Fears for Commercial court as historic court shake-up on the way 

The new Civil Court of Appeal, which should be up and running by October, will free up the Supreme Court, writes Kyran Fitzgerald

Last week, six senior figures were appointed from the High Court to the new Civil Court of Appeal which will get up and running in October.

They include the current head of the Commercial Court, Mr Justice Peter Kelly and his long-time colleague on this court, Ms Justice Mary Finlay Geoghegan.

The new civil appellate court will operate alongside the Court of Criminal Appeal which has functioned successfully for many years.

While the move is seen as easing the growing pressure on the Supreme Court, concern is being expressed about possible impact of the loss of experienced people from the High Court bench and the impact of such a loss, in particular, on the Commercial Court, now generally regarded as a great success story, with deep reforms in the way business is carried out.

Judge Peter Kelly has, it seems, run the place like a Swiss station master and it is generally felt that he will be a hard act to follow. The judge’s disdain for what he views as sloppy preparatory work is only matched by a sharp dislike for delaying tactics.

Britain has had a Court of Appeal dealing with civil matters since 1875. For the Republic, however, the establishment of such a court represents something of a step into the unknown. This is a much smaller country and some may question the establishment of yet another judicial layer in a time of general austerity.

Far from escaping retrenchment, the justice system has been hit hard by cutbacks.

Courthouses have been shutting across the land and the axe is about to fall on the capital’s citadels of justice.

The Law society is currently up in arms over the proposal that all traffic offences in Greater Dublin be dealt with at a single location in Blanchardstown, a suburb on the north western edge of the city. Meanwhile, lawyers employed by the State — many on modest incomes — have suffered heavy cuts in their fees while delays in payments remain a running sore.

The net cost of running the court service has fallen from €100m in 2008 to under €58m in 2013. The Chief Justice, Susan Denham, at the release of the annual report of the Courts Service, last week maintained that “Ireland’s courts are among the least costly in all the countries of the Council of Europe.”

In truth, what we now have is a two or three track legal economy, with many struggling practices and practitioners alongside pockets of considerable affluence concentrated on the larger firms with significant commercial and financial practices.

The courts and judiciary have a much larger workload arising, in particular, from the financial collapse.

According to the Chief Justice, on the criminal side, the District Court made 348,000 orders during the year, sending over 13,000 cases to higher courts for trial.On the civil side, last year, over 242,000 new cases were filed.

In 2013, in fact, there were signs of a return to the lower volumes of activity of old. However, dealing with all the flotsam and jetsam from the financial tornado could take many years.

One ongoing problem is that too many appeals have been finding their way to the Supreme Court resulting in a delay of up to four years.

It is argued that the establishment of the new appeals court should free the country’s top judges up to be more creative, concentrating on issues of fundamental importance to the country.

Rulings issued by the US and Irish Supreme Courts back in the Sixties are viewed as a kind of golden age, one that could now be re-lived, or so the theory goes. We shall see.

Certainly, already, reforms in the way our courts and judges go about their business have been pretty fundamental.

Court offices have been rationalised while much greater attention is paid to judicial training. Most of the changes date back to a commission on the courts presided over by then Judge Denham in the 1990s.

It is appropriate that Ms Denham should be in place as Chief Justice in time for the rollout of this key reform.

And the likely consequences? At a stroke all cases pending before the Supreme Court will be transferred to be heard by the new Court of Appeal, says one leading counsel, who also predicts that there will now be a lot more case management across the civil court system as a whole. Indeed, some of the key reforms at the Commercial Court have begun to be adopted in civil cases beyond the Court. These include the emphasis on pre-trial submissions, a reluctance to grant adjournments and the use of meetings involving experts in an effort to establish points of agreement and identify key areas of disagreement and difficulty. The key goal is that the time spent by the parties in court where expenses really get racked up is steadily reduced.

Anyone wanting to be heard by the Supreme Court will now have to seek leave to appeal, with such permission being granted only in exceptional circumstances.

The Court needs to keep going smoothly. Our legal system has emerged as an important selling point in the eyes of overseas investors. Our businesses require the sort of speedy highway to justice that the Commercial Court has, in most cases, managed to provide.

That highway has, in the words of Law Society DG, Ken Murphy, sometimes tapered off into a boreen at the end of the process.

The new Court of Appeal should extend the highway all the way — if things go to plan.


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