The increasing “corporatisation” of law, “monopolies” of big law firms, pressures on smaller ones and too many barristers are contributing to a “broken” legal system, according to a recently retired High Court judge.
In an interview with The Irish Times, Ms Justice Deirdre Murphy said access to justice was “becoming more limited as the bigger firms are taking over”, adding the dominance of big firms “is changing the face of our legal system”.
She said the State could help to address this by behaving as a “model litigant” in its conduct of litigation and its briefing policy.
Being a model litigant means the State sets a moral example in its conduct of litigation, has no private interest in the outcome and is the “guarantor of everybody’s rights”.
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This would see the State vigorously defend litigation that should be defended but abandon “strategies” involving defending cases to the point of discovery before settling them.
The retired judge said she was pleased Attorney General Rossa Fanning has drafted clear principles to guide Government departments and State agencies in the conduct of litigation. Approved by the Government last month, the principles will be published on Wednesday.
Ms Murphy, who became a barrister in 1979 and served as a High Court judge from 2014 until last March, said: “I think the system is broken, there are too many barristers scrabbling for too little work, monopolies of big firms, the briefing policy, pressures on the smaller solicitor firms.”
As a barrister, her mindset did not fit with the larger firms, she said. “People told me I didn’t charge enough. The bigger firms want to brief somebody who will charge a fortune so that they can justify charging a fortune.”
“The bottom line is profit. Who is representing the ordinary person?”
The situation is contributing to the increasing number of personal litigants, she said.
“The control over this work by the big firms is also driving up costs. It is not in the interests of the big corporate firms to challenge the State. It is the domain of the wealthy and the powerful and of course the State is one of the powerful.”
As the most frequent litigant in the courts, the State has a role in addressing this situation by ensuring a “fair and equitable” briefing policy, Ms Murphy believes.
Fair and equitable distribution of State work is an important element of a model litigant approach because it improves access to justice but the big firms have “cornered the State market”, she said.
