JUDGMENT
In the matter of an application by Hugh Jordan for
Judicial Review (Northern Ireland)
before
Lady Hale, President
Lord Reed, Deputy President
Lord Carnwath
Lord Lloyd-Jones
Lady Arden
JUDGMENT GIVEN ON
6 March 2019
Heard on 23 October 2018
Appellant 1
st Respondent
Karen Quinlivan QC Sean Doran QC
Fiona Doherty QC Ian Skelt
(Instructed by Madden
and Finucane Solicitors)
(Instructed by Coroners
Service for Northern
Ireland)
2
nd Respondent
Tony McGleenan QC
Martin Wolfe QC
Adrian Colmer
(Instructed by Crown
Solicitor’s Office
(Belfast))
3
rd Respondent
Peter Coll QC
Philip McAteer
(Instructed by
Departmental Solicitor’s
Office)
Respondents:
(1) Coroners Service for Northern Ireland (written submissions only)
(2) Chief Constable of the Police Service for Northern Ireland
(3) Department of Justice
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LORD REED: (with whom Lady Hale, Lord Carnwath, Lord Lloyd-Jones
and Lady Arden agree)
1. The central issue in this appeal is whether the Court of Appeal in Northern
Ireland was entitled to order that a claim for damages under section 8 of the Human
Rights Act 1998, for breach of the requirement under article 2 of the European
Convention on Human Rights 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 facts
2. The appellant’s son, Pearse Jordan, was shot and killed by a member of the
Royal Ulster Constabulary on 25 November 1992. In 1994 the appellant’s husband,
Hugh Jordan, made an application to the European Court of Human Rights,
complaining that the failure to carry out a prompt and effective investigation into
his son’s death was a violation of article 2. An inquest commenced on 4 January
1995 but was adjourned shortly afterwards. On 4 May 2001 the European Court of
Human Rights upheld Mr Jordan’s complaint and awarded him £10,000 in respect
of non-pecuniary damage, together with costs and expenses: Jordan v United
Kingdom (2003) 37 EHRR 2.
3. A fresh inquest into Pearse Jordan’s death commenced on 24 September
2012, and a verdict was delivered on 26 October 2012. Hugh Jordan then brought
proceedings for judicial review of the conduct of the inquest, which resulted in the
verdict being quashed: In re Jordan’s application for Judicial Review [2014] NIQB
11. A subsequent appeal against that decision was dismissed: [2014] NICA 76.
4. In 2013 Hugh Jordan brought the present proceedings for judicial review, in
which he sought declarations that the Coroner and the Police Service of Northern
Ireland (“PSNI”) had been responsible for delay in the commencement of the inquest
in violation of his rights under article 2, together with awards of damages under
section 8 of the Human Rights Act in respect of the delay from 4 May 2001 until 24
September 2012. Stephens J upheld the claim against the PSNI, 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: [2014] NIQB 11, paras 350-359. Following a further
hearing in that case and five other similar cases, he made a declaration that the PSNI
“delayed progress of the Pearse Jordan inquest in breach of article 2 of the European
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Convention on Human Rights and contrary to section 6 of the Human Rights Act
1998”, and awarded damages of £7,500: [2014] NIQB 71.
5. The Chief Constable of 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. Hugh Jordan cross-appealed against the dismissal of his claim against
the Coroner. The Department of Justice was joined as a respondent to the
proceedings.
6. It is a matter of agreement before this court that, 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 only. The judgment
itself states that the issue of timing was raised by counsel for the PSNI, who argued
that the application was time-barred under section 7(5) of the Human Rights Act,
since there was no finding that delay in breach of article 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 section 7(5)(b).
7. Judgment was handed down on 22 September 2015: [2015] NICA 66. That
judgment was subsequently withdrawn and a revised judgment, also dated 22
September 2015, was issued on 12 May 2017. The resultant orders, also dated 22
September 2015, were made on 10 June 2017. The judgment and orders are
discussed below. The immediate result of the orders was a stay of proceedings.
8. 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, the present
appellant, but without success: In re Jordan’s application for Judicial Review [2018]
NICA 34. She also took over the conduct of the present proceedings from her
husband as his health had deteriorated so as to prevent him from taking part.
9. 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 on the present proceedings. It had been in place for a period of two years
and one month.
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10. Both the Chief Constable’s appeal and the claimant’s cross-appeal were
heard during 2018. The cross-appeal was dismissed: [2018] NICA 23. The appeal
has not yet been decided.
11. 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.
The judgment and order of the Court of Appeal
12. In its judgment the court considered how section 7(5) of the Human Rights
Act applies to complaints of delay in relation to the holding of inquests. Section
7(1)(a) provides that a person who claims that a public authority has acted in a way
which is made unlawful by section 6(1) (ie has acted in a way which is incompatible
with a Convention right) may bring proceedings against the authority under the Act.
Section 7(5) provides:
“(5) Proceedings under subsection (l)(a) must be brought
before the end of –
(a) the period of one year beginning with the date on
which the act complained of took place; or
(b) such longer period as the court or tribunal
considers equitable having regard to all the
circumstances …”
13. The court observed that it was apparent from the history of this case and other
legacy cases that delay as a result of failures to disclose evidence had been a
recurring problem. Where there had been a series of failures of disclosure, was it
necessary, the court asked, for the applicant to issue proceedings within one year of
the end of a particular failure to disclose, or was the applicant entitled to include
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periods of delay resulting from earlier failures where proceedings were issued within
12 months of the latest failure? Might the answer to that question depend upon
whether there was a finding that all of the failures of disclosure were part of a policy
or practice to cause delay?
14. The court did not answer these questions, but it observed that in the light of
these issues, and the very long delays occurring in legacy cases, those who wished
to avoid being captured by the primary limitation period under section 7(5)(a) might
well feel obliged to issue proceedings separately in relation to each and every
incident of delay. That might involve separate proceedings against different public
authorities allegedly contributing to periods of delay which might or might not
overlap. 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 in respect of
which periods of delay justified an award of damages against which public
authorities. 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 (ie 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.
15. The court stated at para 21:
“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.”
Page 6
This appears on its face to constitute general guidance for all legacy cases in which
damages are sought. The court made it clear at para 22 that it expected there to be
very few, if any, exceptions to this approach:
“We find it difficult to envisage any circumstances in which
there should be an exception to the approach set out in the
preceding paragraph in such cases.”
16. The court concluded at para 23:
“For the reasons given we consider that the claim for damages
for delay should be assessed after the completion of the inquest
but should be made within one year of the completion. Since
we have ordered a fresh inquest in this case that period has not
yet commenced. We will hear the parties on whether the appeal
on the award of damages should be adjourned until after the
inquest or allowed without adjudication on the merits to enable
the issue of a fresh claim.”
The first sentence in this passage again appears to constitute general guidance for
legacy cases (since damages had already been assessed in the present case). So far
as the present case was concerned, the alternatives set out in the third sentence were
either to adjourn further consideration of the appeal until after the inquest had been
completed, or to allow the appeal without a decision on the merits, so that the
proceedings were brought to an end and a further claim could be brought after the
inquest. In the event, the resultant order stayed the proceedings until the conclusion
of the inquest, as explained earlier.
17. Separate orders were made on 10 June 2017 in respect of the appeal and the
cross-appeal. In relation to the appeal, the court ordered:
“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.
2. that where a claim for damages for breach of the article
2 procedural requirement that an inquest be conducted
‘promptly’ is brought within 12 months of the conclusion of
the inquest, time should be extended under section 7(5)(b) of
the 1998 Act [ie the Human Rights Act].
Page 7
3. that the appeal be stayed until the conclusion of the
inquest proceedings.”
In relation to the cross-appeal, the court ordered:
“1. that the issue of delay at ground 7 on the cross-appeal
be stayed until the conclusion of the inquest proceedings.”
18. Paragraph 1 of the order in the appeal was consistent with the general
guidance given in the judgment, and appeared to lay down a general rule that claims
of the present kind should not be brought until an inquest has been concluded. It has
no direct bearing on the present proceedings, where the claim was brought as long
ago as 2013. Paragraph 2 addressed the implications of paragraph 1 in relation to
the limitation period imposed by section 7(5). Only paragraph 3, and the order in the
cross-appeal, directly concerned the present proceedings.
19. The decision of the Court of Appeal appears to have been understood as
laying down a general rule that claims of the present kind could not be brought
before the conclusion of an inquest, and that any claims which had been brought
before that stage should be stayed until then.
The present appeal
20. The present appeal was brought in order to challenge the general guidance
given by the Court of Appeal, reflected in paragraph 1 of the order made in the
appeal. The main issue in the appeal was agreed to be whether the Court of Appeal
“was correct to rule that a victim adversely impacted by delay in the conduct of an
inquest could not bring a claim for damages prior to the conclusion of the inquest”.
The appellant sought to set aside “the judgment and order made by the Northern
Ireland Court of Appeal whereby it decided that her claim for damages for breach
of article 2 ECHR by reason of delay could only be brought after the conclusion of
the inquest into her son’s death”.
In re McCord’s application for Judicial Review
21. After the hearing of the present appeal, the Court of Appeal handed down
judgment in another legacy case where the applicant had applied for leave to issue
judicial review proceedings in which he sought a declaration that the non-disclosure
of certain documents by the PSNI had caused delay in the holding of an inquest, in
violation of his rights under article 2: In re McCord’s application for Judicial
Page 8
Review, unreported, 18 January 2019. The proceedings had been stayed by the High
Court.
22. In the course of its judgment, the Court of Appeal considered the judgment
under appeal in the present proceedings (in its original version). It said at paras 21-
22, in relation to para 27 of its original judgment in the present case (identical to
para 22 of the revised version, cited at para 15 above):
“21. We accept that this passage created the impression that
in every legacy case any application to pursue a remedy by way
of damages for delay could only be dealt with at the end of the
inquest. Indeed it is clear that that was the common
understanding of the parties before the learned trial judge as a
result of which the applicant decided to abandon the
determination of his claim for damages in the proceedings and
rely solely upon the claim for a declaration …
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.”
23. The court observed at para 23 that the case before it was different:
“The inquest in this case has not taken place. No Coroner has
been allocated to hear it and no materials have been provided
to the Coroner’s Service by the police. It is impossible to
estimate how many years it might take before the inquest might
proceed …”
Page 9
In these circumstances the appeal was allowed.
24. In the light of this judgment, it appears that the Court of Appeal intends the
guidance given in the present case to be confined to cases where the only outstanding
issue is damages and where an inquest can be expected to begin within the near
future, if not already under way. The court also indicated in para 22 that the
appropriateness of the stay should be kept under review, and that it should be lifted
if the claim for damages will not otherwise be determined within a reasonable time.
Discussion
25. 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.
26. Claims arising from such delay are brought under section 7(1)(a) of the
Human Rights Act. That provision confers a statutory right on any person who
claims that a public authority has acted in a way which is incompatible with a
Convention right to bring proceedings against the authority, provided that he or she
qualifies as a victim of the unlawful act and brings the proceedings within the time
limits set by section 7(5). The court then has the power to grant appropriate relief
under section 8. This may take the form of relief designed to end the delay, such as
a mandatory order or declaration, or relief designed to compensate for the
consequences of delay, in the form of an award of damages. In the present
proceedings, both a declaration and damages were sought and awarded. The same
remedies were also sought in the McCord case, although the claim for damages was
abandoned in light of the guidance given in the present case.
27. 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.
28. Although the court cannot prevent proceedings from being brought by
persons who claim that their Convention rights have been violated, it can exercise
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powers of case management in relation to those proceedings. Such powers can
include ordering a stay of proceedings in appropriate circumstances. In that regard,
however, three important aspects of Convention rights must be borne in mind.
1. Rights that are practical and effective
29. First, the European Court has emphasised many times that Convention rights
must be applied in a way which renders them practical and effective, not theoretical
and illusory: see, for example, Airey v Ireland (1979) 2 EHRR 305, para 24. The
effectiveness of the right under article 2 to have an investigation into a death begin
promptly and proceed with reasonable expedition could be gravely weakened if
there were a general practice of staying proceedings seeking to secure the prompt
holding of an inquest, typically by obtaining a mandatory order or a declaration.
Although compensation might be payable at a later stage, the primary object of the
Convention, and of the Human Rights Act, is to secure compliance with the
Convention so far as possible, rather than to tolerate violations so long as
compensation is eventually paid.
30. On the other hand, a practice of staying the assessment of damages (as
distinct from the consideration of remedies designed to end the delay) until the
entirety of the delay can be considered is less likely to undermine the effectiveness
of the right, since that is less likely to depend on the point in time at which damages
are assessed and awarded. Nevertheless, it remains necessary to consider whether
that might be the consequence of a stay in the individual case before the court.
2. Determination within a reasonable time
31. Secondly, since the right conferred by section 7(1)(a) of the Human Rights
Act is a civil right within the meaning of article 6 of the Convention, a claimant is
entitled under that article to have his claim determined within a reasonable time.
That right under article 6 is distinct from the article 2 right on which the proceedings
are based. A breach of the article 6 right is itself actionable under section 7(1)(a).
32. The staying of proceedings will be unlawful if it results in a breach of the
“reasonable time” guarantee in article 6. That would be a real possibility in some
cases, if stays until after the completion of an inquest were ordered as a general rule.
In the McCord case, the Court of Appeal observed that it was impossible to estimate
how many years it might take before the inquest might proceed. In the proceedings
brought by Hugh Jordan successfully challenging the verdict of the second inquest,
the Lord Chief Justice remarked that “if the existing legacy inquests are to be
brought to a conclusion under the present system someone could easily be hearing
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some of these cases in 2040”: [2014] NICA 76, para 122. The state of affairs
described in Sir Paul Girvan’s recent judgment In re Hughes’ application for
Judicial Review is consistent with that assessment. Plainly, a stay of that duration,
or anything like it, would constitute a breach of article 6.
3. The proportionality of a restriction on access to the courts
33. Thirdly, since a stay of proceedings prevents a claim from being pursued so
long as it remains in place, it engages another aspect of article 6 of the Convention,
namely the guarantee of an effective right of access to a court: see, for example,
Woodhouse v Consignia plc [2002] EWCA Civ 275; [2002] 1 WLR 2558. It must
therefore pursue a legitimate aim, and there must be a reasonable relationship of
proportionality between the means employed and the aim sought to be achieved: see
Tinnelly & Sons Ltd v United Kingdom (1998) 27 EHRR 249, para 72. It follows
that even in a case where a stay would not render the article 2 right ineffective or
breach the “reasonable time” guarantee in article 6, it is nevertheless necessary to
consider whether it would be a proportionate restriction of the right of access to a
court. As will be explained, that exercise requires consideration of the circumstances
of the individual case before the court.
34. So far as legitimate aims are concerned, the Court of Appeal mentioned two
objectives: that a proliferation of litigation should be avoided, and that the court
should be aware of all relevant circumstances when determining claims. Both of
those aims are clearly legitimate. The court’s concern about a potential proliferation
of litigation was based, as it explained, on uncertainty in the legal profession about
the answers to certain questions affecting the limitation of claims: whether a separate
violation of the article 2 right to a prompt investigation, for which a separate claim
arises, occurs on every occasion when a public authority is responsible for some
measure of unjustified delay; and if so, whether such claims become time-barred
under section 7(5)(a), subject to the court’s exercise of its discretion under section
7(5)(b), 12 months after each claim arises. How those questions should be answered
has seemingly yet to be considered. If a suitable case were brought before the court
for determination, that uncertainty could be resolved one way or the other. Until that
occurs, however, the court’s concern that uncertainty may result in a proliferation of
litigation is reasonable and constitutes an important consideration on one side of the
scales.
35. In relation to the other legitimate aim, namely that the court should be aware
of all relevant circumstances, the point made by the Court of Appeal was that it is
only after an inquest has been completed that it is possible to determine whether
adequate redress for delay requires an award of damages, and if so against which
public authority and in which amount. Whether that is so depends on how damages
are assessed. Hitherto, assessment has not depended on factors which can only be
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considered after an inquest. The possibility of assessing damages on a broadly
conventional basis prior to the conclusion of an inquest is demonstrated by several
judgments of the European Court in cases emanating from Northern Ireland,
including its judgment in the Jordan case.
36. That is not to say, however, that there may not be good practical reasons for
staying the proceedings, where the question arises of whether it is appropriate to
award damages, and if so in what amount. Particularly in a situation where the court
may have to decide claims against different public bodies in respect of the same or
different periods of delay, deferring consideration of these issues until after the
conclusion of an inquest may enable the court to consider all relevant periods of
delay, and responsibility for them, at one and the same time. It is therefore another
means of reducing the risk of an undue burden being placed on the courts by a
proliferation of claims for damages (and potentially for contribution, depending on
how the concept of joint and several liability applies in this context: another question
which seemingly has yet to be considered). As indicated earlier, this is a relevant
and significant factor to be weighed in the balance.
37. 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. The
cogency of the arguments in favour of a stay will depend on the degree of risk that
the proceedings may otherwise result in a proliferation of litigation, if that is the
legitimate aim pursued. 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. In most cases the claimant is
likely to be the widow, parent or child of the deceased, and may suffer anguish as
decades pass without any adequate inquiry into the circumstances of the death,
particularly where there are allegations of state involvement in the death (as in the
present case), and of collusion and cover-up. 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. The present case, for example, illustrates 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.
38. There is no doubt that there may be cases in which it is proportionate to
impose a stay on a claim for damages in a legacy case, weighing the relevant factors
for and against it. There is equally no doubt that there may be cases in which,
weighing those factors, a stay is not proportionate. Since the relevant factors can
differ in nature and weight from one case to another, it follows that courts should
carry out the necessary balancing exercise in the individual case. A virtually
automatic rule requiring all such claims to be stayed until after the inquest,
regardless of their individual circumstances, would not comply with that
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requirement, and in addition, as previously explained, would result in breaches of
the reasonable time requirement of article 6.
The present case
39. The guidance which the Court of Appeal was understood to have given in
paras 21-23 of its judgment in the present case was not consistent with the foregoing
principles. On its face, it involved no assessment of proportionality or consideration
of individual circumstances. It was also liable to render the article 2 procedural right
ineffective, and to result in breaches of the reasonable time guarantee. The
clarification provided in the case of McCord has, however, considerably narrowed
the apparent scope of that guidance, so as to confine it to cases where the only
outstanding issue is damages and where an inquest can be expected to begin within
the near future, if not already under way. The court also indicated that the
appropriateness of the stay should be kept under review, and that it should be lifted
if the claim for damages will not otherwise be determined within a reasonable time.
Guidance to that effect is generally consistent with the principles discussed above,
although it remains necessary to allow for the possibility of exceptions in individual
cases.
40. The foregoing discussion has concerned the general guidance given by the
Court of Appeal in the present case, and the reconsideration of that guidance in the
case of McCord. So far as the present proceedings are concerned, the decision which
is challenged was to stay the claim for damages until the inquest had been concluded.
It has not been argued that the effect of that decision was to render the claimant’s
article 2 right theoretical or illusory, or that there was a breach of the reasonable
time requirement imposed by article 6. On the other hand, it does not appear from
the judgment of the Court of Appeal that it carried out any assessment of the
proportionality of the stay which it ordered. It is uncertain whether the court would
have ordered the stay if such an assessment had been conducted, particularly if Mr
Jordan’s ill health had been drawn to its attention.
Conclusion
41. It is impossible not to feel considerable sympathy for the serious practical
difficulties which the courts in Northern Ireland face in dealing with legacy cases,
and which prompted the guidance which was given in the present case and clarified
in the case of McCord. As has been explained, the guidance as originally given was
defective on its face, and the appellant was entirely justified in bringing this appeal
in order to challenge it. The Court of Appeal has, however, recognised that the terms
in which it expressed itself have caused difficulty, and it has resolved the problem
in its McCord judgment, to which I would only add that it remains necessary to
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consider whether that general guidance should be applied in the circumstances of an
individual case.
42. So far as complaint is made about the order made in the present proceedings,
this court would not normally question a case management decision. The decision
in question was however taken without any evident consideration of its
proportionality in the particular circumstances of this case. In addition, it is uncertain
whether the Court of Appeal would have reached the same decision if the question
of proportionality had been considered in the light of all the relevant facts, including
the then claimant’s declining health. In these circumstances I would allow the
appeal.