CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 septembre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                           Application No. 25353/94                       by Michael C.G. McMULLEN                       against Ireland        The European Commission of Human Rights (First Chamber) sitting in private on 10 September 1997, the following members being present:              Mr.    M.P. PELLONPÄÄ, Acting President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL            Mrs.   M. HION            Mr.    R. NICOLINI              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 6 April 1994 by Michael C.G. McMULLEN against Ireland and registered on 29 September 1994 under file No. 25353/94;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on 3 May      1996 and the observations in reply submitted by the applicant on      10 June 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a British citizen living in Ireland born in 1942. The facts as submitted by the parties may be summarised as follows.        The applicant claims that he discovered in 1983 that three Irish firms of solicitors had been negligent in respect of advice given to him regarding provisions in a lease. Pursuant to this lease the applicant occupied a large castle in Ireland. Various disputes arose between the applicant and the landlord, concerning the terms of the lease and relating to the right of the applicant to alienate or change the use of the castle without the landlord's consent.        By summons dated 19 March 1986 the applicant issued negligence proceedings in the High Court against the three Irish firms of solicitors (the first, second and third defendants), naming 14 solicitors individually (each members of one of the three firms). On 13 August 1986 the applicant delivered his statement of claim. The defence of the second defendant was delivered on 13 November 1986. On 28 November 1986 the applicant issued a notice of motion seeking judgment against the first and third defendants in default of their defences being delivered. This notice of motion was struck out by consent on 19 January 1987.   The defence of the first defendant was delivered on 5 February 1987, the defence of the third defendant remained outstanding. On 24 April 1989 the applicant again sought judgment against the third defendant in default of their defence being delivered. On 29 May 1989 the court by consent gave the third defendant three weeks to serve a defence and the motion seeking judgment was adjourned with liberty to re-enter.   During this period discovery was also sought by all parties. On 6 July 1989 by consent all parties were ordered to make discovery within six weeks. On 15 September 1989 the applicant made a notice of motion seeking to strike out the defences of all the defendants, due to their failure to make discovery as had been ordered by the court on 6 July 1989. This notice of motion was struck out by the court on 5 December 1989. On 14 February 1990 the applicant sought further and better discovery and that in the alternative the defences of the second and third defendants be struck out for failure to comply with the order of discovery dated 6 July 1989. This notice of motion was struck out on 29 March 1990. On 26 February 1991 the third defendants delivered their defence. On 21 March 1991 the applicant replied to the defences of each of the defendants, thus closing the pleadings and on the same date the applicant set down for trial. On 11 July 1991 the applicant furnished additional particulars of negligence upon the defendants.        Between 16 July 1991 and 31 July 1991 the hearing before the Irish High Court took place. On 18 February 1992 a written judgment of Mr. Justice Barron was delivered. The judgment found that the second and third defendants had been negligent. The applicant was awarded £2,210 damages (representing certain planning fees) and costs against the second and third defendants jointly, that being the only item of damage claimed which the court found was attributable to the negligence established. On 1 May 1992 the High Court refused the applicant's application that costs against defendants 2 and 3 should be awarded on a High Court scale, as the low level of damages did not merit such a costs award. The applicant filed a notice of appeal on 26 May 1992 claiming that the damages awarded were inadequate. The second defendant lodged a notice of a cross appeal on 28 May 1992 against the finding of negligence and the third defendant contested the applicant's appeal against the award of damages. On 6 November 1992 the transcript of the High Court hearing was delivered to the Supreme Court Office, the applicant's books of appeal were lodged on 22 December 1992, and on 18 January 1993 the transcript of the High Court hearing was sent to the High Court judge for approval. The transcript was approved on 25 January 1993 and on 27 January 1993 the case was certified for hearing in the Supreme Court and went into the list of cases awaiting a hearing date.        On 26 January 1994 the Supreme Court Appeal was heard and on 9 February 1994 judgment was handed down. The Supreme Court confirmed the finding of negligence against the second and third defendants, but found that the negligence of the second defendant was not a causative feature of any damage that the applicant had suffered. The Supreme Court therefore dismissed the applicant's appeal and confirmed the award of damages against the third defendant only. On 12 July 1994 there was a hearing before the Supreme Court in relation to the form of the Order and the applicant was ordered to pay the third defendant's costs of appeal. The applicant filed a notice of motion on 13 December 1994 seeking a stay of the costs awarded on the appeal. This issue was heard in the Supreme Court on 16 December 1994 and no stay was made.   COMPLAINT        The applicant complains of the length of proceedings under Article 6 para. 1 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 6 April 1994 and registered on 29 September 1994.        On 28 February 1996 the Commission decided to communicate the applicant's complaint concerning the length of the proceedings to the respondent Government and to declare the remainder of the application inadmissible.        The Government's written observations were submitted on 3 May 1996. The applicant replied on 10 June 1996.   THE LAW        The applicant complains that the length of proceedings exceeded a reasonable time, in violation of Article 6 para. 1 (Art. 6-1) of the Convention.        Article 6 para. 1 (Art. 6-1) of the Convention provides, so far as relevant, as follows:        "1.    In the determination of his civil rights and obligations      ... everyone is entitled to a fair and public hearing within a      reasonable time ..."        The Government consider that the commencement of the proceedings for the purpose of Article 6 para. 1 (Art. 6-1) was 21 March 1991, the date the case was set down for trial. The Government further allege that taking into account the complexity of the case and discounting the delays they consider were caused by the inactivity of the applicant and the defendants, the proceedings were determined within a reasonable time.        The applicant submits that the length of the proceedings was unreasonable in the circumstances.        The Commission considers that, in the light of the criteria established in the case law of the organs of the Convention concerning "reasonable time" (complexity of the case, conduct of the parties and the conduct of the authorities dealing with the case), the application raises serious issues of fact and law which cannot be resolved at the present stage of the examination of the application, but calls for an examination of the merits.        For these reasons, the Commission, by a majority,        DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE,      without prejudging the merits of the case.          M.F. BUQUICCHIO                             M.P. PELLONPÄÄ         Secretary                               Acting President    to the First Chamber                       of the First Chamber