About this case:

• Court:
  Court of Appeal
• Judge:
  Sir Declan Morgan

The Court of Appeal said that a comment in Hugh Jordan’s Application, stating that damages ought to be dealt with at the end of the inquest, did not apply to all legacy cases, particularly in these circumstances where the inquest was yet to begin.

Background

In November 1997, Mr McCord’s son, Raymond McCord Jnr was murdered.

As a result of the investigation into the murder, since 2001 there have been a number of preliminary hearings before the coroner. These hearings had been adjourned as a result of Police Ombudsman for Northern Ireland (PONI) investigation, a PSNI investigation, and an investigation by the Public Prosecution Service (PPS).   

As such, an inquest is yet to be carried out into Mr McCord Jnr’s murder.

Judicial review

In 2017 Mr McCord made an application for leave to issue judicial review proceedings against the PSNI, the Department of Justice (DoJ) and the Coroner’s Service (CSNI).

He sought:

1. An order requiring the PSNI to provide disclosure to the coroner of the non-sensitive investigation materials touching upon the death of his son;
2. A declaration that the failure to provide prompt disclosure of the information to the coroner had occasioned delay, violating his rights under Article 2 of the ECHR. 
3. Claims for delay against the CSNI and the DoJ.

In March 2018, the trial judge made a case management direction ordering a stay of the proceedings, noting that at preliminary hearings in 2012 Mr McCord had adopted the position that the inquest should not proceed until the police activities had been completed.

The trial judge referred to a number of pending cases dealing with legacy and concluded that “it would be pointless and disproportionate to adopt a course which would involve any further investment of finite public resources at this stage”.

Refusing leave to appeal to the Court of Appeal, the trial judge commented that nothing had changed in the three months since ordering a stay to alter his assessment that it would be pointless and disproportionate to progress the case further at this stage.

Court of Appeal

It was explained that an appellate court will only interfere with the exercise of the discretion by a first instance judge where:

1. The judge has misdirected himself/herself in law;
2. Has failed to take relevant factors into account;
3. Has taken into account irrelevant factors;
4. Has come to a decision that is plainly wrong in the sense of being outside the generous ambit where reasonable decision makers may disagree.

The Court considered that the only basis supporting the decision of the trial judge to stay the proceedings arose from the Court of Appeal’s decision in Hugh Jordan’s Application [2015] NICA 66 – in which it was concluded 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 had finally been determined.

This 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, however the Court said this should be interpreted in a more qualified manner:

1. It had to be borne in mind that in Jordan, two years later the Court decided of its own motion to relist the case for the determination of the damages claim having regard to the fact that the inquest had not yet concluded.
2. It needed 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.
3. 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.

Stating that Mr McCord’s case was different, the Court said:

The Court said there was no reason why Mr McCord’s case could not proceed both for the claim for a declaration and the claim for damages.

In response to counsel for the PSNI indicating that he could not seek instructions to remove the stay by consent, the Court of Appeal commented: “If that indicates an intention to pursue every legal point in these cases to the bitter end the onus on the court to proactively case manage these matters to a conclusion will unfortunately increase. In our view these difficult cases benefit from the most consensual approach possible by the parties.”

• by Seosamh Gráinséir for Irish Legal News