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In the matter of an application by Hugh Jordan for Judicial Review (Northern Ireland) [2019] UKSC 9 (6 March 2019) is a good example of a case where a court, with the best will in the world, in endeavouring to make a good case management decision inadvertently acts unlawfully. It also illustrates the difficulties in moving cases forward in Northern Ireland and the on-going struggles faced by families seeking legal remedies and some form of closure for their grief.

The central issue for the appeal was whether the Court of Appeal in Northern Ireland was entitled to order that a claim for damages under the Human Rights Act 1998, s 8, for breach of the requirement under ECHR, art 2 that an investigation into a death should begin promptly and proceed with reasonable expedition, should not be brought until an inquest has been concluded, or if already brought should be stayed until after that date.

The situation had arisen due to the tortuous history of the investigation into the death of Pearse Jordan (the appellant’s son), who was shot and killed by a member of the Royal Ulster Constabulary on 25 November 1992 – over 26 years ago. Hugh Jordan, his father, doggedly pursued a complaint through the courts that the state had failed to investigate his son’s death, contrary to Article 2. The ECtHR ruled in his favour in 2001. A fresh inquest commenced in October 2012 and a verdict was delivered in October 2012. However, that inquest verdict was quashed following a judicial review brought by Mr Jordan.

In 2013 Hugh Jordan brought the judicial review that underlay the Supreme Court case. He sought declarations that the Coroner and the Police Service of Northern Ireland had been responsible for delay in the commencement of the inquest in violation of his rights under art 2, together with awards of damages under the Human Rights Act, s 8 in respect of the delay. His claim against the PSNI was upheld, the court finding that there had been a series of failures to disclose relevant information until compelled to do so, and also a delay in commencing a process of risk assessment relating to the anonymity of witnesses. Mr Jordan was awarded damages.

The PSNI appealed against the declaration and award of damages, contending that although the PSNI might have been responsible for part of the delay, they should not have orders made against them where other state authorities had also been responsible for the delay but were not party to the proceedings. At the hearing of the appeal the Court of Appeal raised a preliminary issue relating to the timing of the application for judicial review and heard argument on that issue alone. Counsel for the PSNI argued that the application was time-barred under the Human Rights Act, s 7(5) (which requires that proceedings must be brought before the end of the period of one year beginning with the date on which the act complained of took place; or such longer period as the court or tribunal considers equitable having regard to all the circumstances); since there was no finding that delay in breach of art 2 had occurred within the period of 12 months immediately prior to the commencement of the proceedings, and there was no reason why the court should exercise its discretion to extend the period for bringing proceedings under s 7(5)(b), the judicial review was out of time.

Judgment and orders in relation to the timing issue was handed down on 22 September 2015. The immediate result of the orders was a stay of proceedings. A revised judgment and order were handed down in May and June 2017. On 23 October 2017, following a hearing which it had convened of its own motion in the exercise of its case management functions, the Court of Appeal lifted the stay imposed in September 2017, which by that time had been in place for a period of two years and one month.

A further inquest into Pearse Jordan’s death commenced on 22 February 2016 and a verdict was delivered on 9 November 2016. That verdict was challenged in judicial review proceedings brought by Pearse Jordan’s mother, who took over the conduct of the present proceedings from Hugh Jordan as his health had deteriorated so as to prevent him from taking part.

The Court of Appeal, in relation the timing issue took as their starting point the observation that those who wished to avoid being captured by the primary limitation period under s 7(5)(a) might well feel obliged to issue proceedings separately in relation to each and every incident of delay. If each case had to be pursued within one year of the end of each particular element of delay, that would introduce a proliferation of litigation. Practicality and good case management pointed towards ensuring that all of those claims against each public authority should be heard at the same time. In the present case a fresh inquest had been ordered (i.e. the inquest which began on 22 February 2016 and had already been completed when the substituted judgment was delivered). If it did not take place within a reasonable time, that would constitute a fresh breach of the Convention for which a remedy, including damages, might be available. It was when the inquest was completed that it would be possible to examine all the circumstances surrounding any claim for delay, and the court would then be in a position to determine whether adequate redress required an award of damages and, if so, against which public authority in which amount.

That might have been an appropriate finding in the individual circumstances of the case – however where the Court of Appeal went wrong was in suggesting that this was a general principle to be applied across legacy cases, with few exceptions:

“We consider, therefore, that in legacy cases the issue of damages against any public authority for breach of the adjectival obligation in article 2 ECHR ought to be dealt with once the inquest has finally been determined. Each public authority against whom an award is sought should be joined. In order to achieve this it may be necessary to rely upon section 7(5)(b) of the 1998 Act. The principle that the court should be aware of all the circumstances and the prevention of even further litigation in legacy cases are compelling arguments in favour of it being equitable in the circumstances to extend time if required. Where the proceedings have been issued within 12 months of the conclusion of the inquest, time should be extended.”

In relation to the appeal, the Court ordered that:

“1.       that the claim for damages for breach of the article 2 procedural requirement that an inquest be conducted ‘promptly’ should not be brought until the inquest has finally been determined.”

The appeal to the Supreme Court was brought to challenge the general guidance aspect of the Court of Appeal’s ruling and also its individual application to Mr Jordan’s case. However, by the time the Supreme Court handed down judgment, judgment in In re McCord’s application for Judicial Review, unreported, 18 January 2019 had clarified that the ruling in Jordan was not intended to be of general application:

“22.       We consider, however, that this passage of the judgment ought to be interpreted in a rather more qualified manner. First, it has to be borne in mind that the court, having given the judgment in September 2015, decided of its own motion to relist the case for the determination of the damages claim in June 2017 having regard to the fact that the inquest had not yet concluded. Secondly, it needs to be borne in mind that this was a case management decision and was not intended to set forth any rule of law about the entitlement to damages in legacy cases. Thirdly, the case was concerned with circumstances in which there were active and ongoing inquest proceedings but where issues of delay in the course of those active proceedings arose. It was such cases that were being discussed in this passage of the judgment and we consider that the interpretation of para 27 [ie para 22 of the revised version] should be confined to cases in which those circumstances are present.”

Recognising that in effect the guidance given in McCord had narrowed the scope of the Court of Appeal’s ruling in Jordan, the Supreme Court however went on to consider the matters of principle. It was clear that the Court of Appeal could not issue guidance that sought to restrict when a claimant could issue a damages claim, firstly:

“In considering the guidance given by the Court of Appeal in the present case, as clarified in the case of McCord, it must be borne in mind at the outset that, in cases of the present kind, it is the delay itself which constitutes a breach of the claimant’s Convention rights and gives rise to a right to bring proceedings under the Human Rights Act. The breach does not crystallise only after the inquest has been concluded: the claimant is entitled to bring proceedings as soon as the delay reaches the requisite threshold under article 2.

Secondly:

“No court can take away the right conferred by section 7(1)(a), whether in the exercise of case management powers or otherwise. Leaving aside the court’s power to control vexatious litigants and abuses of process, which are not here in issue, there can be no question of anyone being prevented from bringing proceedings at a time of their choosing (subject to the limitation provision in section 7(5)) in respect of a claimed violation of their Convention rights.”

Lord Reed emphasised that while the court can exercise powers of case management, the court had to bear in mind the following:

  • Rights that are practical and effective
  • Determination within a reasonable time
  • The proportionality of a restriction on access to the courts. Whether a stay is proportionate depends on an assessment of the weight of the competing interests at stake in the circumstances of the particular case. On the side of granting a stay will be the degree of risk that the proceedings may otherwise result in a proliferation of litigation. On the other side of the scales, the importance to the claimant of obtaining monetary redress for the violation of his or her Convention rights without avoidable delay has to be considered. The imposition of delay in the determination of their claim for damages may cause additional distress. There may be other factors in individual cases which make the expeditious determination of the claim particularly important. For example, in the Claimant’s case the proceedings were brought Mr Jordan, who was elderly or infirm. Whether a stay is proportionate depends on an assessment of the weight of the competing interests at stake in the circumstances of the particular case. Mr Jordan’s case illustrated the importance of expedition where proceedings are brought by claimants who are elderly or infirm. In striking an appropriate balance between the different interests at stake, the length of any stay will be of considerable importance.

In relation to the guidance given by the Court of Appeal, the Court found that the weighing exercise as to whether proceedings should be stayed, has to be conducted on an individual basis, and a “virtually automatic rule” failed to take these considerations into account and therefore the guidance given by the Court of Appeal was defective on its face. There was no proper consideration of proportionality or consideration of individual circumstances. This had, to a great extent been rectified by the decision in McCord. With regard to the individual application of the guidance in Mr Jordan’s case, the Court noted that it would not normally interfere with a case management decision. However, bearing in mind that it was evident that no proportionality exercise had been carried out, and in particular no consideration of the effect a stay would have on Mr Jordan, who was ageing, the Court allowed the appeal.

Unfortunately the issues of delay that occurred in Mr Jordan’s case are all too common, and it is unlikely that it will improve in the future. Lord Reed, somewhat pointedly noted:

“The delays in the investigation into Pearse Jordan’s death, and the repeated litigation which has characterised that process, are a common feature of what have come to be known as “legacy” cases: that is to say, cases concerning deaths occurring in Northern Ireland during the “Troubles”. In his recent judgment In re Hughes’ application for Judicial Review [2018] NIQB 30, Sir Paul Girvan found that there was systemic delay in these cases, arising from a lack of resources to fund inquests of the length, complexity and contentiousness involved. There were at that point 54 inquests pending in relation to 94 deaths. Only one inquest was heard during 2018. In an effort to address this problem, reforms have been proposed by the Lord Chief Justice of Northern Ireland which, it is hoped, will enable all the outstanding cases to be heard within five years. The proposed reforms have not however been implemented, as the necessary funding has not been provided.”

With regard to funding, maybe someone in government can give the magic money tree a shake. After all, despite Theresa May’s denial of such a tree’s existence, it always seems to provide fruit when the government deems it necessary.