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FIFTH
SECTION
CASE OF SUPERWOOD HOLDINGS PLC AND OTHERS
v. IRELAND
(Application
no. 7812/04)
JUDGMENT
STRASBOURG
8
September 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Superwood Holdings Plc and Others v. Ireland,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Karel Jungwiert,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Ann
Power,
Ganna Yudkivska, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 5 July 2011,
Delivers
the following judgment, which was adopted on this date:
PROCEDURE
- The
case originated in an application
(no. 7812/04) against Ireland
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Irish
national, Mr Richard Bunyan, who is the Executive
Chairman of all the applicant companies and who is the first
applicant. The second applicant, Superwood Holdings plc, is the
parent company which owns all shares in the five other applicant
companies (Superwood Ltd, Superwood Exports Ltd, Superwood
International Ltd, Superchip Ltd and Superwood (U.K.) Ltd). All the
companies are incorporated in Ireland, except Superwood (U.K.) Ltd,
which is incorporated in the United Kingdom.
- The
applicants were represented before the Court by Mr Michael Forde,
Senior Counsel, and, subsequently, by Ms Mary Bunyan, barrister at
law. The Irish Government (“the Government”)
were represented by their Agent, Ms P. O’Brien and,
subsequently, by their co-Agent Mr P. White of the Department of
Foreign Affairs.
- On
31 May 2007 the Court
decided to communicate the complaint concerning the length of the
proceedings to the Government.
THE FACTS
- The
applicant companies are collectively described as “Superwood”.
- In
October 1987 a fire occurred for which Superwood claimed 2,000,000
Irish pounds (“IR£”) from their insurers. The
latter denied liability arguing that Superwood’s claim was so
grossly exaggerated as to be fraudulent. On 28 June 1989 Superwood
took proceedings against the insurers seeking damages for wrongful
repudiation.
- On
1 July 1989 the High Court hearing began. The trial took place over
116 hearing days and was one of the longest trials in Irish civil
litigation history (the transcript exceeded 8500 pages). During the
trial (on 1 May 1990) the trial judge directed that liability
would be determined first and quantum thereafter, if relevant.
- Some
weeks after the end of the trial, on 13, 14 and 15 August 1991 the
High Court delivered its judgment finding Superwood’s claim to
be fraudulent. Any insurance benefit was therefore forfeited and an
assessment of damages was moot. On 12 November 1991 the High Court
ordered the dismissal of the action.
- On
12 December 1991 Superwood filed a notice of appeal to the Supreme
Court with 56 grounds of appeal. Superwood lodged Books of Appeal on
15 July 1992 and a certificate of readiness in October 1992. In
December 1992 Superwood applied for an early hearing date, which
application was adjourned six times. Superwood’s detailed
appeal submissions were lodged in July 1993. Following two further
adjournments, the insurer’s appeal submissions were lodged in
January 1994. In March 1994 the Supreme Court heard and allowed
Superwood’s request to amend its notice of appeal. Following
the Supreme Court’s orders to file submissions as to the
transcripts to be relied upon for the appeal, then to file abridged
written submissions and then to file skeleton submissions, on
9 December 1994 the Supreme Court set a hearing date.
- Following
a hearing of 16 days during February and March 1995, on 27 June 1995
the Supreme Court delivered its judgment unanimously upholding the
appeal and finding, inter alia, that the trial judge had erred
in holding that the evidence supported a finding that Superwood’s
claim was fraudulent. The case was remitted to the High Court to
determine the losses attributable to the fire and any other relevant
issues.
- In
March 1996 Superwood’s motion for interim payment of damages
(based on an alleged recognition by the Supreme Court of clear
minimum liability of the insurers to Superwood) and of costs was
struck out.
- On
16 July 1996 the High Court, on Superwood’s request, gave
directions for the re-trial and made a consent order that the
re-trial would first quantify the loss attributable to the fire (the
insurance money) and then any losses arising out of a failure by the
insurers to pay that money.
- On
25 July 1996 the High Court set the case down for re-trial on
19 November 1996.
- On
25 October 1996 the first three insurers applied to extend time to
make lodgements into court.
- On
11 November 1996 the re-trial judge ruled that the re-trial would not
follow the two-phased structure envisaged by the consent order of
16 July 1996 but that it would be a composite trial. On 12
November he allowed the first three insurers to make lodgements:
Superwood could accept the lodgements within 3 days. On 18 November
the Supreme Court rejected Superwood’s appeal: it could accept
the lodgements within a further 3 days. On 19 November 1996
lodgements were made by the first three insurers (IR£
3,152,761). It would appear that the fourth insurer also made a
lodgement (IR£ 1,650,000) at this point.
- In
December 1996 and March 1997 the High Court refused Superwood’s
motion to adduce further evidence and the Supreme Court rejected its
appeal on 18 March 1997.
- The
High Court re-trial began in 19 February 1997 and ended, after 281
trial days, on 3 March 2000. It generated 41,000 pages of transcript.
The
re-trial was adjourned from 31 July 1997 to 17 February 1998. The
trial judge, diagnosed with cancer, underwent surgery in November
1997, intensive treatment in December 1997 and some treatment
continued until May 1998. The re-trial judge informed the parties of
his illness and treatment on 5 March 1998 giving them an opportunity
to apply to disbar him. Superwood claimed that their Counsel
requested the re-trial judge in his chambers to disbar himself in
March 1998 but that he did not do so. They also claimed that the
re-trial judge did not sit for all potential hearing dates from March
to May 1998. In July 1998 the High Court judge submitted, at the
request of Superwood, to a medical examination which concluded as to
his fitness to preside the trial. While that report was intended to
be sent sealed via Superwood’s solicitors to Superwood’s
insurers (to assist their taking out insurance for litigation delay),
on the judge’s instructions it was sent to the Central Office
of the High Court where it remained sealed. A copy was later made
available to the Supreme Court. Superwood first had sight of this
report when the Government furnished it to this Court.
In
May 1998 (also during the re-trial) the High Court refused an
extension of time to Superwood to accept the lodgement of the fourth
insurer. On 21 June 1998 the Supreme Court allowed Superwood’s
appeal. Superwood then accepted the fourth insurer’s lodgement
and settled its case against that insurer for an added sum of
approximately IR£ 1,420,000.00.
In
January 1999 Superwood’s counsel withdrew from the case.
Superwood continued to be represented by a number of solicitors.
- On
4-6 April 2001 the High Court delivered its judgment (872 pages
exhibiting 1525 indexed documents). The High Court found the first
three insurers liable to Superwood in the total sum of about IR£
150,000 (plus interest). Superwood was therefore entitled to its
re-trial costs only up to the date of the lodgements and,
consistently, the first three insurers were entitled to their costs
from the date of their lodgements. The High Court also granted an
injunction freezing Superwood’s assets up to the value of IR£
5,000,000 to cover the estimated legal costs of the insurers.
- On
16 May 2001 Superwood appealed the High Court judgment to the Supreme
Court invoking 336 separate grounds of appeal. Later that month
Superwood also appealed against the injunction.
- On
21 December 2001 the first three insurers applied to the Supreme
Court for an order for security for costs as regards their defence of
the appeal. On 12 April 2002 the Supreme Court ordered the payment by
Superwood of security for costs (section 390(1) of the Companies Act
1963) and stayed the substantive appeal pending payment. The Supreme
Court noted that the issue on re-trial was quantum, not liability,
and that an arguable right of appeal existed as to quantum. However,
an order for security for costs was warranted since Superwood
comprised limited liability companies which had pursued expensive and
protracted litigation exposing the insurers to a substantial
financial burden in which Superwood’s claim to substantial
damages had been rejected.
- On
30 October 2002 and 26 March 2006, respectively, the Master of the
High Court determined the amount of security to be lodged (about
1,600,000 euros, “EUR”) and the High Court dismissed
Superwood’s appeal. The High Court recorded that Superwood’s
claim amounted to approximately IR£92,000,000. From October
2003 a Senior Counsel joined Superwood’s legal team. On 17
October 2003 the Supreme Court dismissed Superwood’s appeal and
ordered that security for costs be paid into court within three
months. On 19 December 2003 and on 16 and 23 January 2004 the Supreme
Court refused Superwood’s applications for an extension of the
time to furnish security for costs, for the appeal to be heard in two
stages and for it to be allowed to substitute a new notice of appeal.
- Further
to the application of the first three insurers (February 2004), on 15
March 2004 the Supreme Court struck out Superwood’s appeal for
failure to furnish security for costs. It also dismissed Superwood’s
further applications, inter alia, for leave to amend its
notice of appeal or to file a new notice. The Supreme Court
considered that it was within its inherent jurisdiction to dismiss
proceedings by a company which had failed to provide security for
costs ordered in the interests of the proper administration of
justice. This was not inconsistent with the constitutional right of
access to an appeal. Had Superwood made some realistic proposal to
furnish security for costs, the Supreme Court might have been
disposed to consider it. However, Superwood choose instead to bring
numerous applications in a futile attempt to re-open the security for
costs matter already determined by the Supreme Court in April 2002.
In its judgment, the Supreme Court referred to the claim as amounting
to IR£92,000,000.
-
Superwood maintained that the taxation of various awards of costs in
its favour has not been completed. It would appear that the taxing
master disallowed part of its claim and, when Superwood appealed this
to the High Court, the High Court made a security for costs order
against Superwood. Superwood has not made this payment to date.
- On
5 January 2004 Superwood issued proceedings against Ireland and the
Attorney General seeking to challenge the constitutionality of
section 390(1) of the Companies Act 1963. By judgment and order of 5
and 13 July 2005, respectively, that action was dismissed as
disclosing no reasonable cause of action.
THE LAW
I. COMPLAINTS OF THE FIRST APPLICANT
- The
first applicant, as well as being the Executive Chairman of the
applicant companies, referred to his shareholdings in those
companies. The Court also notes that he was not a party to the
domestic proceedings. Having regard to the principles established in
the Court’s case law, the Court does not consider that he can
claim to be a victim of a violation of Article 6 of the Convention
(see, for example, Agrotexim and Others v. Greece, 24
October 1995, §§ 59-72, Series A no. 330 A; and Veselá
v. Tobiáš (dec.), no. 54811/00, 13 December
2005).
- It
follows that the first applicant’s complaints are incompatible
ratione personae with the provisions of the Convention within
the meaning of Article 35 § 3 and must be rejected in accordance
with Article 35 § 4 of the Convention.
- The
Court has considered below the complaints of the applicant companies,
which are referred to collectively as “Superwood”.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION (REASONABLE TIME)
- Superwood
complained that the length of the proceedings was incompatible with
the “reasonable time” requirement laid down in Article 6
§ 1 of the Convention, which provision reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
- The
Government contested that argument.
- The
Court notes that the period to be taken into consideration began on
28 June 1989. As to when the period ended, the Government maintained
that the final decision was delivered by the Supreme Court in March
2004 and Superwood argued that, since the taxation of costs was
unresolved, the proceedings had not ended. The Court recalls that a
taxation of costs procedure is to be seen as a continuation of the
substantive litigation and accordingly as part of the “determination
of ... civil rights and obligations” (Robins v. the United
Kingdom, 23 September 1997, § 29, Reports of Judgments
and Decisions 1997 V; Doran v. Ireland, no. 50389/99,
§ 43, ECHR 2003 X; and McMullen v. Ireland, no.
42297/98, § 31, 29 July 2004). Since the Government did not
dispute that taxation of costs has not been completed, the
proceedings can be considered to be continuing.
- The
period under consideration is therefore almost 22 years.
A. Admissibility
- The
Government argued that there had been a failure to exhaust domestic
remedies as Superwood did not take an action for damages for breach
of the constitutional right to an early trial. Superwood disagreed.
- The
Court’s recalls its conclusion in McFarlane v. Ireland
([GC], no. 31333/06, § 128, ECHR 2010 ...) that such an
action did not constitute an effective remedy available in theory and
in practice within the meaning of Article 13 in a case concerning the
length of criminal proceedings. It sees no reason to find otherwise
in a case concerning the length of civil proceedings (see, also,
Doran v. Ireland, cited above, at §§ 55-69 and
O’Reilly and Others v. Ireland, no. 54725/00, § 37,
29 July 2004). This objection of the Government must therefore be
dismissed.
- The
Court further considers that this complaint of Superwood is not
manifestly ill-founded within the meaning of Article 35 § 3 (a)
of the Convention and that it is not inadmissible on any other
ground. It must therefore be declared admissible.
B. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
having regard to the criteria laid down in the Court’s
case-law, in particular the complexity of the case, the conduct of
the applicants and of the relevant authorities, and the importance of
what was at stake for the applicants (see, for example, Comingersoll
v. Portugal [GC], no. 35382/97, § 19, ECHR 2000-IV and, the
above cited Doran case, at § 44).
- The
Court has already found violations of Article 6 § 1 of the
Convention in cases against Ireland raising similar issues (the
above-cited cases of Doran, O’Reilly and McMullen
as regards civil proceedings and the above-cited case of
McFarlane as regards criminal proceedings). While the Court
has reached the same conclusion in the present case, it has
highlighted below certain differences of degree in the present case.
- In
the first place, the Court considers it evident that the proceedings
were procedurally, legally and factually complex having regard to the
issues disputed, to the volume of pleadings and the length of the
judgments, to the amount of interim applications and appeals
therefrom and to the fact that the trial and re-trial were two of the
longest High Court trials in Irish civil litigation history. The very
nature of the action itself contributed significantly to the overall
length of the proceedings.
- Secondly,
the Court is of the view that the conduct of Superwood also accounted
for much delay in the proceedings. In particular, while Superwood was
entitled to make use of all procedural steps relevant to it, it must
bear the consequences when delay results (McMullen v. Ireland,
§ 35). In this respect and, in particular during the re-trial
phase of the proceedings, Superwood made numerous applications to the
Supreme Court (including an appeal against the judgment on re-trial
which contained over 300 grounds of appeal), the majority of which
applications were not successful. Moreover and importantly, the
failure to resolve the taxation of costs matter since March 2004 is,
on Superwood’s own submissions, the result of the refusal to
pay security for costs as ordered by the High Court and thus the last
7 years delay is entirely attributable to Superwood.
- While
the Court therefore considers that the complexity of the case and the
conduct of Superwood contributed in no small part to the delay in the
proceedings, those factors alone do not explain the overall length of
the proceedings. The Court has therefore examined the conduct of the
authorities. In this respect, the Court recalls in particular that,
contrary to the Government’s submission, even a principle of
domestic law that parties to civil proceedings are required to take
the initiative to progress the proceedings, does not dispense a State
from the requirement to organise its system to deal with cases within
a reasonable period of time: if a State allows proceedings to
continue beyond a “reasonable time” without doing
anything to advance them, it will be responsible for the resultant
delay (Foley v. the United Kingdom, no. 39197/98, § 40,
22 October 2002; Price and Lowe v. the United Kingdom, nos.
43185/98 and 43186/98, § 23, 29 July 2003 as cited in
McFarlane v. Ireland [GC], no. 31333/06, § 152, ECHR
2010 ...). Moreover, particular diligence was required of the
authorities following the appeal judgment of 1995 which ordered a
re-trial in a complex case 6 years after the action had begun. The
periods of delay noted below have been assessed in the light, inter
alia, of these principles.
- In
the first place, the Court notes that the period between the lodging
of Superwood’s appeal to the Supreme Court (December 1991) and
its hearing (early 1995) was marked, not only by numerous
adjournments and several requests by the Supreme Court to the parties
for different forms of pleadings, but also by a lack of initiative by
the authorities to progress the appeal certified as ready since
October 1992. The Court does not consider a delay of over 3 years to
hold an appeal hearing, even in this complex case, to be justified.
Secondly,
the Court notes that the first hearing date fixed for the re-trial
(November 1996) was 17 months after the judgment requiring that
re-trial.
Thirdly,
while the Court considers that it may well have been more efficient
to adjourn the re-trial pending the re-trial judge’s illness
rather than to appoint a third High Court judge to such a complex
case, this adjournment led to over 5 months’ delay during the
re-trial (taking account of the two-month judicial vacation period).
Thereafter and until May 1998, the Government did not dispute that
the re-trial judge did not spend all available trials dates on the
case. Once the High Court re-trial was finished, a year passed before
judgment was delivered, at which point the action was in being for
almost 12 years.
Fourthly,
and while Superwood’s appeal to the Supreme Court of 2001 was
extensive, that appeal was not determined on its merits but on the
basis of the narrower question of security for costs. However, while
the relevant insurers applied for an order for security for costs in
December 2001, the Supreme Court did not strike out the appeal for
failure to pay those costs until March 2004, a delay of almost 2 and
half years. It is true that the calculation and payment of security
for costs was contested, determined and appealed during this period:
however, the Court does not consider that sufficient diligence was
exercised at this point by the authorities to bring lengthy
proceedings to a speedy conclusion.
Fifthly,
on the Government’s own observations, the overall length of
this complex commercial case was not a fatality. They accepted that
the present case would now be examined by the Commercial Court
(established in 2004) and explained that that court examines complex
commercial cases in markedly shorter periods of time.
- Accordingly,
the Court finds that the above-described delays were attributable to
the competent authorities, were not justified by the submissions of
the Government and contributed importantly to the overall length of
the proceedings.
- Finally,
having regard, inter alia, to the sums of money at issue (the
High and Supreme Courts described Superwood’s claim as having
risen during the proceedings to approximately IR£90,000,000,
paragraphs 20 and 21 above), there was evidently much at stake
for Superwood.
- In
such circumstances, the Court considers that the length of the
present proceedings was excessive and failed to meet the “reasonable
time” requirement and finds that there has therefore been a
breach of Article 6 § 1 of the Convention.
III. REMAINING COMPLAINTS
- Superwood
also complained under Article 6 § 1, alone and in conjunction
with Article 14 of the Convention, of a denial of access to court as
a result of the order for security for costs of the Supreme Court of
March 2004. Superwood also took issue under these Articles with
various matters concerning the re-trial judge arguing, inter alia,
that his health, hostile attitude and inexperience had a negative
impact on the trial and the resulting judgment, which they considered
was inconsistent and incorrect.
Superwood
further complained under Article 1 of Protocol No. 1 about the
domestic costs awards against them, arguing that they were wrongfully
deprived of their possessions.
Finally,
Superwood complained under Article 13 that they were deprived of an
effective remedy as a result of the security for costs order and,
further, that they had no remedy to challenge the medical fitness of
the re-trial judge.
- However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that these complaints do not disclose any appearance of a violation
of the rights and freedoms set out in the Convention or its
Protocols.
- It
follows that these complaints are manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
1. Pecuniary
- Superwood
made detailed submissions claiming compensation for pecuniary damages
including for property and other material loss, loss of business and
loss of business opportunities. They requested the lifting of the
current High Court injunction to release monies to them to brief an
expert to fully evaluate their pecuniary losses.
- The
Government considered that there was no causal connection between the
pecuniary damages claimed and the violation established.
- The
Court recalls that there must be a clear causal connection between
the violation of the Convention established and the damage claimed
(the above-cited Doran judgment, at § 73). The
complaints, other than those concerning the excessive length of the
proceedings, were declared inadmissible and the Court has identified
what it considers to be unjustified periods of delay attributable to
the authorities.
- Accordingly,
and quite apart from briefing experts to assess the claimed losses,
Superwood’s numerous submissions on just satisfaction
(including on causal link) did not attempt to draw any precise causal
connection between periods of unjustified delay and any precise
pecuniary impact. No award is accordingly made for pecuniary damage.
2. Non-pecuniary damage
- Superwood’s
only claim under this heading was for an ex-gratia award for
non-pecuniary damage (mainly stress related) sustained by one of
Superwood’s solicitors during the domestic proceedings. The
Government considered that there was no causal connection between the
damages claimed and the violation established.
- The
Court notes that the solicitor, to which Superwood referred, is not
an applicant and it therefore makes no award under this heading.
B. Costs and expenses before the Court
- Superwood
claimed EUR 37,500 for Senior Counsel’s costs (150 hours
work at EUR 250 per hour) in preparing the application and
observations as well as EUR 16,800 for their legal representative’s
work (84 hours work at EUR 200 per hour), amounting to a total
claim in legal costs and expenses of EUR 65,703 inclusive of
value-added tax (“VAT”). EUR 2000 is also claimed in
secretarial and administrative costs.
- The
Government objected to this claim.
- Regard
being had to the documents in its possession and to its case-law as
well as the subject matter and complexity of the proceedings before
this Court, the Court considers it reasonable to award the sum of EUR
3,800 in legal costs and expenses, inclusive of VAT plus any other
tax that may be chargeable to Superwood.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Declares by a majority the applicant companies’
complaint concerning the excessive length of the proceedings
admissible and the remainder of the application inadmissible;
- Holds by six votes to one, that there has been a
violation of the reasonable time requirement of Article 6 § 1 of
the Convention as regards the applicant companies;
- Holds by six votes to one,
(a) that
the respondent State is to pay the applicant companies, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the amount of
EUR 3,800 (three thousand eight hundred euros), inclusive of VAT
plus any other tax that may be chargeable, in respect of costs and
expenses of the Convention proceedings; and
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the remainder of the claim
for just satisfaction.
Done in English, and notified in writing on 8 September 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean
Spielmann Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge Ann
Power is annexed to this judgment.
D.S.
C.W.
DISSENTING OPINION OF JUDGE POWER
The question of whether an effective remedy in damages for breach of
a Constitutional and Convention right to trial within a reasonable
time exists in Ireland was the issue which came before this Court in
the recent case of McFarlane v. Ireland.
That case involved criminal proceedings and it was not contested that
there exists a considerable body of domestic case law that
demonstrates that damages for a breach of a Constitutional right are
readily available (see § 85 of the McFarlane Judgment).
There was also opened to the Court independent expert opinion to the
effect that a Constitutional remedy is not just probably but “almost
certainly” available in Ireland.
In those circumstances, I shared the opinion of the dissenting Judges
that the probability of such a remedy had been established by the
Respondent State and that there was, thus, an obligation upon a
complainant to exhaust it prior to lodging an application with this
Court.
For the reasons set out in the detailed joint dissenting opinion in
McFarlane I voted against the majority on the admissibility
and merits of the claim and I did likewise in the instant case. The
consistent approach of this Court as articulated and reiterated by
the Grand Chamber in Selmouni v. France
has been that the complaint which an applicant intends to make
subsequently to this Court must first have been made to the
appropriate domestic body.
The
instant application was lodged in 2004. It is clear from the facts as
outlined in the Judgment that the substance of the applicants’
claims before the domestic courts was not concerned with an alleged
breach of their constitutional right to a trial within a reasonable
time. The proceedings were, as the majority points out, procedurally,
legally and factually complex, but the dispute in issue did not
concern the legal concept of the right to a trial within a reasonable
time. It involved, rather, matters relating to insurance law and,
subsequently, security for costs and company law. In my view, any
complaint or claim which the applicants wish to make in relation to
‘length of proceedings’ ought to have been made, firstly,
at domestic level.
The
dissenting judges in McFarlane noted that the Judgment stood
as an invitation to all who fail to have their allegedly lengthy
criminal proceedings prohibited in Ireland to simply by-pass the
domestic courts and to come directly to Strasbourg for an award of
damages. In the light of that ‘invitation’ (extended in
this case to civil proceedings) applications lodged in this Court
after the date of the delivery of the McFarlane judgment
may require consideration of additional matters to those outlined
herein.
