My Lord, it’s finally time to slay the sacred cow of the judiciary

ALONG with the Presidential election, a referendum will be held on the right of the Dáil to determine judicial pay levels. Despite private howls of protest and refusal to voluntarily accept the pension levy by some judges, it is certain that a massive majority of the electorate will endorse this limitation on the independence of the judiciary.

We should use the context of that debate to fundamentally review accountability, effectiveness and efficiency of our court system and judges.

A decade of procrastination has seen successive governments grapple with two age old legal Latin idioms (as translated): “You cannot be a judge in your own cause” and “Who guards the guards?” To date, we have relied on integrity of the judiciary to be sufficient supervision of themselves. Chief Justice Mr John Murray retires this week. Apparently, there is a two-year shortfall of service on his entitlement to a full pension, even though he’s a former Attorney General. So he is due to stay on the Supreme Court bench while relinquishing the top job. Serious questions have to be raised about his performance as ultimate CEO of Irish magistrates. He has to take overall responsibility for the pyramid structure of our courts’ system.

This ascends from the base line of our network of district courts, circuit courts, High Court and Supreme Court. Each court has its own President to preside over it. The separate Courts’ Service is a quango, grown out of the Department of Justice. Its role merely covers administration, employment, financial transparency and record keeping. It does not determine or exercise control over key issues of waiting lists, volumes of sittings or case management.

Sporadic controversies have arisen over standards of personal judicial conduct. Most celebrated of these? Supreme Court Judge O’Flaherty and High Court Judge Cyril Kelly had to resign. Circuit Court Judge Curtin initially resisted resignation, having been threatened with Oireachtas impeachment. These rows raised the spectre of expedient procedures to terminate judicial careers. Don’t forget, that all appointments of judges are political, being subject to cabinet approval. While Fianna Fáil governments have appointed known Fine Gael supporters, it has always been and remains a politicised process — without external independent scrutiny or all-party Oireachtas committee input.

From a litigant’s perspective, biggest failing of our courts’ system is the length of time it takes to administer justice. At present, Supreme Court appeals take between 36 and 38 months once the case gets onto the waiting list. This delay accumulates only after a lengthy High Court process, which can typically take four years — “Justice delayed is justice denied”. This compares unfavourably with UK and US equivalent timelines. Urgent reform is required to streamline the apex of this pillar of society. Such delays involving state, infrastructural and corporate cases have negative effects on investment and jobs.

Over recent years, the Commercial Court, within the High Court, has transformed itself under the leadership of Justice Peter Kelly. Once criteria of eligibility are met, a fast track has been established. Speedier dispute resolution mechanisms have been achieved by applying time limits to plaintiffs and defendants. Most recent high-profile example being Kelly’s impatience with Paul Appelby’s (Office of Director of Corporate Enforcement) tardiness in pursuing alleged wrongdoing within Anglo Irish Bank. Others, particularly the Supreme Court can and should apply these disciplines and timelines.

Supreme Court output is exceptionally limited. Holidays? Judges take an extensive summer recess (all of August and September), Christmas and Easter holiday and a Whit break. These can be truncated. Sitting times are 11am to 1pm and 2.15pm to 4pm. It’s reasonable to start at 10am and finish at 5.30pm — increasing court time by a third. Why not consider Saturday sittings to clear the backlog? Judges can give a clear signal that they are doing their bit at a critical time. The backlog of cases for Supreme Court appeals rarely, if ever, is stress tested. The Commercial Court regularly clears out deadwood cases by insisting parties present the case within a specified time or have it dismissed. This means cases simply stagnant, without any real momentum, cannot remain dormant. The same “call over” procedure should be introduced for the top legal tier. Litigants must stand and deliver or get lost.

A lot of European courts appoint a single judge to act as an advocate general. His or her report of the case greatly expedites decision making. Our Chief Justice has declined to introduce a similar focus here. The waiting list of thousands on Supreme Court appeal contains numerous actions of which the core or net issue in all of them are broadly similar. This may pertain to, for example, several hundred people who invested in a financial product which collapses in value, raising the issue of inadequate or negligent professional advice. These would have been pursued separately in the High Court, with all of them appealed. The judicial hierarchy needs to actively identify “test cases“, which when heard will give rise to definition and certainty about the legal principles involved. This would apply to all similar cases. Such a priority approach would clear the waiting list and eliminate unnecessary delays.

THE Supreme Court sits with a panel of between three and seven judges hearing an individual case. Regularly the time and capacity of five or seven judges is taken up with one case, where each judge gives a written judgment. Allegedly, an informal post-hearing discussion between them can determine the outcome. They could limit the number of judges to three. Also, more verdicts can be given on an extempore (immediate) basis rather than delayed lengthy reserve judgements. Appeal criteria adherence can be tightened so that Books of Appeal must be presented in an acceptable finalised form, within a given defined deadline. These minor adjustments would yield significant results. Exorbitant legal costs incentivise litigants to represent themselves in up to 20% of all cases. Their ignorance extends beyond inferiority complexes in encountering the world of wigs and gowns. These relics must be made redundant, My Lord.

Alan Shatter is intimately aware of failings and antiquated proceedings of our judicial infrastructure, as a long standing practicing solicitor in court. He is uniquely positioned to procure reform. He knows false bunkum between requirements of judicial independence versus undue respect and deference. The Judicial Council Bill lies on his desk. This is Murray’s and the judiciary’s combined response to independent oversight of judges. It proposes a Judicial Council comprised of all members of the judiciary, with a board, made up entirely of judges. A Judicial Conduct Committee proposes only three lay persons. The cabinet should embrace radical reform that would scrap self-regulation.

Medical supervisory bodies and other professional oversight organisations have modernised with external involvement and extra transparency. The next Chief Justice must become an accessible, high-profile human face of the Irish Judiciary. The outdated legacy of excessive delay, extraordinary inefficiency can no longer be tolerated. Judicial pay is but a minor feature of a much bigger story. The body politic and churches have had to face transformation. It’s time to slay this sacred cow.