Court sees human misery after Celtic Tiger demise


INTERVIEW:THE COMMERCIAL Court opened its doors in January 2004, with one judge, Mr Justice Peter Kelly, in charge of the list. Since then its work has exploded and it has reflected both the growth and the collapse of the “Celtic Tiger” economy.

To date 1,585 cases have been entered into the list and a panel of judges – including Mrs Justice Mary Finlay Geoghegan, Mr Frank Justice Clarke, until his appointment to the Supreme Court, Mr Justice Peter Charleton and Mr Justice Brian McGovern – sit regularly to hear them.

Since the property collapse the court has seen a huge increase in the amounts of money at stake in the cases before it, a change in the nature of the cases and a rise in the number of lay litigants, according to Mr Justice Kelly.

However, the number of cases entered before it is now down on its peak of 373 in 2009, the most severe year of the crash, to 233 last year. When the court started work in 2004 the cases concerned millions of euro; now they involve hundreds of millions or, sometimes, billions.

Earlier cases involved disputes about mergers and acquisitions, the oppression of minority shareholders or purchasers seeking “specific performance” of contracts, typically to buy property for an agreed price that was “gazumped” by a later buyer.

“Within 12 months we moved from that to vendors seeking specific performance where the value of the property had fallen and a huge influx of cases from bankers suing people for money owed, which they never did before,” Mr Justice Kelly told The Irish Times.

Another new phenomenon is the emergence of lay litigants, who seek to represent themselves before the court.

While there was always a certain proportion of lay litigants in the ordinary courts, these were unheard of in the Commercial Court until the last 12 months or so, he said.

Typically they are people who were legally represented at the early stages of a dispute, but ran out of money to pay their lawyers and now appear alone.

“There has been a massive destruction of wealth,” Mr Justice Kelly added. “The cases reported in the newspapers are those with high visibility, involving property developers and speculators and hundreds of millions of euro. Smaller cases involving tens of millions are not reported any more.

“People on salaries or farming folk who borrowed sums of money they normally never would have to buy land, for example, expecting to get planning permission, make up the bulk of cases. They would have been comfortable a few years ago; now their farm or business is being wiped out. The level of human misery you see every week is terrible. Very decent people’s lives are ruined.”

In its eight short years of existence, the Commercial Court has been showered with accolades. It has a public service award of excellence, its record for dealing with cases quickly is often cited and it is now gaining an international reputation as one of the fastest and most efficient courts in Europe in which to deal with international commercial cases involving issues like intellectual property. Some Madoff cases emanating from the IFSC will soon come before it.

The rules of this court, drawn up nine years ago by a committee chaired by Mr Justice Kelly, mean that once a case comes into its list, it is judicially managed and the parties or their lawyers no longer have control of its progress.

The documents are filed in advance and read by the judge, who directs the case.

“You can avoid excursions into blind alleys, there are no adjournments, every time the case comes in something happens,” Mr Justice Kelly said. “There is much more focused discovery [of documents]. We have the ability to require the parties to consider ways to resolve the dispute.

“The incidence of mediation has increased and the success rate has increased. For example, cases involving shareholders claiming the oppression of a minority are often successfully resolved by mediation. When we get to trial it is only on the issues that require adjudication. There is a strike-out procedure for dud cases,” the judge added.

All this has made for enviable statistics: a quarter of all cases are concluded in less than four weeks and half in less than 12 weeks. The average number of weeks it takes for a case to conclude is 22 weeks. “We are much faster than the other commercial courts in the EU,” Mr Justice Kelly said.

He stressed that it was only possible through the efforts of all involved, particularly the judges. “The extra work for the judges pre-trial is enormous. It could not be done without them,” he said.

There is also a lot of work for the lawyers before the case reaches a hearing for directions and fears were expressed that this would increase costs. However, Mr Justice Kelly said that any extra costs pre-trial are offset by savings from having a fast and focused hearing.

As concern grows about costs and efficiency in the courts, the rules operating in the Commercial Court are likely to receive increasing attention.