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The personal representative of Declan Arthurs, one of nine men shot by soldiers in 1987, applied to strike out a defence relating to the delay in disclosure in a civil case relating to Mr Arthurs’ death.

It was noted at the outset that the Mr Arthurs’ death had been the subject of a criminal investigation which led to no prosecutions; an inquest which found that all nine men had died from serious and multiple gunshot wounds; a judicial review of that decision in which the High Court refused to quash the Coroner’s decisions; and a civil case against the Ministry of Defence and the Chief Constable.

The High Court observed that: “It is important to note that this court is not tasked with any role in connection with either the criminal investigation into the death of Mr Arthurs or the inquest into his death.”

The current case concerned an application for an order pursuant toOrder 24 Rule 19 of the Rules of the Court of Judicature dismissing the second defendant’s defence.

The plaintiff accepted that an alternative to such an order would be an Unless Order, namely an order that, unless the second defendant serves a list of documents, the second defendant’s defence should be struck out.

The initial application involved the Chief Constable arguing that additional time was required to provide a list of documents, due to the volume of sensitive documentation, the lack of resources available, and the number of legacy inquests facing the PSNI.

A list of non-sensitive documents was delivered, but the Court was told that full delivery could taken “many months”.

The High Court initially adjourned the application to strike out the defence. However, on appeal Mr Justice Stephens was provided with the plaintiff’s skeleton argument, which contained authorities that had not been opened to Master Bell in the initial decision.

The issue was therefore referred back for a full decision.

The plaintiff argued that there had been a breach of Article 2 of the European Convention on Human Rights.

Citing Öneryildiz v Turkey (ECtHR Application no. 48939/99), it was further argued that there was a requirement imposed upon the state to act with “exemplary diligence and promptness”.

Citing Güleç v. Turkey (Application no. 21593/93), it was submitted that the Court was not entitled to take into account the limited resources available to the defendant, with Makaradze and Sikharulidze v Georgia (Application 35254/07) and Dybeku v Albania (Application No 41153/06) cited as authorities for the submission that a state is required to comply with article 2 no matter what burdens it faces in terms of resources.

The plaintiff also submitted that Article 6 of the Convention meant that lack of resources cannot be a relevant factor for the court when determining whether delay is compatible with article 6, citing R (Noorkoiv) v Secretary of State for the Home Department and Another 1 WLR 3284 in support of this application.

The defendant countered these arguments by again asserting the difficulties in conducting a full discovery, including the size of the task, the requirement that PSNI exercises its statutory duty of protecting life and preventing crime, and the fact that there are approximately 54 legacy inquests to be serviced by the PSNI Legacy Support Unit.

In relation to the Convention right arguments of the plaintiff, the defendant argued that civil proceedings were expressly excluded from article 2 procedural obligations, citing Hugh Jordan v United Kingdom (Application No. 24746/94), McShane v United Kingdom (Application No. 43290/98) and R (Middleton) v West Somerset Coroner 1 A.C. 182.

Further, the plaintiff did not provide any authority for the proposition that Article 6 prohibited a court from taking into account the resources of the second defendant when permitting it time to provide a list of discoverable documentation.

After accepting that where a state uses lethal force there must be some form of effective official investigation (McCann v United Kingdom), the High Court noted The Matter Of Three Applications By Hugh Jordan For Judicial Review NIQB 11, which summarised the nature of an Article 2 compliant investigation, as considered in Jordan v UK (2003) 37 E.H.R.R. 2 and in Nachova & others v Bulgaria (2006) 42 EHRR 43.

However, the Court agreed with the defendant’s argument that Article 2 obligations did not apply to civil proceedings, which were brought by the applicant rather than the official investigation initiated by the state.

Thus, the plaintiff’s arguments under that Article were dismissed.

In fact, the Court noted that under section 6 of the Human Rights Act 1998, the PSNI were obliged to act in accordance with Convention rights.

They therefore could not be made to rush disclosure, in case to do so involved the revealing of agents’ identities and placed lives at risk, thereby breaching Article 2.

In relation to the article 6 arguments, Master Bell noted his previous decision in Patrick Ferran v Chief Constable of the Police Service of Northern Ireland NIMaster 4, in which he found that where a civil action has not been brought to a hearing within a reasonable time, it would not be appropriate to stay or dismiss the proceedings unless there can no longer be a fair hearing.

It was noted that this was affirmed on appeal in Patrick Ferran v Chief Constable of the Police Service of Northern Ireland NIQB 137.

Master Bell observed: “There may or may not be a breach of the reasonable time guarantee in Article 6 in respect of the time it has taken for this civil litigation against the state to come to trial. However that is not an issue at this time.”

As the plaintiff had not made any submission that there could no longer be a fair hearing or that it is otherwise unfair to have the case determined at trial, the article 6 argument could not provide an appropriate legal basis to justify striking out the defendant’s defence.

Turning to the general law, the Court cited Davis v Northern Ireland Carriers NI 19 as constituting the authority over whether to extent time for compliance with an order.

The Court also noted that under Order 1 Rule 1A of the Rules of the Court of Judicature, it was clear that there was no “one size fits all” approach.

Master Bell noted that: “This is not a case where a defendant has failed over a period of many years to produce discovery. This is a case where an order requiring a list of documents was made less than 12 months ago and the party subject to that order is claiming unprecedented difficulties have prevented it from complying as yet in a context where it has a statutory responsibility to avoid handing over information which might put the lives of others at risk.”

Nevertheless, the defendant’s claim that discovery would take “many months” was unfortunately vague.

Having regard to all the facts and circumstances, it was found that it would be inappropriate to strike out the defendant’s defence or to make an Unless Order.

However, it was noted that there would likely be a review to ensure that the parties were being properly diligent in respect of their duties.

Master Bell therefore made the defendant aware that this was likely, and that it must be must recognised that the remedy that lies in the hands of the court hearing these civil proceedings, namely the striking out of its defence and marking judgment in favour of the plaintiff, is a remedy which is not available to a coroner’s court.

Master Bell concluded that: “While neither of the parties wish, for different reasons, to see that remedy being granted, it is the ultimate sanction in the event that there is continuing delay in making proper discovery once it reaches the point which the court concludes is unacceptable.”