KYRAN FITZGERALD: Cracks starting to show in judicial system

Delays and high costs linked to the filing of cases are causing cracks to appear in Ireland’s judicial system, damaging the country’s legal competitiveness in the process, writes Kyran Fitzgerald

In Ireland, the wheels of justice often grind surely, but also pretty slowly, or so it would appear.

According to the World Bank, Ireland is an expensive location in which to enforce a business contract — the sixth- most expensive in Europe.

Delays may be one reason why this is so. The country ranks in 90th place globally in this key area.

The length of time, here, from lodgment of legal papers to the handing-out of a judgment is around 650 days. This compares with just 437 days in neighbouring Britain.

The longer the delay, the greater the ultimate payout for those involved in a legal process.

It has been worse in the past, but over the past two decades, the organisation of the courts has been upgraded with the launch of the Court Service and the establishment, in 2004, of a Commercial Court as a fast-track service for large and complex civil cases.

Ireland is generally regarded as being on a par with Britain. The countries have largely similar legal systems, based on a mixture of statute, Common Law, and decisions of the European Court of Justice.

Our judicial system is viewed as independent , our judges as pretty competent in the main. Yet some cracks are showing.

According to the National Competitiveness Council, since January 2012, the cost of legal services here has risen by 8.3% — in line with increases in the cost of professional services in general.

Some 27% of the cost of a claim is accounted for, in Ireland, by legal costs, compared with 22% across the OECD.

The problem of delay in the system was highlighted recently when the High Court finally gave the go-ahead for the long-delayed Apple data centre in

Engineers Ireland has, in recent days, called for the planning of major infrastructure problems to be streamlined.

The ability of individuals to use the legal system to put roadblocks in the way of development is a feature of our system but is the emphasis placed by our superior courts on individual rights serving to frustrate the interests of the wider community?

Certainly, we are a litigious lot.

This of course, is nothing new. The fondness for the ‘day in court’ has long been an integral part of Irish life.

In 2016, there were 127,400 incoming claims, while just under 75,500 were resolved. Some 22,000 personal injury suits were filed, an increase of 15% on 2015. Personal injury payouts totalled €147m — down from €168m in 2015, according to the Court Service.

Dealing with the debris of the economic crash continues to place strains on the system. The Personal Insolvency Service has not been as effective as its promoters hoped it would be. The judiciary has promoted the use of alternative dispute resolution and mediation, in particular.

Some practitioners have trained as mediators, but many would prefer that disputes dragged on. The legislators have dragged their heels. A new Mediation Bill was finally introduced this year. It recently passed into law.

Emma Kerins of Chambers Ireland welcomes the new legislation. She believes that Ireland is lagging behind when it comes to the management of legal cases. This is despite considerable pressure from leading judges.

There are other blockages in the system too. A new judicial layer, the Court of Appeal, was established three years ago to take some pressure off an over-burdened Supreme Court. Now, the court is itself weighed down with cases. Its president, Seán Ryan, has been seeking the appointment of four new judges to this court.

The Court of Appeal had 520 cases on the books at the end of 2016, compared to 380 at the start of the year. “It is working flat-out,” said one source.

Elsewhere, delays to cases once they reach the court vary, ranging from just one week to four months, depending on their complexity, when they are on the commercial list.

Sources suggest that the real delays occur where the parties and their legal advisers drag matters out.

The judges have, meanwhile, moved to crack down on a growing trend where non-qualified lawyers have been acting as advisers to lay litigants.

The High Court has moved to halt the high number of frivolous and vexatious cases which have been clogging up the system. Individuals have been setting themselves up as advisers, charging for this service, some with anti-bank agendas, it is claimed.

Clearly, other moves are required if the country is to move back up the legal competitiveness league table.

The routine management of cases carried out in the Commercial Court should be extended more widely, starting with the High Court.

New rules on case management contained in recent statutory instruments should be enforced, and tough sanctions should be applied to those who don’t comply with court directions.

The stick of the award of costs should arguably be applied more rigorously in the case of litigants who fail to meet standards of disclosure and basic honesty or engage in time-wasting. Greater scope should be provided for class actions.

Judges, these days, operate more as teams, less as standalone entities.

However, the training of judges could be improved.

Judicial incompetence remains a thorny issue, given the paramount consideration of judicial independence. However, better support for those making the transition from private legal practice would surely not go amiss.

Transport Minister Shane Ross has pushed to the forefront the issue of judicial selection, seeking a reduction in politicisation and a greater role for members of the public.

It would be a mistake to ‘throw the baby out with the bath water’. Those who have often quietly earned the respect of their professional peers usually work out best on the Bench.

Selection by some legal version of the Great Bake Off has little to recommend it. We all know people who are brilliant at making pitches in interviews who turn out to be pretty lacklustre or restless once they have secured the job.


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