‘Large-scale change’ needed in court, judicial workings to achieve efficient system - report

Ireland might need up to 108 extra judges over the next five years but there must be “large-scale change” in court and judicial working practices to achieve an efficient justice system, according to a top-level report published today.

Minister for Justice Simon Harris, announcing Government approval for the appointment this year of 24 additional judges, said the appointments and other recommendations of the Judicial Planning Working Group (JPWG), will amount to “the most significant reform” of the courts of the last century.

This is an appropriate marking of the centenary next year of the Courts of Justice Act 2024, he said.

“An independent, impartial, and efficient judiciary and courts system is critical to our democracy and I am confident this injection of new judges and the important reforms recommended will, when implemented, help to improve the operation of one of the State’s most important institutions,” he said.

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[ Appointment of 24 additional judges this year is approved ]

Of the 24 additional judges to be appointed this year, the Court of Appeal will get two and the High Court six. The District and Circuit Courts will each get eight. Mr Harris indicated, in line with the JPWG recommendations and subject to review, another 20 additional judges may be appointed.

The additional appointments are aimed at helping the courts reduce backlogs and to further the government’s plans for a new environmental and planning court and specialist family courts.

Speaking at a conference hosted by a working group of the Chief Justice on access to justice and the review of the civil legal aid scheme, Mr Harris noted the JPWG report, and a parallel study by the Organisation of Economic Co-operation and Development (OECD), pointed out that a substantial programme of change and improvement initiatives is needed alongside the recruitment of additional judicial resources.

“I understand conversations have started in this regard, which is welcome, and an action plan will be published later this year.” Reforms indicated in the JPWG report included tackling the high cost of litigation and extended time frames invoked in legal cases, he noted.

“It is vital that fair and equal access to justice is a reality for everyone- not just those with the privilege of means or education,” he said.

The Government response, and acceptance of the JPWG report, published today with the OECD study, was welcomed by the Chief Justice, Donal O’Donnell, and the presidents of the four other court jurisdictions.

The Government response “is a real and tangible recognition of the fact that a functioning justice system is not a luxury but is a critical component of a modern liberal democratic society which is founded on the rule of law”, the judges said in a statement.

The JPWG report says that appointing a significant number of additional judges up to 2028 would require more support staff and services, meaning substantial funding implications, for which the Courts Service should be adequately resourced.

Five-day weeks across all court jurisdictions; longer daily court sittings to maximise use of limited courtroom resources; shorter court vacations; more use of quasi-judicial and non-judicial officers and alternative dispute resolution mechanisms; and better case management, IT and data collection and management systems could all contribute to achieving the “large-scale” change required, it says.

Once sufficient judges are in place to enable it, all courts should move to scheduling trials over a longer working year, with any period of court closure limited to some days in December and a “short period” in summer, the report proposes.

Scarce courtroom resources could be maximised through longer daily court sittings, perhaps with one judge sitting from 9am to 1pm and a second judge sitting from 2pm up to 6pm in the same courtroom, it says.

“Additional judicial resources are required but, unless all of the interlinked structural issues are addressed, adding more judicial resources to an overburdened system will not provide an effective and efficient court system”, the report concludes.

In a foreword, JPWG chair Brigid McManus described the report as the first ever “systematic” assessment here of the number and type of judges required to ensure the efficient administration of justice over the next five years, and with a view to the longer term.

Further review

The Government has accepted the JPWG recommendation that 24 additional judges be appointed this year, with a potential 20 further appointments linked to assessment of the impact of the 24 appointments and progress made in implementing change.

There should be a further review in early 2025 of judicial resource requirements up to 2028, the report recommends. That would consider the impact of the additional judges appointed, actual trends in new business before the courts, capacity of the courts/courts infrastructure to support additional judges and the potential impacts on the wider justice sector.

The report of the JPWG, established in April 2021 by Helen McEntee, was informed by a major OECD study, commissioned by the Department of Justice, on judicial and court practices here. The OECD concluded Ireland needs an extra 36-108 judges and more efficient court operations.

The JPWG report says, subject to review, resources, further assessment of need and changes in work practices, Ireland may need the phased appointment of between 60-108 extra judges by the end of 2028. The cost of appointing 24 this year, including salaries, allowances, support staff and chambers, was estimated at €18 million a year, while an additional 20 would cost a further €15.3 million a year.

The total cost over five years of an additional High Court judge was estimated at some €5.3 million, comprising some €2.6 million for the judge, €687,767 for a registrar, €287,164 for judicial assistance and €1.7 million “other” costs. That excludes capital expenditure or additional accommodation costs.

The total central fund allocation in respect of the judiciary in 2021 was €30.8 million.

Noting the Courts Service has embarked on a modernisation programme, incorporating a three-year digital strategy, the JPWG says the use of IT to underpin case management reforms is “vital”.

The development of a modern data management strategy is being addressed comprehensively by the Courts Service and digital reforms should include greater use of e-forms and the streamlining of requirements and standards for full e-filing, it says.

The lengthy OECD study found Ireland has a shortfall of judges along with a limited efficiency of court operations and case management capacity. It suggests the likely number of extra judges required is between 36-108 but notes that procedural, operational and organisational improvements and investment to modernise case management and IT infrastructure could make the courts more efficient and thus reduce the number of extra judges required.

Both the JPWG and OECD reported their work was hampered by limited systems in the courts/judicial process for the collection and use of data and both caution the data deficits may affect their conclusions. Adequate data, they say, is necessary to identify the cause and location of backlogs and how best to address them.

The European Commission for the Efficiency of Justice (CEPEJ), part of the Council of Europe, reported last year that Ireland has the lowest number of judges, 3.27 per 100,000 population, in Europe. The mean number was 17.6. Ireland’s spending per inhabitant on courts was €31.10, below the European median of €43.53.

The courts workload will be substantially increased by some legislative developments, including the Assisted Decision-Making Capacity Act and the establishment of a new planning court, the JPWG notes. Government departments should assess the potential impact on the courts of legislative developments, it says.

More than 50 other recommendations include a possible reconfiguration of court districts, steps towards making the judiciary more diverse, and the introduction of human resources management and support functions for judges and holders of quasi-judicial offices.

Flexible work arrangement

In response to submissions from the judiciary seeking to have the retirement age of 70 extended, the group noted 70 is in line with the position elsewhere in the public service and recommended no change.

The group recommends, “in principle”, flexible work arrangement options for the judiciary and legislative change to allow for flexibility in judge numbers to cover long term absences.

The recommendations also include improved training for judges and staff, further supports for lay litigants and a backlog management strategy.

The courts continue to battle with backlogs, particularly affecting family and criminal law cases, which were exacerbated by the Covid-19 pandemic.

People in custody awaiting trial before the Central Criminal Court on rape and murder charges face an average wait of 12 months for a hearing date while those on bail can wait up to two years.

In Dublin Circuit Criminal Court, those on bail awaiting trial face a wait of up to 27 months compared to a 12/15 month wait pre-Covid. Those in custody, or priority cases, can expect a trial date within six months, similar to the pre-Covid position.

The number of family law cases in the Circuit Court have risen well above pre-pandemic levels, with incoming applications in 2021 some 20 per cent higher than in 2019.

Waiting times marginally increased across Circuit Court family law and civil cases in the nine months to June 2022. There was considerable variation in waiting times for contested family law cases across different circuit courts in 2021, ranging from the next court sitting day in Carlow to 26 weeks in Portlaoise.

Waiting times in the District Court for domestic violence applications ranged in 2021 from a same day hearing in Dublin or the next sitting day in several counties up to 26 weeks in Nenagh. Applications for guardianship/maintenance faced waiting times in 2021 ranging from the next sitting days in Sligo and Carrick-on-Shannon and four weeks in several counties up to 32 weeks in Naas.

At the end of September 2022, there were 408 civil and 371 criminal appeals pending before the Court of Appeal. The average waiting time for civil/criminal appeals is 24-25 weeks.

The JPWG report notes litigation in the High Court has become more complex for reasons including EU membership and intellectual and commercial fraud cases. There is a general increase in waiting times across all High Court lists but most cases deemed urgent are speedily dealt with.

Urgent family law cases are quickly dealt with but the average time from commencing family law proceedings to a hearing ranges from three months to three years. Current waiting times for a hearing of planning/environmental cases range from four to eight months from when the case is deemed ready for trial.

Ordinary personal injury cases are heard within nine weeks of being deemed ready for trial and specially fixed cases within eight months. The current waiting time for commercial cases deemed ready for trial is seven months but addressing procedural issues before that can take between four to 20 months.

In their statement welcoming both reports, the Chief Justice and court presidents said the report “represent an important and welcome development in seeking to improve the approach to supporting the administration of justice by investing in judicial resources and associated support”.

The reports “provide an independent and objective assessment of the need for a greater number of judges in the system in the short to medium term, and recommend a model to allow future judicial resource needs to be assessed on an ongoing basis and judicial numbers adjusted by reference to objective criteria”.

The statements noted Ireland has consistently had the lowest number of judges per capita in the EU and within the 46 member states of the Council of Europe.

Ireland has a heavy burden of litigation of increasing complexity while at the same time spending on the justice system has been low in comparison with other European countries, they added.

Constant legislative and policy changes and reforms and the urgent necessity to eliminate backlogs created by the Covid-19 pandemic also created a need for more judges, they said.

“The reports both provide the first evidence-based assessment of the extent to which judicial numbers have fallen seriously short of what was and is necessary to ensure that people and organisations can exercise their right to timely access to justice and are consistent with, and independent confirmation of, the submissions made by the Presidents of the individual courts to the Working Group”.

The effective functioning of the justice system requires resourcing the courts so that justice can be administered promptly, and in conditions that respect the dignity of all participants in litigation, and those affected by it, they said.

“The necessary implementation of these changes will undoubtedly pose challenges for the judiciary. We are confident that those challenges will be addressed by the judiciary in a constructive way, guided by the objective of improving the way in which the administration of justice serves the needs of society”.