Chief Justice wants way paved for specialist courts

Fri, Jun 29, 2012, 01:00

THE CONSTITUTION should be amended to enable the Oireachtas to establish specialist courts to deal with family and environmental law, along with a court of appeal that could hear appeals from the High Court, the Chief Justice has suggested.

Mrs Justice Susan Denham was delivering the opening address at a conference on the 75th anniversary of the Irish Constitution in the Royal Irish Academy yesterday.

With such a general amendment the Oireachtas could then establish, as it saw fit, specialist courts to deal with environmental and planning matters and family law, she said.

She said an appeal from the High Court is now likely to take almost 3½ years to be heard by the Supreme Court. In addition to the usual appeals, appeals of case-management directions of the Commercial Court in some of the very complex and lengthy cases there are now being made to the Supreme Court, she said.

She pointed out that a working group on a court of appeal had recommended that this be remedied by the establishment of a court of appeal between the High Court and Supreme Court, dealing with both criminal and civil matters, leaving the Supreme Court to deal with constitutional matters and issues of exceptional importance, and this was a commitment in the programme for government.

However, this should be viewed in a wider context, she said. “The drafters of the Constitution could never have anticipated the growth in the volume of litigation, its complexity and diversity, throughout the legal system. Litigation reflects the radical changes in society which have occurred in Ireland in the last 75 years, especially in the last 25 years. The court structure required in 2012 is different to that of 1937.”

She suggested that, rather than a specific amendment for a specific court, the people could be asked: “Do you approve that the Oireachtas be given the power to establish additional courts, including courts of superior jurisdiction, for the administration of the laws of Ireland?”

This could include a specialist family court, where issues arising in family law cases could be addressed in a holistic manner, including access to mediation and other forms of support, she said, such as existed in other jurisdictions, for example Australia.

At present, family law cases are dealt with by the District and Circuit Courts for the most part, with the right of appeal to the High Court. Outside Dublin they are heard in the regular Circuit and District courts on special days. A pilot project in the Dolphin House District Court in Dublin, where mediation and counselling are available on site, showed the beginning of a holistic family court system, she said.

Environmental law is also a complex and challenging area, Mrs Justice Denham said. In jurisdictions such as New South Wales in Australia there were special environmental courts where judges sat with technical assessors ruling on environmental, development, building and planning disputes, she said..

She pointed out that the Irish Constitution came into being with a guarantee of legally enforceable fundamental rights, imposing on the State the obligation to guarantee and defend those rights, at a time “an increasing sense of despair” descended across continental Europe.

It clearly recognised the supreme authority of the people and not the dominance of the State over its citizens.

She paid tribute to the five main drafters of the Constitution: John Hearne, Philip O’Donoghue, Michael McDunphy, Stephen Anselm Roche and Maurice Moynihan, who advised Eamon de Valera.