Court procedures out of step with what public deserves

The right to legal representation is a fundamental right but, if the cost becomes such a factor as to discourage seeking redress, then those costs become a barrier to a fundamental right in a modern republic

Scales of Justice: The simple truth is that the litigation system in Ireland needs reform and the debate has to be started somewhere

Scales of Justice: The simple truth is that the litigation system in Ireland needs reform and the debate has to be started somewhere

Mon, Jun 30, 2014, 01:05

Carlsberg doesn’t do litigation in Ireland but if it did, let’s face it, there would be a courtroom that none of us recognises.

The judge might wear a gown and the lawyers would all be in suits. There would be a lawyer (perhaps two) and the client sitting together in front of the judge.

You could try explaining to the marketing people at Carlsberg that in Irish courts, the more senior barrister should sit in the bench in front of the junior barrister and all barristers wear black gowns (a tradition which allegedly can be traced back to the mourning of the death of Queen Mary in 1694, wife of William of Orange); that the more senior barrister should be heard before the more junior; that the solicitor sits with their back to the judge facing the barristers and that the client usually sits behind all of them towards the back of the court, unable speak to the barrister or solicitor.

You could try explaining the distinction between the solicitor and the barrister and the role of the independent referral bar – but I envisage problems – and there are problems. The litigation system in our Republic is out of step with what the public expects and deserves.

Many reasons are cited for the Legal Service Regulation Bill; an OECD report in 2001, the Competition Authority Report in 2006, the EU-IMF-ECB memorandum of understanding in 2010, the programme for government 2011 - 2016.

The simple truth is that the litigation system in Ireland needs reform and the debate has to be started somewhere. The right to legal representation is considered by all civilised countries to be a fundamental right. However, if the cost becomes such a factor as to discourage seeking redress, then those costs become a barrier to a fundamental right in a modern republic.

This entitlement is equally applicable to corporations as it is to individuals. Part 7 of the Legal Services Regulation Bill (sections 71 to 75) will pave the way for a great debate here about how the interests of the public and business are to be served by legal practitioners representing them before the courts.

Once the Bill is brought into law, a number of public consultations will be triggered, ultimately culminating in a report being made to the Minister and thereafter recommendations for new legal structures to be approved by government.

The new legal structures under consideration are aimed at modernising and varying the way legal services can be provided.

Of interest will be the anticipated consultation on merging the two professions. Currently we have what is called a split system whereby there is a distinction between the roles of a solicitor and barrister. In times past, where solicitors were generalists and barristers were specialists, it was easier to explain the distinction. An experienced litigator and barrister in complex commercial litigation will undertake different roles and so even if the solicitor were to advocate the case in court, it may still require two solicitors to run the case.

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