The Supreme Court held that a relative who complains of delay in an article 2 investigation may claim damages under the Human Rights Act 1998 as soon as the delay itself is a breach, and need not wait until the inquest is over. A court may stay that claim, but only where the stay is proportionate in the particular case. A near-automatic rule that every such claim in a Northern Ireland legacy case must wait until the inquest ends is not lawful.
The investigation into Pearse Jordan’s death
Pearse Jordan was killed by a police officer in Northern Ireland in 1992. His father challenged delays in the investigation. An inquest and a series of legal proceedings followed. By the time the Supreme Court heard this appeal, the issue was how courts should handle a damages claim arising from investigative delay.
Law Teacher writing support
Writing a law essay?
We choose a writer who is an expert in your area of law and qualified to at least the academic level you select. Most of our writers hold a master’s degree or PhD, have teaching experience, or both.
Send us your question and, if you wish, any marking criteria. We’ll write an essay to your instructions.
The damages claim and the stay
In 2013 Hugh Jordan sought declarations that the Coroner and the Police Service of Northern Ireland had delayed the inquest, and damages under section 8 of the Human Rights Act 1998 for the period from 4 May 2001 until 24 September 2012. Article 2 requires an investigation into a death to begin promptly and proceed with reasonable expedition. Section 6 makes it unlawful for a public authority to act incompatibly with a Convention right.
Stephens J dismissed the claim against the Coroner. Against the Police Service he found repeated failures to disclose relevant information until disclosure was compelled, and delay in starting a risk assessment about witness anonymity. He declared that the Police Service had delayed the inquest in breach of article 2 and contrary to section 6, and awarded £7,500. The Chief Constable appealed, arguing that orders should not be made against one authority where others had also caused delay but were not parties. There was a cross-appeal against dismissal of the claim against the Coroner.
The Court of Appeal gave general guidance that damages for delay in a legacy inquest ought to be dealt with after its conclusion. It stayed the proceedings. That approach risked leaving a claimant to choose between issuing promptly and waiting until a court was willing to hear the claim.
The right to sue arises from the delay
Lord Reed, with whom Lady Hale, Lord Carnwath, Lord Lloyd-Jones and Lady Arden agreed, held that the delay itself is the breach. It does not arise only when the inquest ends. A victim may sue under section 7(1)(a) as soon as the delay reaches the article 2 threshold, subject to section 7(5). The court may then grant a remedy designed to end the delay, such as a mandatory order or declaration, or damages for its consequences. Both were sought and awarded here. Apart from the control of vexatious litigation and abuse of process, case management cannot take away the right to bring the claim.
A stay of proceedings already brought may be ordered, but three limits apply. Convention rights must be practical and effective: a general practice of staying claims brought to secure a prompt inquest could gravely weaken article 2, because the primary aim is compliance rather than later compensation. Staying only the assessment of damages is less likely to do that, but the effect must still be considered in the individual case. The right to sue is also a civil right, so article 6 requires a decision within a reasonable time. A routine stay until an inquest ends could breach that guarantee. The Lord Chief Justice had observed that, under the system then in place, some legacy inquests might still be being heard in 2040; a stay of that length, or anything like it, would be unlawful. A stay also restricts access to a court, so it must pursue a legitimate aim and be proportionate on the facts.
Proportionality rather than an automatic rule
Avoiding a proliferation of claims, while the limitation questions remained undecided, was a legitimate aim. So was deciding damages in the light of all the circumstances. The second aim was not absolute: assessment had not so far depended on matters available only after an inquest, and the European Court had awarded damages on a conventional basis in the Jordan case before the investigation was complete. There may still be good practical reasons to postpone the damages question where several authorities are said to be responsible for the same or different periods of delay. How far one authority could claim a contribution from another had not been decided.
Whether a stay is proportionate depends on the case. The risk of multiple claims must be set against the claimant’s interest in monetary redress without avoidable delay. Claimants are usually the widow, parent or child of the deceased, and may suffer anguish as decades pass, especially where state involvement, collusion or a cover-up is alleged. Delay in the damages claim may add to that distress. Age or illness, as here, can make expedition particularly important, and the length of the stay is of considerable importance. Some stays will be proportionate and some will not. A virtually automatic rule is unlawful.
The later clarification and this stay
After the hearing, the Court of Appeal indicated in another legacy case, In re McCord, that the guidance should be read more narrowly. Lord Reed understood it as confined to cases where only damages remain outstanding and an inquest is expected to begin soon, if it is not already under way, with the stay kept under review and lifted if the claim will not otherwise be decided within a reasonable time. Guidance of that kind is generally consistent with these principles, provided an exception can still be made.
As it had been understood, the guidance under appeal involved no assessment of proportionality or individual circumstances, and was liable to make the procedural right ineffective and to breach article 6. It was not argued that the stay in these proceedings had made the article 2 right illusory or had breached the reasonable-time guarantee. The Court of Appeal had not, however, visibly considered whether that stay was proportionate. It was uncertain whether the stay would have been ordered if that assessment had been made, particularly if Mr Jordan’s ill health had been drawn to its attention.
Verdict: The Court unanimously allowed the appeal. A stay required an assessment of proportionality in the individual case. The Court did not determine the Chief Constable’s outstanding challenge to the declaration and damages award.
Source: In the matter of an application by Hugh Jordan for Judicial Review (Northern Ireland) [2019] UKSC 9
