Justine McCarthy: Judge Deirdre Murphy’s warning on our broken legal system must not be ignored

When Nuala O’Faolain was dying, she told Marian Finucane in one of the most riveting interviews ever broadcast by RTÉ that she dreaded all the knowledge she had accumulated during her lifetime dying with her. Her intimacy with classical music and literature, the understanding of life and human relationships the journalist and author had gleaned, was all going to vanish in a puff with her final breath; all come to naught, she grieved.

Something similar, though less heart-rending, occurs when senior judges retire. After careers spent microscopically inspecting humankind and adjudicating on its conflicts, they climb down from the bench one last time, pack their briefcases with the unique insights they have acquired, and head for the horizon. Traditionally, they maintain a dignified public silence forever after. All that wisdom is buried by the spade of propriety.

So, when one of their number decides to break ranks and share what she has learned from her judicial experience, the rest of us ought to pay heed. In a candid and quite radical interview on Monday with Mary Carolan, this newspaper’s legal affairs correspondent, retired High Court judge Deirdre Murphy urged the State to stop using the law courts to grind down those of its citizens whom it has badly served. To paraphrase, she said the State’s job is to help the people, not hound them all the way to the steps of the courthouse before grudgingly accepting its liability.

“If it’s wrong, it’s wrong,” she said. “If you take the line that this is going to cost a fortune, then you should have done it right in the first place and you wouldn’t have exposed the State to paying a fortune. When you know there is a problem, deal with it. Don’t let it fester, and then say the State cannot afford to pay for a problem it has actually created.”

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The anecdote illustrates something akin to a cosy cartel operating in plain sight, predicated on a caste system

She called for the adoption of a policy known as the model litigant obligation, whereby the State effectively acts as a disinterested litigant obliged to uphold everybody’s rights. On Wednesday, a set of non-binding principles for State litigation was published, echoing this model, following Cabinet approval.

Murphy diagnosed that Ireland’s litigation system is “broken” and warned that the public’s access to justice is shrinking evermore because of the dominance of “a small number of huge” law firms. Civil servants, she observed, can be less cost-conscious when agreeing to pay the public’s money than if they were spending their own funds.

In a startling disclosure – one which some of her erstwhile colleagues at the bar may consider a betrayal of a professional secret – Judge Murphy recalled being told when she was a senior counsel being offered a brief by one of the major solicitors’ firms that she did not charge a handsome enough fee. “The bigger firms want to brief somebody who will charge a fortune so that they can justify charging a fortune,” she said. Considering that legal costs are customarily calculated on the basis that the solicitors’ bill amounts, roughly, to two-and-a-half times counsels’ fees, Murphy’s assertion has an ear-splitting ring of plausibility, and a disgusting stench of scandal.

What her anecdote illustrates is something akin to a cosy cartel operating in plain sight, predicated on a caste system. It is the same big law firms that keep getting the bulk of State work and keep briefing their favourite counsel. Massively lucrative litigation is jealously kept within this club while the numerous small firms around the country seldom get a look in. As any consumer watchdog will attest, this blatant disregard for competition is bad for those who must pay the bill.

“We’re talking about the people’s money,” Murphy said. “A fair and equitable distribution of State work will make the system better because work will be distributed among those capable of doing it and not just the favourites of particular people.”

Ireland is an exceptionally litigious country with prohibitive costs that have turned the civil law courts into the domain of the State and wealthy individuals, at the expense of most citizens

When it comes to the law, the State’s foremost obligation is to provide equal access to the dispensary of justice. But, by maintaining a club culture that fattens the big firms’ coffers, it is colluding in a culture of exorbitant costs that prohibit many citizens from ever darkening a courthouse door in pursuit of fairness. As gold-star graduates of the Law Library that serves as the judiciary’s nursery, senior judges know this. Frank Clarke, the last chief justice, publicly denounced Ireland’s astronomical legal costs. His remarks were met with uncharacteristic silence from the oratorical bar.

On Tuesday, another retired High Court judge, Bernard Barton, warned the Joint Oireachtas Justice Committee in Leinster House that the proposed abolition of juries in defamation trials would have “very serious consequences” for citizens’ legal rights. That is arguable in a jurisdiction where almost all other civil law cases are heard by judges in the absence of juries, but what is inarguable is that there are many more immediate obstacles to people gaining access to justice. Top of the list is the expense.

As Judge Murphy tells it, this is ratcheted up by an attitude within the Civil Service that complaints are often best ignored, until they can no longer be ignored. Answer that letter, she suggests. Take that phone call. If State respondents, such as prison governors, replied substantively to the first letter of complaint, she said, many trips made to the courts could have been avoided.

“If you just send a letter and it’s all deny, deny, deny, they bring a judicial review.”

What she says makes sense but, in her experience, it is not common. Ireland is an exceptionally litigious country with prohibitive costs that have turned the civil law courts into the domain of the State and wealthy individuals, at the expense of most citizens.

Murphy said at the end of her interview that she wants to “be of more service”. A role should be created for her to oversee the implementation of the State’s new litigation principles. To allow the insights she has gained as a judge – and which she has had the courage to share with us – to wither and die would be a tragic loss to this country.

[ Justice Deirdre Murphy on a broken legal system, ‘corporatisation’ and too many barristers ]