Legal world divided on legacy of retiring High Court president

Mary Irvine, who retires in July as the first woman president of the High Court, endured a baptism of fire, steering the court through Covid-19, fast-tracked remote hearings, and leading a successful campaign for more judges.

In addition, Ms Justice Irvine championed controversial new guidelines to slash minor personal injury awards – a deeply, deeply unpopular move in the eyes of many barristers: "Treason, as far as I'm concerned, what she has done amounts to treason to the Bar," one senior counsel fumed to The Irish Times this week, speaking on condition of anonymity.

Barristers have felt under siege for some years now, but the impact of the personal injury guidelines has particularly contributed to division in the legal world about Ms Justice Irvine’s tenure in the State’s third most senior judicial position.

“Remote hearings have been expanded much more than necessary, depriving junior barristers of essential training opportunities, and judges should never have got involved in making guidelines which mean people will not get properly compensated for their injuries,” said the same barrister.

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She recognises she is primarily a public servant whose first loyalty must be to the public, not to the Bar

Up to a third of barristers may quit, believes a junior counsel: “I think Ms Justice Irvine was excellent at getting the courts up and running again after Covid but I would have liked to see her, as a barrister herself, being more sympathetic to the position of barristers,” she said.

However, she has supporters at the Bar, too: "Judge Irvine is sympathetic to barristers, particularly the younger ones coming through, but she recognises she is primarily a public servant whose first loyalty must be to the public, not to the Bar," another senior counsel said.

“She can’t be held responsible for Covid-19 and remote hearings make sense for many applications: they save time and costs, and she has ensured the continuation of physical hearings when witnesses are involved.

"As for the guidelines, something had to give, some minor injury awards were off the scale. The Judicial Council Act meant guidelines had to be formulated, the judges had no choice," the SC continued, speaking on condition of anonymity.

‘Whiff of misogyny’

“The personal injuries barristers can yearn for the halcyon days of the past all they want, those days are not coming back,” according to another barrister, whose area of practice does not include personal injuries. “There’s a whiff of misogyny about a lot of the criticism of Judge Irvine. As far as I’m concerned, she has done an excellent job in an unprecedented time.”

Irrespective of their views on Ms Justice Irvine’s handling of the core challenges of the last two years, all lawyers canvassed agreed that she has been a consistently hard worker, not just as High Court president, but throughout her 40 year legal career.

Her decision to retire at 65, two years after her appointment to the position, did raise eyebrows in some quarters, but those working closely with her said she made clear at an early stage she would not remain in the post beyond two or three years.

Angela Denning, CEO of the Courts Service, said Ms Justice Irvine has been "an extraordinary president of the High Court and an extremely hard worker". "All her decisions were made for the best reasons, she always put litigants first. Because of her work with wards of court, she is always conscious of the vulnerability of litigants."

Now the job of replacing her begins. Earlier this week, the Cabinet agreed to establish a non-statutory advisory committee, comprising the Chief Justice Donal O'Donnell, Attorney General Paul Gallagher and a lay person, to assist with identifying candidates.

Under the Constitution, the High Court president and judges of that court shall be appointed by the President on the advice of the government. The proposed new statutory process for appointing judges, set out in the Judicial Appointments Bill, will not apply.

Many in the Law Library believe Ms Justice Irvine's successor will come from the Court of Appeal and that a recently appointed judge of that court, Mr Justice David Barniville, is the front runner; a "shoo-in", say some.

"Judge Barniville has it all," one senior counsel said. "He's bright, very popular, practical, organised, likely to be a reformer. He has good experience of running court lists, he managed the High Court commercial list, and he has leadership experience as a former chair of the Bar Council and president of the AJI [Association of Judges of Ireland]." I think people will regard him as a reformer, at least in terms of civil procedure."

His age helps, too, since Mr Justice Barniville is in his mid-50s, several years younger than some other possible contenders.

Gender balance

Others are more cautious, though: "[He] seems to be the front runner but there's a lot of other talent on the Court of Appeal. The government is bound to be thinking of gender balance in the top positions of the judiciary, and the appeal court has plenty of smart and experienced female judges such as Caroline Costello, Aileen Donnelly, Isobel Kennedy and Úna Ní Raifeartaigh. There's also Seamus Noonan and Maurice Collins, both bright and well-respected judges," according to a senior counsel.

The last three appointments as president of the High Court came from the Court of Appeal or Supreme Court but appointments to the position have also been made directly from the High Court.

Highly experienced, Mr Justice Denis McDonald, who manages the High Court commercial list, is popular with his bench colleagues and a strong contender if he applies. Mr Justice Charles Meenan, who manages the High Court's busy judicial review and non-jury list, figures in speculation, too.

Whoever gets the job will face major challenges, not least dealing with a Bar unhappy about the personal injury guidelines, the Government’s failure to increase fees for criminal legal aid, less appetite for litigation overall, and remote hearings.

Bar Council chairwoman Maura McNally wrote to Ms Justice Irvine to set out the objections to remote hearings for High Court applications such as judicial review, wardship matters, motions, most interlocutory applications [matters pending a full hearing] and uncontested regulatory applications. The council cited concerns about access to justice and the negative impact on the Bar of continuing remote hearings as proposed.

The idea that every row has to be resolved in the Four Courts with the barrister at the centre of that is now up for grabs

However, many barristers accept the need for remote hearings for many applications and are more concerned about the management of High Court litigation. “There is a big issue about delays in getting cases on and getting early return dates for motions,” one senior counsel said. “If I was looking for a hearing date now for a one-day discovery motion, I might not get one until November. There is a lot of frustration about this. “

He is adamant about a need for “much sharper” case management across High Court lists to ensure early hearing dates and wants the new president to prioritise better overall management of litigation and the modernisation of court processes. “It’s all very well to keep looking for more judges, but politicians want to see reform of how the courts work,” he said.

‘Not terribly efficient’

The “biggest existential problem” facing the Bar is that litigants, particularly commercial litigants, realise that court resolution of disputes is “not terribly efficient” and are looking for alternative means of resolution, such as meditation and arbitration, he said.

“The idea that every row has to be resolved in the Four Courts with the barrister at the centre of that is now up for grabs. When appeals are taken into account, it can take three to five years to resolve disputes, and that does not match the expectations of commercial entities.”

The next High Court president will have a key role to in play in driving the Court Service’s modernisation programme, whose objectives include improving access to justice and providing a simplified, efficient and effective court system that is user-focused.

And he or she will face the formidable task of managing the transition from the wards-of-court system provided for in the Assisted Decision Making Capacity Act, due to come into full effect in June.

That involves discharging some 2,000 wards, including many elderly and vulnerable people, from wardship over the next three years. Concern has been mounting about whether transition arrangements will be adequate for the future management of more than €2 billion in wards-of-court funds, which had been collectively managed by an investment committee, chaired by the president of the High Court, on behalf of wards. Up to half of those funds were moved into shorter-term, lower-risk funds last autumn as part of the transition preparations.

Other challenges for Judge Irvine’s successor include a huge volume of out-of-court work, including as a member of the Court Service board, several Court Service committees, the Judicial Council and the Judicial Appointments Board.

Managing 46 High Court judges, and possibly more if the Government accepts Ms Justice Irvine’s submission for another 14 judges, also takes time. “Let’s just say some judges are more demanding than others,” according to one experienced quarter.