Northern Ireland Troubles (Legacy and Reconciliation) Act 2023

Section 43

SCHEDULE 9 Determination of whether the prohibition on civil actions applies

Actions that contravene a section 43 prohibition

1 In this Schedule a reference to an action that contravenes a section 43 prohibition is a reference to a relevant Troubles-related civil action that—

(a) is being continued in contravention of the prohibition in section 43(1), or

(b) has been brought in contravention of the prohibition in subsection 43(2).

Right of the Secretary of State to intervene

2 (1) This paragraph applies to an action if—

(a) sufficient evidence is adduced to raise an issue as to whether it is an action that contravenes a section 43 prohibition, or

(b) it otherwise appears to the court that it may be an action that contravenes a section 43 prohibition.

(2) The Secretary of State is entitled to be given notice, in accordance with rules of court, that it may be an action that contravenes a section 43 prohibition.

(3) The Secretary of State (or a person nominated by the Secretary of State) is entitled, on giving notice in accordance with rules of court, to be joined as a party to the action.

(4) Notice under sub-paragraph (3) may be given at any time during proceedings relating to the action.

(5) A person who has been made a party to the action as the result of a notice under sub-paragraph (3) may take part in proceedings so far as they concern the question of whether it is an action that contravenes a section 43 prohibition.

Determination by the court

3 (1) This paragraph applies to an action if sufficient evidence is adduced to raise an issue as to whether it is an action that contravenes a section 43 prohibition.

(2) The court must determine the question of whether it is an action that contravenes a section 43 prohibition in accordance with this paragraph.

(3) The court must assume that it is an action that contravenes the section 43 prohibition unless it is proved that the action does not do so.

(4) If the court determines that it is an action that contravenes the section 43 prohibition, the court must dismiss the action.

(5) But the powers of a court in relation to the determination or recovery of costs (in Northern Ireland or England and Wales) or expenses (in Scotland) of the action are not affected by that obligation to dismiss the action.

(6) Accordingly, the court may comply with that obligation by dismissing the action subject to determination or recovery of costs or expenses.

(7) The court—

(a) must determine the question of whether it is an action that contravenes a section 43 prohibition before considering any other question arising in the action;

(b) must not, in the proceedings to determine the question of whether it is an action that contravenes a section 43 prohibition, consider any other question arising in the action.

(8) But sub-paragraph (7) is subject to the following exceptions—

(a) the court may consider—

(i) the question of whether it is an action that contravenes a section 43 prohibition, and

(ii) any question of limitation law arising in the action,

in the same proceedings;

(b) the court need not comply with sub-paragraph (7)(a), or with sub-paragraph (7)(b), if the court considers that there are exceptional reasons for not complying with it.

(9) In this paragraph “question of limitation law” means a question relating to—

(a) the Limitation (Northern Ireland) Order 1989 (S.I. 1989/1339 (N.I. 11)),

(b) the Foreign Limitation Periods (Northern Ireland) Order 1985 (S.I. 1985/754 (N.I. 5)),

(c) the Limitation Act 1980,

(d) the Foreign Limitation Periods Act 1984,

(e) the Prescription and Limitation (Scotland) Act 1973,

(f) section 190 of the Merchant Shipping Act 1995, or

(g) any other legislation relating to limitation of actions.

Appeals etc

4 (1) This paragraph applies if, in accordance with paragraph 3, the court determines the question of whether an action contravenes a section 43 prohibition.

(2) Section 43 does not stop any proceedings which relate to, or arise out of, the determination, including any appeal or proceedings for costs (in Northern Ireland or England and Wales) or expenses (in Scotland), from being begun or continued.