A new court of appeal would enhance access to justice
October 4th referendum will put court into Constitution
The purpose of the 33rd Amendment of the Constitution is to enable the Oireachtas to create a new court of appeal. This institutional reform is necessary to ensure our people have a courts system that is able to resolve appeals with reasonable speed.
The need for a court of appeal arises mainly from the on-going significant backlog of cases before the Supreme Court and the consequent long delays in appeals being dealt with by it.
Over 500 appeals await resolution. A person or company lodging an appeal with the court is unlikely to have their case resolved for 4½ years. And the number of appeals – up by more than 5 per cent this year – continues to increase significantly. Earlier this year, the Chief Justice announced her decision not to accept any new priority cases, given that there were already over 70 cases on the priority list.
The problem of justice delayed is not the fault of our judges. The judges have taken many initiatives to produce a more efficient case-management system. The institutional structure they have inherited is simply not adequate for dealing with the volume and complexity of today’s lawsuits.
The Supreme Court in Ireland, unlike other comparable common-law countries like the UK, the US, and New Zealand, is the court of final appeal in all cases. In those countries a supreme court mainly deals with cases involving substantial points of law or issues of major pubic importance. In Ireland, the Supreme Court is taken up with issues ranging from routine interlocutory orders to major constitutional issues, and everything in-between.
This institutional structure has produced a bottleneck in the appeals process owing to the growth in the volume and complexity of litigation.
On volume: Each high court judge who hears a case sits as the High Court. In 1968 there were seven high court judges and the Supreme Court heard appeals from them. In 2013 there are 36 High Court judges and a single Supreme Court capable of dividing into two panels. Thus the Supreme Court is hearing appeals from 36 High Courts.
On complexity: The courts have to handle appeals involving a wide range of legal issues.
Appeals raise questions about, for instance, statutory interpretation, constitutional law, administrative law, European Union law, commercial law and family law. The judges have to master boxes of information before an appeal comes to a hearing.
There is a Court of Criminal Appeal. It sits on an ad hoc basis, with a mix of Supreme Court and High Court judges. It lacks a clear constitutional basis. It also has a backlog of cases. The delay in dealing with appeals undermines the constitutional rule of law, imposes unnecessary costs on business, and blights our reputation. Justice delayed is justice denied.
First, this systemic flaw violates the right that everyone has under Article 6 of the European Convention on Human Rights to a fair and speedy hearing of their legal disputes. It causes misery to people enmeshed in family-law disputes or personal-injuries cases. Ireland has already had to pay compensation to individuals who have successfully taken cases to the European Court of Human Rights in relation to delay.
Second, it endangers the economy. The expectation that persons or companies will be able speedily to enforce their legal rights underpins all investment and commercial transactions. Justice delayed erodes this vital impersonal assurance.