Jordan, Re for Judicial Review (Northern Ireland) [2019] UKSC 9

Hugh Jordan's son was shot by an RUC officer in 1992. After decades of delayed inquests, Jordan sought damages under the Human Rights Act for Article 2 breaches. The Supreme Court held the Court of Appeal wrongly imposed a near-automatic stay on such claims pending inquest conclusion.

Facts

Pearse Jordan was shot and killed by a member of the Royal Ulster Constabulary on 25 November 1992. His father, Hugh Jordan, successfully complained to the European Court of Human Rights in 2001 that the failure to carry out a prompt and effective investigation violated Article 2 of the Convention (Jordan v United Kingdom (2003) 37 EHRR 2).

A fresh inquest commenced in September 2012, but the resulting verdict was quashed following judicial review. In 2013, Hugh Jordan brought the present judicial review proceedings seeking declarations and damages under section 8 of the Human Rights Act 1998 in respect of delay between 4 May 2001 and 24 September 2012. Stephens J found that the PSNI had delayed the inquest in breach of Article 2 and awarded £7,500 in damages.

On appeal, the Court of Appeal in Northern Ireland raised a preliminary issue concerning timing under section 7(5) of the Human Rights Act. In its judgment ([2015] NICA 66), it issued guidance that in legacy cases, damages claims for delay should not be brought until the inquest has finally been determined, and imposed a stay on the proceedings. Hugh Jordan’s wife (the appellant) took over the proceedings due to his declining health. The matter reached the Supreme Court challenging the general guidance.

Issues

The central issue was whether the Court of Appeal was entitled to order that a claim for damages under section 8 of the Human Rights Act 1998, for breach of the Article 2 procedural obligation 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 should be stayed until that date.

Arguments

Appellant

The appellant challenged the general guidance given by the Court of Appeal, arguing that a victim adversely impacted by delay in the conduct of an inquest should not be prevented from bringing a claim for damages prior to the conclusion of the inquest.

Respondents

The Chief Constable had argued before the Court of Appeal that the application was time-barred under section 7(5) of the Human Rights Act, as there was no finding of breach within 12 months of commencement of proceedings. The rationale underlying the guidance was to avoid a proliferation of litigation and to ensure the court had full awareness of all circumstances before determining claims.

Judgment

Lord Reed (with whom Lady Hale, Lord Carnwath, Lord Lloyd-Jones and Lady Arden agreed) allowed the appeal.

Nature of the right

The Court held that in delay cases it is the delay itself which constitutes the breach of Convention rights and gives rise to a right to bring proceedings. The breach does not crystallise only after the inquest is concluded. Section 7(1)(a) confers a statutory right which no court can take away through case management powers.

Three key Convention considerations

First, Convention rights must be practical and effective, not theoretical and illusory (Airey v Ireland (1979) 2 EHRR 305). The effectiveness of the Article 2 right to a prompt investigation could be gravely weakened by a general practice of staying proceedings seeking mandatory orders or declarations to secure prompt inquests.

Secondly, claimants are entitled under Article 6 to have civil claims determined within a reasonable time. Given observations that legacy inquests might not conclude until 2040, stays of such duration would themselves breach Article 6.

Thirdly, a stay engages the right of access to a court, which must pursue a legitimate aim with a reasonable relationship of proportionality between means and aim (Tinnelly & Sons Ltd v United Kingdom (1998) 27 EHRR 249).

Proportionality assessment

The Court accepted that avoiding a proliferation of litigation and ensuring the court’s awareness of all relevant circumstances were legitimate aims. However, whether a stay was proportionate depended on balancing these aims against the importance to claimants (often elderly or infirm relatives of the deceased) of obtaining monetary redress without avoidable delay. A virtually automatic rule requiring all such claims to be stayed until after the inquest would not comply with the proportionality requirement and would result in breaches of the reasonable time requirement of Article 6.

The McCord clarification

The Court noted that in In re McCord’s application for Judicial Review (18 January 2019), the Court of Appeal had narrowed its earlier guidance, confining it to cases where the only outstanding issue is damages and where an inquest can be expected to begin in the near future, with the appropriateness of any stay kept under review. This clarification was generally consistent with the principles identified, subject to allowance for exceptions in individual cases.

Disposition

The original guidance was defective because it involved no assessment of proportionality or consideration of individual circumstances. The stay ordered in the present proceedings was taken without evident consideration of its proportionality, particularly in light of Mr Jordan’s declining health. The appeal was accordingly allowed.

Implications

The decision confirms that a statutory right to bring proceedings under section 7(1)(a) of the Human Rights Act cannot be removed by case management orders, though case management stays may be imposed in appropriate circumstances. Any such stay must satisfy three Convention requirements: it must not render the underlying Convention right ineffective; it must not breach the reasonable time guarantee of Article 6; and it must be a proportionate restriction on access to the court.

The judgment establishes that courts cannot adopt near-automatic rules requiring stays of damages claims for Article 2 delay pending conclusion of an inquest. Each case requires an individualised proportionality assessment, weighing the legitimate aim of avoiding proliferation of litigation against factors such as claimants’ age, health, and the importance of expeditious redress.

The decision is significant for Northern Ireland’s “legacy” cases concerning deaths during the Troubles, where systemic delay has been documented and many inquests remain pending. It protects the rights of bereaved relatives, often elderly, to seek timely redress for Convention breaches. The Court expressly left open certain questions, including whether each episode of delay constitutes a separate violation giving rise to a separate claim for limitation purposes, and how joint and several liability applies where multiple public authorities contribute to delay. The judgment acknowledges the practical difficulties facing Northern Ireland courts but insists that general guidance cannot displace the need for individualised proportionality assessment.

Verdict: Appeal allowed. The Supreme Court held that the Court of Appeal’s general guidance requiring claims for damages for Article 2 delay in legacy cases to be stayed until after conclusion of the inquest was defective, as it failed to involve any assessment of proportionality or consideration of individual circumstances, and risked rendering the Article 2 right ineffective and breaching the Article 6 reasonable time guarantee. The stay ordered in the present proceedings was set aside as it had been imposed without evident consideration of proportionality, including the claimant’s declining health.

Source: Jordan, Re for Judicial Review (Northern Ireland) [2019] UKSC 9