Important change to legal system

The Court of Appeal has now been formally established, heralding the most significant revision of Ireland’s judicial system in the past 50 years.

Chief Justice Susan Denham has described it as the biggest development in the structure of our courts since independence. While that may be overstating things, it is an important change, nonetheless. Prior to the establishment of the Court of Appeal — unlike most other EU states — the only court for hearing appeals from the High Court was the Supreme Court.

The new institution is designed to ease the backlog of more than 500 cases at the Supreme Court and allow that court to focus on cases of major legal significance. In recent years the backlog in the Supreme Court has risen to four years, a practical example of the legal maxim ‘justice delayed is justice denied’.

The so-called ‘law’s delay’ is one thing but the leisurely pace of the introduction of the new court is a mystery. Although a referendum permitting the court’s creation was passed a year ago, it took until July for the Court of Appeal Act 2014 to be introduced and signed into law. It has taken a further three months for members of the new court to be named yet, surely, that process could have begun after the referendum was passed. It also raises the question of why a referendum was needed in the first place. After all, the Court of Criminal Appeal which has a similar function in criminal matters has been operating for decades. Its constitutionality has never been substantially challenged and its jurisdiction has always been respected by the Supreme Court.

While the appeals court has been formally set up, it is not expected to hear substantive cases until well into the new year. Building work on its courtroom and judges’ chambers is ongoing at the Four Courts in Dublin and it could be another six months before the court is fully functioning. That is little short of scandalous, considering the costs involved.

Under the changed regime, only cases of general public importance will be submitted to the Supreme Court, either directly or by way of a further appeal from the new court. All other cases will be heard first by the Court of Appeal.

So much for the theory, but it is the practical operation of both courts that will be of critical importance to not only clearing the backlog of cases but to ensuring more efficient operation of our judicial system. If the Court of Appeal simply mirrors the procedural practices of the Supreme Court we could end with that 500-case backlog being shifted from one court to another at great expense to the taxpayer.

Up to now, the Supreme Court has routinely allowed hours — occasionally days — of oral hearing while the practice in most other jurisdictions is to rely primarily on paper documents and written submissions. As well as that, each judge writes a separate judgement, an outmoded practice. Surely a single judgement should suffice, albeit with an indication of which judges — if any — dissent from the majority view.

Let us hope that such judicial verbosity will not take hold in the new Court of Appeal.