Just a few weeks after Mary Irvine retired as High Court president after a 44-year legal career, she already looks very relaxed. The formal legal garb has been replaced with an olive blazer, white T-shirt, stylish navy jeans and runners.
“I’m feeling great now that the alarm no longer goes off at 6.10am,” she says, smiling.
Irvine may have traded in her BMW 1200 GS motorbike for a Vespa 300 some years back, but that did not slow her down. During a hugely successful career, she was a high-earning barrister, specialising in medical negligence cases, the first woman president of the High Court and first person to hold four judicial offices here. She was a judge of the High Court, Court of Appeal and Supreme Court and held the office of High Court president, the third most senior judicial post, for two years.
For now, future plans are simple: holidays, sports, travel. “I have left the job that I have loved most in my entire career and that means that I’m not going to replace it with legal work of any type. I’m not in the market for any work, certainly not any time soon. I want to have more time for myself and my family,” she declares.
Her decision to retire surprised many, but Irvine had signalled she would go two to three years into the High Court presidency and wants to spend more time with her family and Brendan Hayes, her partner of the last 15 years. “There is a whole lot of stuff we want to do together while we still have the health and energy. We have loads of sporting interests to pursue and we love travelling.
“Give me a camper van with two bicycles in any part of the world and that is my idea of heaven. No deadlines and a home on your back. What could be better?” she tells The Irish Times.
Becoming emotional, she says: “I almost cried when one of my daughters rang me up recently to remind me that I would now be able to go with her to choose paint for her house. Only then did I realise that this was the type of thing that I could never do before retirement. I know I have missed out on a lot of personal stuff because of the demands of work over the years. The time has come to prioritise those most important to me — Brendan, my family and close friends.”
Born in December 1956, the youngest of John and Cecily Irvine’s three children, she was “very lucky” to be reared by “progressive” parents in a comfortable middle-class family in Clontarf. Neither her mother, a Dubliner, nor father, from Belfast, a former assistant RTÉ director general, had gone to third level education but they ensured their children got that and many other opportunities.
“They saw education as imperative and saw it in a very broad sense.” Irvine and her brothers were sent to speech and drama lessons early, all had to play music — Irvine took up the harp — and sports were valued, “to keep us out of trouble” and for fitness.
Irvine was a “madly enthusiastic” hockey player at Mount Anville secondary school and excelled at golf, winning Irish international caps. “My love of hockey and golf probably destroyed any chance I had of getting a good Leaving Cert but I feel that my participation in sport has stood to me all my life.”
All of my life, I have felt that I went back to work too soon and hadn’t enough time with my children, but I felt that was the price I had to pay to succeed professionally
She went to UCD to study law, not because she had any particular interest in law then, but “because I got the points to do it”. She was very impressed by a lecturer in criminology, Peter Shanley, later a High Court judge. “He made practice at the Bar seem very interesting and even glamorous. In no time at all, I decided that the Bar was for me.”
She did well in her exams, progressed to the King’s Inns and was called to the Bar in 1978 where she devilled with (was apprenticed to) the “charming” Michael Moriarty. They were married two years later, when Irvine was 23, and she was soon pregnant. Moriarty, 10 years her senior, had a successful practice. When their first child was born, Irvine says that she was “terrified” of losing work and resumed practice a week after a difficult birth. “I felt my solicitors would not think I was reliable as a barrister if I took time off work; I really wasn’t fit to be back.” She followed a similar pattern after the birth of their other two children. (The couple divorced many years ago.)
“All of my life, I have felt that I went back to work too soon and hadn’t enough time with my children, but I felt that was the price I had to pay to succeed professionally. My kids say, ‘That’s nonsense, Mum, you were always there for the things that mattered.’ But any time something went wrong, I wondered if things might have been different if I had I been there. They probably wouldn’t have been, but that doesn’t stop you feeling guilty.”
“In many ways, the Bar is a terribly hard profession. If you don’t make it, it’s a disaster; you end up leaving, probably owing a fair amount of money, having borrowed to cover your professional costs. If you’re highly successful, you end up working around the clock 24/7. There aren’t too many in the middle who just make a reasonable living and have a good quality of life.
“Unfortunately, a career at the Bar is not fertility-friendly. You can’t expect litigants who want to get their cases on or get advice to wait a number of months because their barrister is not available. So, regrettably, women who take significant time out following childbirth are going to lose work and fall behind their male contemporaries in terms of career advancement.”
“I was absolutely privileged, I had great childcare and parents who were there to help out.”
Apart from being “not fertility-friendly”, she says other problems with a Bar career include there are too many barristers, the “enormous” cost of childcare and a fee and payment structure which effectively means those with a financial cushion are best placed to survive the initial lean years.
Changing the fee structure and how barristers get paid could help women and people from diverse backgrounds succeed in the profession
The Bar cannot do much about the cost of childcare but could improve the situation by “trying to provide on-site creche facilities for women and men practising at the Bar”. The Bar Council could suspend mothers’ practice fees for any period they decided to take off, she adds.
Childcare costs are often viewed as the woman’s responsibility, she notes. “A baby is born to two people, so the costs of minding that baby should be seen as a cost to the family unit, in the same way as the cost of a mortgage or rent would.”
“Changing the fee structure and how barristers get paid could help women and people from diverse backgrounds succeed in the profession. While the situation is improving for women, presently only 16 per cent of senior counsel are women.”
The fee system is weighted in favour of the payment of a big brief fee at the end, “probably an overpayment”, with underpayment for the earlier work of drafting pleadings, motions and affidavits, for which barristers only get paid at the end of a case, Irvine says. “If the system operated on a pay-as-you-go basis, barristers would be assured of income in their early years instead of having to wait several years before they achieve a continuous income stream.”
She has seen many women leave the profession after four or five years for jobs offering greater security and perhaps a better quality of life. “That is absolutely fine for those women who want to change job to get a better work-life balance, but for those who want a career at Bar but can’t have it because of the fee structure, that is really quite unfair.”
Looking back on her career, Irvine says she never had a passion for the academic side of the law.
“Access to justice and the delivery of justice is what has always driven me. I want everyone to be able to access justice and get a just and prompt result. I have always seen it as my responsibility to try to make the system better for the litigant, who must always be kept front and central in the administration of justice.”
Irvine believes there were only about 20 women successfully practising at the Bar in 1978, when she started. “In some respects, it was easier for women to get work back then because there were fewer barristers overall and many of the women who came into practice at that time started to specialise in family law, due to newly enacted family law legislation in 1976.”
One of the biggest problems now is “far too many” barristers for the amount of work available, as was set out in the recent EY report on the profession, she says. The effect is it takes a long time to get started at the Bar and “the people who tend to survive are mostly those who have a bit of wealth behind them”.
The solution may be to find a way of limiting the numbers able to enter the profession each year, as they do in Northern Ireland, but she would not advocate an English-style chambers system, she says. “My understanding is that many women in England believe it is more difficult for them to get into chambers than it is for their male counterparts.”
In her view, the law library system is “a very good system if the Bar only took in the number of barristers the profession can support”.
“If there were fewer barristers, there would be a greater meritocracy and young barristers would start to earn more quickly. Those with less resources behind them would have a better chance of succeeding.”
As a junior counsel, Irvine developed a successful practice at the personal injuries Bar which she combined with some commercial work. When she became a senior counsel in 1996, she specialised in medical negligence litigation, representing mostly defendants. “I loved every minute of practice. I was always fascinated by everything to do with medicine.”
Doctors, nurses and midwives regularly work under terrible pressure and have to make instant decisions, which it is often easy to criticise later
Looking back, she says there are probably many medical practitioners who feel aggrieved that cases were settled where they were not negligent. “There are lots of reasons why cases are settled. Costs are often a big factor given that the plaintiff will usually not have the money to pay the defendant’s costs if it successfully defends the case.”
In relation to medical negligence litigation, “hindsight is marvellous,” she says. “Experts have the time to thoroughly inspect the medical records of an injured patient. It is easy for them to identify things that could have been done differently. But the real-life situation, particularly in obstetric units, is very different. Doctors, nurses and midwives regularly work under terrible pressure and have to make instant decisions, which it is often easy to criticise later. And, if a case is finely balanced, the defendant’s lawyers will almost always feel the plaintiff will win.”
In catastrophic injury cases, many parents believe a successful claim offers the only prospect of their child having a decent quality of life because the State’s supports for children with major medical problems are “very slim indeed”, she says.
“You can’t blame parents for wanting a better life for their children, I think I would do the same myself. If there were very good supports, there might be less cases.”
In 2007, Irvine was “thrilled” to be appointed to the High Court bench but says there was a price to pay. “It changes your relationship with everyone at the Bar. While you stay friends, there are things you can’t discuss because you have sworn to maintain your independence. So, by necessity, conversations can often feel a bit artificial. I really missed the support and camaraderie I had enjoyed at the Bar because as a High Court judge you’re on your own when hearing cases and making your decisions.”
When assigned three years later to run the personal injuries list, “I loved it, particularly as I got to hear so many medical negligence cases which I found both challenging and rewarding. The cases were an eye-opener into the lives of families coping with real tragedy.”
In 2014, she was promoted to the Court of Appeal. Asked about her reputation there for cutting general damages in personal injury awards, she firmly states: “We didn’t set out to cut damages. We wanted the judges hearing personal injuries cases to apply the existing law correctly. The law was always clear that damages had to be proportionate to the severity of the injury sustained. If a plaintiff with a lifelong catastrophic injury was only entitled to receive an award of, say, €450,000, then judges couldn’t be fairly awarding €60,000 for some modest injury or in some cases €40,000 for the pain associated with a soft tissue injury to the neck.”
Decisions in the Court of Appeal, she adds, are by three judges. Members of the court “were generally of the view that the established law which required that damages be proportionate to the seriousness of the injury was often not being applied in the lower courts when dealing with minor and modest injuries.”
“That had to be rectified,” she says. “If the law had been rigorously applied, there might not have been the impetus for the introduction of the legislation that has since led to the regulation of awards of damages in personal injuries cases.”
It was “unfortunate but predictable” that the Judicial Council Act of 2019 forced the judiciary to draft and introduce personal injury award guidelines.
The Act was “absolutely specific” about how the council’s Personal Injuries Guidelines Committee (PIGC) was to approach that task, including looking at the position in other countries with a similar standard of living.
It was “very clear” from the committee’s international research there was no problem with the level of general damages then being awarded here for serious injuries, she says. In fact, the guidelines increased the maximum award for catastrophic injuries to €550,000.
“Where we were way out of kilter with all other jurisdictions, with the exception of Northern Ireland, was in our awards for ‘modest or minor injuries’.”
Drafting the new guidelines was a “very hard” job, which took up a significant amount of time for the judges who were on the PIGC, chaired by Irvine.
While understanding the negative response from the Bar to the guidelines, Irvine was “quite hurt” by what some lawyers said about the work of the PIGC, including an accusation by one senior counsel against her of “treason”.
“How many of those who complain about the guidelines have actually read the committee’s report and the mandatory provisions of the 2019 Act?” she asks.
“Given that I made a good living doing personal injuries work myself, I can understand that there are many practitioners at the Bar who see me as a ‘poacher turned gamekeeper’. I’m sure there are many who feel it was easy for me, having become a judge, to move the goalposts for current practitioners but, as chair of the PIGC, my job was to ensure it applied the law as set out in the 2019 Act. The provisions were mandatory; we had little discretion in the manner in which we carried out our task.”
As a judge, “you are never going to do anything to deliberately damage the income of the legal profession”, she says. “Thankfully, a judge’s obligations, insofar as they concern the administration of justice, almost always coincide with the interests of the profession. But occasionally, as occurred with the 2019 Act, the statutory provisions required the introduction of guidelines that did not coincide with the interests of those practising in the area of personal injuries law. However, we as judges had to apply the law and prepare guidelines that would bring Ireland into relative alignment with other countries that enjoy a similar standard of living.
When compared to other countries, with the exception of Northern Ireland, our awards of damages for modest injuries were definitely far too high
“I certainly didn’t seek out the job of chairing the PIGC. It was a very difficult and unpleasant job to do, not least because everyone on the committee was well aware of the effect that any reduction in the level of awards of general damages would have on the income of both branches of the profession.”
From the outset, she knew that compliance with the process provided for in the 2019 Act “would lead to significant criticism”.
“When compared to other countries, with the exception of Northern Ireland, our awards of damages for modest injuries were definitely far too high,” she says. “Cases concerning modest injuries should be heard by the Circuit Court. I know that I benefited from the pre-guidelines system, but that doesn’t mean that the system was right, apart from the fact that it was a very expensive way of hearing cases concerning small injuries.
“The objective of the guidelines was to make the outcome of personal injuries cases more predictable, thereby encouraging earlier settlements and reducing costs,” she says.
The changes may have damaged the income of personal injuries lawyers but, she says, the Bar has always been “very resourceful”, with new areas of law opening up all of the time, such as concerning the use of social media and around data protection.
During her presidency, Irvine says she was most affected by wards of court cases and considers the advantages of remote hearings included being able to talk directly to wards. “Most of those in wardship come from disadvantaged backgrounds. They may have tragic family histories. Some were abused as children; others simply neglected or became involved in substance abuse at an early age. They never had any chance of a normal life.”
She is very concerned about wards with serious eating disorders. “You know that a small number of these will eventually lose their lives to this awful disease and that most of the others will have a lifelong struggle. The cases are dreadfully upsetting and your heart would break for these young people and their families. Regrettably, there are not enough specialist eating disorder units in Ireland and the specialists in this area repeatedly say that the prognosis for these patients is very poor without specialist intervention.”
