the required standard, the High Court proceedings concluded within five month, which the court determined to be reasonable. However, with regard to the Supreme Court proceedings, while issues persisted with the applicant lodging books of appeal and allowing the appeals to lie dormant for a length of time. The Supreme Court delivered its final judgement in April 2017, which was eight years after the last notice of appeal, was issued to that court and therefore the court found that the overall length of proceedings was “excessive and failed to meet the reasonable-time requirement.”.
With regard to backlogs in domestic courts. The ECHR acknowledged that while the main responsibility lies with the parties themselves to diligently progress proceedings and comply with procedural requirements, this does not exempt the contracting state from the requirement to deal with cases within a reasonable period. The court quoted McMullen v. Ireland, no. 42297/98 to this end. The applicant had maintained that the Irish judicial system and the fact that multiple judges played a role in this case contributed to the delays in this case. The Court held in this regard that the applicant had not made out in any substantive way in which this had contributed to further delays.
As to the question of damages as an effective remedy, the Court had difficulty in accepting that an action for damages was an effective remedy in practice. The Government relied on the recent Supreme Court decision in Nash v DPP as significant clarification of the conditions under which constitutional damages for delay in criminal procedure will be granted. However, the court expressed concerns about the lack of definition around the parameters in which these claims would be dealt with and with the speediness of this remedy.
It is noteworthy that Judge Síofra O’Leary delivered a separate concurring judgment on this case. Judge O’Leary referred to the significant body of case law involving Ireland on this particular issue of delay and the remedies available for same. Judge O’Leary outlined that this decision was a “renewed declaration of the ineffectiveness of the constitutional remedy” available and furthermore a “failure of the respondent State to put in place a mechanism…guaranteeing such an effective remedy despite a decade of discussion and attempted reform.”.
This decision can leave no doubt that the ECHR feels that Ireland needs to take decisive action here in terms of the availability of effective remedies for unreasonable delay. This may be a concern for the Irish Courts going forward particularly considering the backlog that is likely to be created by the current and ongoing Covid-19 health crisis. Judge Síofra O’Leary does acknowledge the efforts made by Ireland to date including the increased use of case management tools, the increase in the number of High Court judges and the establishment of the Court of Appeal among other things. However, this judgment can only be interpreted as the European Court of Human Rights requiring Ireland as a contracting state to take further action in terms of providing certainty to litigants and reducing the length of civil proceedings.