Statement Of the Chief Justice for the New Legal Year 2017
Colleagues and friends,
When there is a public perception of problems in the Courts the situation may fall into one of three categories. First, there may be a real issue which the Judiciary and the Courts needs to address. Action may be needed. Second, there may be a problem which at least in part needs outside action such as legislation or resources. These we need to identify and persuade. Third, there may be good reasons why things are as they are, but those reasons may not be fully understood. But on this we cannot complain if we do not explain.
As the commencement of the new legal year approached it seemed to me that it might be useful to set out what I see as the most important priorities for the Judiciary and the Courts for the next year, bearing in mind that which is in our control or power to influence. In doing so I am mindful of a comment made to me some time ago by a senior civil servant who suggested that one particular Minister had run into difficulty by attempting to prioritise too much. I am also mindful of a comment frequently made by the late Mr. Justice Kevin Lynch who suggested that in attempting to emphasise everything, we in fact emphasise nothing.
The fact that some things are prioritised does not, of course, mean that everything else is ignored. Indeed, in the words of Harold MacMillan, “events” will almost invariably occur. But all that being said, there seems to me to be value in identifying the main priorities.
There are, of course, two major pieces of legislation in train which will have a significant effect on the judiciary. The Judicial Appointments Commission Bill will undoubtedly bring about significant reform in the way in which judges are appointed. The Judicial Council Bill will, for the first time, provide a proper framework for judicial training and ethics. The judiciary has long supported the principle of both of those measures recognising the need for reform of the appointments process and the establishment of a Judicial Council. However both measures are ones where truly the devil is in the detail. The position of the judiciary in relation to aspects of that detail is well known. I do not think that anything useful would be achieved at this stage in revisiting some of the issues which have arisen. Suffice it to say that the judiciary will continue to engage in an appropriate fashion as the legislation passes through the Oireachtas.
I would only add one further observation. A minority of commentators seemed to suggest that engagement by the judiciary on such matters was inappropriate. I know of no jurisdiction in the world where it is not considered reasonable and appropriate for judges to make their views known in an appropriate way in relation to proposed legislation which actually affects the judiciary itself. Obviously this legislation has the potential to affect the judiciary in a very significant way and it is, in my view, wholly appropriate that judges make their views known while recognising, of course, that legislation is ultimately a matter for the Oireachtas. Against that background I propose to concentrate on issues over which the judiciary have at least some direct control although not all of the questions which need to be addressed can be dealt with without the involvement of others.
The main job of Judges is, of course, to decide the cases which come before them. But there is little point in having a good court system, likely to produce fair results in accordance with law, if a great many people find it difficult or even impossible to access that system for practical reasons. A high priority must, therefore in my view, be accorded to questions relating to practical access to justice. I emphasise the practical because there are few formal legal barriers to access to justice in the Irish legal system. But it has increasingly become the case that many types of litigation are moving beyond the resources of all but a few. There were, of course, systems which worked well in the past, such as the preparedness of the practising professions to take on cases on the understanding that they will not be paid if they do not win and secure an order for costs. While those systems still provide an effective means of litigating in certain areas, such as routine personal injury cases and some forms of judicial review, they can no longer be considered as sufficient to provide anything like the full answer.
Not all of the measures which may be needed to improve access to justice are within the control of the judiciary. But some are. In particular I very much welcome the establishment of a Committee under the Chairmanship of the President of the High Court, Peter Kelly, to engage in a thorough review of civil procedure. There can be little doubt but that at least some aspects of our civil procedural model are beyond their sell by dates. Furthermore many individual solutions which were put in place to deal with particular problems in the past may have worked in the narrow sense of easing the identified problem, but have led to a somewhat unwieldy and sometimes overly complex system.
I have spoken before of the fact that the current rules under which our courts operate bear a very close resemblance to the rules which were put in place immediately after the amalgamation of the various courts which existed in Ireland in the 1870s which led to the creation of a then new High Court. Of course the fact that rules are somewhat venerable does not mean that they are necessarily no longer fit for purpose, but the experience of new experiments such as the commercial court has demonstrated that it often requires a radical reappraisal to identify better ways of doing things. I can assure President Kelly and his Committee of my full support for their endeavours and I am sure I speak for all judicial colleagues in saying that we recognise the need for a modern fit for purpose civil procedure.
But there is a link between some of the questions which Mr. Justice Kelly and his colleagues will undoubtedly face and the second major priority which I wish to address. I have again commented on a number of recent occasions on what is sometimes an unnoticed but important difference between the court systems which exist in common law countries, which derive their legal system to a greater or lesser extent from an English model, and the civil law systems prevalent in continental Europe.
There is a significant shifting of the burden of carrying litigation in common law countries onto the parties and away from the State. In civil law systems the courts themselves, that is judges and judicial staff, carry a much greater burden of ascertaining the facts and researching the law. But that comes at a cost in terms of the much greater numbers of personnel who are required to staff the courts in those jurisdictions. While it is not easy to address this question with any great precision, the numbers and cost are so glaringly different that it can certainly be concluded that the tax payer contributes much less to the running of a court system in a common law country than does a counterpart tax payer in a civil law jurisdiction. Indeed in Ireland the cost to the tax payer is further reduced by the fact that court users contribute a significant portion of the total cost of running the courts in the form of court fees. For example last year court fees charged on civil documents lodged in court came to €44 m. or 58% of total current spending. This is a significant increase on the position a decade ago. One rough, but by no means unrealistic, calculation suggests that the additional cost to the Irish tax payer of running a civil law type system might not be too far short of half a billion euro a year. With all of the current demands on government expenditure it would be fanciful to expect that the Irish courts are ever likely to receive that level of additional funding.
But apart altogether from questions such as legal aid, there can be little doubt that improvements in the court process designed to make access to justice both easier and more affordable are unlikely to come without some cost. Indeed I suspect that one of the issues which the Review Committee will need to take into account is the extent to which it may be realistic to expect that additional backup resources (and possibly additional judges) may be forthcoming. I think all who worked in the commercial court came to realise that a significant part of the reason for its success in being able to provide very quick (if not necessarily much cheaper) access to judicial decisions was the fact that significant resources were deployed. But the same level of resources cannot be made available to every part of the court system without significantly increasing the overall resources themselves.
In drawing attention to the need for additional resources I would like to acknowledge two important facts. My predecessor, Chief Justice Denham, in remarks which she made on her last day of sitting, emphasised the welcome allocation over the last number of years of significant government funds designed to improve the physical resources of the courts in the shape of new or remodelled courthouses with up to date modern facilities geared towards the way in which litigation has to be conducted today, rather than the way in which it might have been in Victorian times.
In that context she also welcomed the proposed Hammond Lane Project. We have, just across Church Street, an invaluable publicly owned site at the heart of the legal quarter. It needs to be exploited to the maximum advantage consistent with proper planning. Anything less would, in my view, be a waste of a valuable public resource. I hope to continue discussions with the relevant Departments with a view to bringing this vital project to fruition.
However, Chief Justice Denham did emphasise that the resources deployed to back up the judiciary have not been able to increase at anything like the same pace as those deployed in building projects.
I should not let this opportunity pass without paying tribute to Susan Denham. From outside the office I feared, and from inside the office I now know, that she will be a hard act to follow.
Next I would acknowledge that putting additional resources into existing systems which may not be fully fit for purpose is not a sensible way to use public funds. Most major system changes need both additional resources and better ways of deploying whatever may become available. That is why I link the procedural reform which will now be considered by President Kelly’s Committee with the issue of resources. I would be very surprised if there were not better ways of doing things which that Committee identifies, which could only be put in place if the necessary resources were to be made available. The extent to which the Committee will be able to recommend measures which would radically improve access to justice seems to me to be at least in material part dependent on the extent to which the Committee may be assured that adequate resources will be forthcoming. The precise way in which those resources should be deployed is, of course, a matter to be considered by the Committee. But it is worth noting, for example, that our colleagues in Northern Ireland, who operate a very similar legal system to our own, have six persons of the rank of Master servicing a High Court of ten judges while we, in the Republic, have one Master supplemented by a small number of part-time Deputy Masters, but forty High Court judges. In the United States Federal System there are a group of magistrate judges who assist so called Article III judges.
Furthermore the extent to which court hearing times can be cut down can itself be dependent on the amount of back-up research facilities which judges have available to them. Comparisons are sometimes made between the length of oral argument in cases in the United States compared with Ireland. But where each senior judge in the US Federal System has four judicial clerks, who are all first class recent graduates, it is not hard to see how a great deal of work can go into a case in advance thus allowing for a much more focused oral procedure.
The existing system of judicial researchers and assistants has run into considerable problems with significant difficulties in recruitment of suitable personnel and importantly their retention. However, a radical overhaul of the system has been approved by the Courts Service Board as a result of a report by my colleague Mr. Justice Charleton. I would hope by next year to be able to report significant progress in this area.
On the question of resources generally it is, in simple terms, my second priority is to engage with government with a view, hopefully, to persuading those concerned that there is a need for a significant increase in the back-up facilities available to judges but in doing so to make it clear that I do not see increased back-up as operating in isolation from the need for better use of resources as part of an integrated plan.
In the overall context of resources I hope to continue to explore means whereby the case for resources for the Courts, which are after all the third arm of Government established by the Constitution, can be put more directly to the final decision makers. We cannot expect to write our own cheque but we can seek the most effective way to have our case heard.
That leads to the third and fourth priorities which in many ways follow on from what I have just being saying. The Chief Justice is, of course, first and foremost the President of the Supreme Court. When the Court of Appeal was established in 2014, a considerable amount of work went into formulating new procedures to streamline the process by which appeals were to be conducted in the Supreme Court. Indeed, in parallel, the Court of Appeal put in place its own new procedures. But it was always understood and accepted by the Supreme Court that it would be necessary to monitor those new procedures to see if they worked as intended and to identify any problems. We now have had almost three years experience of operating the new model and the time has come for a review. I am happy to report that at a recent meeting the Court established a small group consisting of myself, Mr. Justice O’Donnell and Ms. Justice O’Malley, to conduct, in conjunction with the registrar of the Supreme Court, a thorough review of the new procedures and make recommendations for any changes. When we have clarified our own thoughts we intend to consult with the practising professions, but we would hope to conclude the process in time that any changes can be implemented with effect from 1st January next. The completion and implementation of this review represents a third important priority.
Next it is worth touching on the use of information technology in the courts. There is undoubtedly great potential for exploiting I.T. in making much more effective use of court personnel and making life easier for litigants who have interaction with the courts. It does have to be said that the IT section of the Courts Service suffered a particularly large hit during the great recession. It has been said elsewhere that one of the curious features of the cut backs was the fact that the Courts Service suffered a significantly larger reduction than the public service generally or the justice sector as a whole. Why that was so remains something of a mystery. Happily there have been measures in the last few years which somewhat redress that unfortunate development.
But where a body such as the Courts Service has to operate on significantly reduced financial resources, it is often faced with the fact that some areas just cannot be cut. Court sittings had to go ahead. Salaries (even sometimes reduced) had to be paid. In such circumstances it is unfortunate, but inevitable, that areas which can be cut will be cut. IT suffered particularly harshly in that way. All judges know that we operated for a time with software which was so out of date that it was not supported by the service providers.
However we are now slowly returning to a situation where it will be possible to plan for the greater deployment of IT in the years to come. There are already some limited areas of the court process which are conducted either exclusively or very substantially online. Those areas will increase. Legislative measures are under consideration which will facilitate the filing of a form of sworn document by online means. However on taking office it seemed to me that it was important that the Supreme Court showed some leadership in this regard. With that in mind, I and my colleagues have agreed to a pilot project which it is hoped will lead to a situation where all applications for leave to appeal to the Supreme Court will be capable of being made and considered online. A working group consisting of judicial, administrative and IT personnel has been established to bring this project forward as a matter of some urgency. It will, however, I understand, be likely to be about one year before the project can reasonably be expected to go live. However I would see this as only a first step. The leave to appeal stage seemed like a fairly manageable area which could be brought online within a reasonable period of time. But if it is seen to work, I can see no reason why all further stages of the appellate process could not be facilitated by online filing and, indeed, the use of IT to support oral hearings. In that latter regard it is worth mentioning that there was a successful experiment conducted in the recent past where an appeal was conducted entirely on the basis of all legal personnel and judges using only tablets. It is hoped to continue with the experimental use of paperless hearings.
If I could be permitted a brief personal diversion. I have read quite a number of public comments in recent times which depict the Judiciary as being close to computer illiterate. That is not the system I know. A very substantial part of the internal business of the Courts is now conducted online. Much of the work of the Supreme Court involves email with, for example, suggested changes to draft judgments being made with tracked changes.
However, I do not think it likely that there will be a sudden move which will have the effect of turning out court system online overnight. Development is likely to be characterised by initial and gradual moves online in particular areas which lend themselves to the adoption of online procedures without too much complication.
However, last but not least, I would wish to emphasise as a final priority the need to secure an increase in the number of judges for the Court of Appeal. I have been in discussion with President Sean Ryan on some short term measures which we have agreed can be put in place. These measures will have the effect of allowing the Supreme Court to assist with the current acute problem which the Court of Appeal faces, by facilitating cases which were transferred to the Court of Appeal being returned to the Supreme Court.
That being said there is no doubt that the long term solution requires more judges. There are a number of reasons for this. First, there are more appeals today to the Court of Appeal than there were to the Supreme Court under the previous regime. The criminal side of the work of the Court of Appeal is up to date. However, this achievement requires the allocation, typically, of four judges. The six remaining judges have to deal with an increased civil appeal burden. When one recalls that the Supreme Court in its former model had to deal with very few criminal matters (given the existence of the Court of Criminal Appeal) and still struggled with eight judges, it is not difficult to see why there is a problem.
The Court of Appeal put in place new and innovative procedures which do make the system more efficient. It is also abundantly clear that the workload of the individual judges of the Court of Appeal is, if anything, beyond what can reasonably be expected. While I will leave it to President Ryan to press the detailed case to the relevant authorities, I would like to emphasise here my complete commitment to supporting that case and also the commitment of my colleagues and I to assist in any exceptional interim short term measures which may be required. The Supreme Court itself, of course, is currently down to seven judges, one of whom is more or less full-time assigned to a tribunal, leaving an effective cohort of six. Leaving aside altogether issues concerning the method of judicial appointment there is an urgent need to address at least some aspects of the shortfall in numbers in the appellate courts as a matter of particular urgency.
It is also necessary to address the particular problems of our local courts and especially the District Court. Much recent legislation has increased the types and complexity of their case load. It is perhaps time for a thorough review of the resources needed for those Courts and, perhaps, the adoption of a practice of auditing new legislation for the resources implication on the Courts.
A final point on BREXIT. The Irish Supreme Court plays its role in many Europe wide judicial bodies which are frequently consulted by the Commission and by European legislators. It is always necessary to ensure that the common law position is understood to minimise the risk of unintended consequences. In the past we have, to an extent, been able to rely on the well resourced United Kingdom to take the lead. Post BREXIT Ireland will become the biggest common law jurisdiction and a much greater burden will fall on us to ensure that European measures proposed fit well into a common law system.
I should not conclude without mentioning a poignant anniversary which occurs this week. Twenty five years ago Mr. Justice Niall McCarthy and his wife Barbara were killed in a motor accident near Seville. Ireland thereby lost one of its greatest and most original judges. A fearless defender of what he saw to be the right answer to delivering justice in accordance with law. His example is one which we should all strive to follow.
Chief Justice, Mr Justice Frank Clarke