In the matter of an application by Hugh Jordan for Judicial Review (Northern Ireland)

The Supreme Court considered whether the Northern Ireland Court of Appeal was entitled, as a general rule, to require claims for damages under section 8 of the Human Rights Act 1998 for delay in meeting the article 2 procedural obligation to commence and pursue an investigation promptly, not to be brought (or to be stayed) until after the conclusion of the inquest. The court held that a blanket rule requiring stays until the inquest is concluded was defective. Section 7(1)(a) and the limitation rule in section 7(5) of the Human Rights Act and the article 2 right permit proceedings to be brought when the delay reaches the requisite threshold, but court case management powers may justify a stay in particular cases. Any stay must be justified by legitimate aims and be proportionate, having regard to the article 6 right to determination within a reasonable time and the right of access to a court. The Court of Appeal had not carried out the requisite individual proportionality assessment when ordering the stay and giving apparent general guidance; for that reason the appeal was allowed.

Background and facts:

• The appellant is the mother of Pearse Jordan, who was shot dead by a member of the Royal Ulster Constabulary on 25 November 1992.
• The appellant's husband brought an application to the European Court of Human Rights in the 1990s and the Grand Chamber upheld a complaint about lack of a prompt and effective investigation (Jordan v United Kingdom (2003) 37 EHRR 2).
• Various inquests and judicial review proceedings followed; a fresh inquest was ordered and re-run; the appellant subsequently brought judicial review proceedings in 2013 seeking declarations of breach of article 2 and damages under section 8 of the Human Rights Act 1998 for delay between 4 May 2001 and 24 September 2012.

Nature of the application and relief sought:

• The applicant sought declarations that the Coroner and PSNI had delayed the inquest in breach of article 2 and awards of damages under section 8 for that delay.

Procedural posture:

• The case proceeded through the Northern Ireland courts, including judgments at NIQB level and to the Court of Appeal ([2015] NICA 66). The Court of Appeal gave guidance that, in legacy cases, claims for damages for article 2 delay should ordinarily be dealt with after the inquest has been finally determined and stayed the present proceedings until the inquest was concluded.
• The appellant appealed to the Supreme Court challenging the Court of Appeal’s general guidance and its stay order.

Issues framed by the Supreme Court:

1. Whether the Court of Appeal was entitled to lay down a general rule that claims for damages for article 2 delay must be brought only after the conclusion of an inquest.
2. Whether a stay of proceedings in such cases is compatible with the practical and effective nature of Convention rights and with article 6 guarantees (determination within a reasonable time and effective access to a court), and whether any stay must be proportionate in the individual case.

Court’s reasoning and disposition:

• The court emphasised that the right under section 7(1)(a) is statutory and cannot be removed by case management; claimants may bring proceedings once delay meets the article 2 threshold, subject to the time limits in section 7(5).
• Case management powers permit stays in appropriate circumstances, but three Convention-linked constraints apply: (i) Convention rights must be practical and effective; (ii) article 6 requires determination within a reasonable time; and (iii) article 6 protects an effective right of access to a court, so any restriction must pursue a legitimate aim and be proportionate.
• The Court of Appeal’s articulated legitimate aims (avoiding proliferation of litigation and being aware of all circumstances when assessing damages) are legitimate, but a virtually automatic rule staying claims pending completion of inquests would be defective because it fails to weigh individual circumstances, risks rendering article 2 ineffective and may breach article 6 where inquests are delayed for many years.
• The Court of Appeal had not carried out an individual proportionality assessment of the stay it ordered in this case; in those circumstances the Supreme Court allowed the appeal.

Appeal allowed. The Court of Appeal’s general guidance that claims for damages under section 8 HRA for article 2 delay should not be brought (or should be stayed) until after the conclusion of the inquest was defective because it failed to require an individualised proportionality assessment. A stay may be justified in particular cases for legitimate aims (avoiding multiplicity of litigation; enabling consideration of all relevant circumstances) but must be proportionate and consistent with article 6 guarantees. The Court of Appeal had not shown any evident consideration of proportionality in this case, so the stay was set aside.

The claim proceeded through the Northern Ireland courts: decision at first instance and further hearings in the High Court (see [2014] NIQB 11 and [2014] NIQB 71), an appeal to the Court of Appeal ([2015] NICA 66; revised judgment issued 12 May 2017 and orders dated 10 June 2017) which stayed the proceedings pending the inquest, further related decisions including [2014] NICA 76 and subsequent NICA decisions ([2018] NICA 23, [2018] NICA 34). The present appeal was to the Supreme Court ([2019] UKSC 9).