Avalanche of litigation looms as High Court battles through delays

The High Court will never be the same again when the Covid-19 crisis finally passes, according to its president, Ms Justice Mary Irvine, who considers some of the changes enforced by the pandemic to be entirely necessary.

“We have learned from Covid that there are better ways to do things. Most medics are happier to give evidence via video link as it allows them get on with their work while waiting to give evidence,” she told The Irish Times.

“They don’t have to travel to court and wait around, often for several hours, and it reduces costs. Most practitioners now accept there is really very little difference in the quality of that evidence.

“The days of packed courtrooms for Monday lists are gone, certainly while infection rates remain high in the community,” she said, adding that it would “be unsafe” to have hundreds attending the Four Courts for matters than can be “dealt with just as fairly” remotely.

Pointing to the practices that lasted for decades before the pandemic forced changes, Ms Justice Irvine said counsel, solicitors, plaintiffs and defendants could be waiting in or near the courtroom for an hour or two for a 10-minute motion to be called, which she labelled an “inefficient and costly” scenario.

Now, she added, they can sit in their offices and carry on their other work until their motion is up, cutting down on travel and waiting costs, which should result in lower legal bills.

The world after Covid-19, if that is where we now are, will bring challenges, according to Ms Justice Irvine, who predicts an “avalanche” of cases will arise once restrictions are eased.

She said the courts already faced problems before Covid-19, with delays across all divisions for reasons including a rising numbers of criminal indictments and a shortage of judges. The problems have since worsened due to the impact of restrictions on court operations.

“We have an avalanche of cases coming in, including debt and Revenue cases which were put on hold.”

New judges

The Government last week announced the appointment of five new judges to the court and the indications are that a sixth may follow. Three of the appointees will be allocated to criminal cases, where there are significant delays, and the others will work on the asylum, personal injuries and planning lists.

“Crime has to be prioritised because of the particularly high level of constitutional and human rights at stake,” Ms Justice Irvine said. “The waiting time for a criminal trial where an accused is in custody is now about 18 months, regardless of their being presumed innocent. Where the accused is on bail, the waiting time is about three years from the time the trial is ready to proceed.

“And where the accused is on bail, the effect of a three-year delay for the victim of crime can be horrendously damaging and stressful apart from the fact that the delay could impact on the viability of the trial.”

Extradition applications, which EU law requires be dealt with within a tight timeframe, are also expected to almost double as a result of Ireland joining the Schengen Agreement.

Regarding the asylum list, the court has been advised of an additional 600 or so cases likely to be commenced in the next three months following the resumption of hearings by the International Protection Appeals Tribunal, she said.

“Regrettably only one judge is currently available to hear these cases when two if not three are needed,” Ms Justice Irvine said.

“As regards the commercial planning/strategic infrastructure list, the number of cases being commenced is increasing month on month, and again there is only one judge available to deal with these important and urgent cases.”

She continued: “Then there is the personal injuries list where there has been a 48 per cent increase in the number of clinical negligence cases between 2019 and 2020, including cervical cancer cases.

“ These negligence cases are the heaviest on judicial resources because of their complexity, and the increase is expected to continue for reasons including the reluctance of litigants to process their cases via the CervicalCheck tribunal. Many of these claimants are very ill and require their cases heard urgently.”

Wardship list

Because the Assisted Decision Making Capacity Act 2015 is expected to be fully implemented by next summer, about 2,000 wards of court will have to be discharged from wardship by summer 2025, creating more pressures on the already busy wardship list.

A High Court committee has just completed its report to the Working Group on Judicial Resources, set up in May. All court divisions will make submissions to the group, due to report to Government next April.

In the meantime arrears and delays will continue to build across all High Court divisions, Ms Justice Irvine said.

While stressing she is grateful for the Government’s decision to increase High Court judicial numbers this year, she said these appointments do little more than replace those judges appointed to other non-judicial work or, for other good reason, are currently unavailable to sit.

Equally, they do not reflect an increase to match the growth in the numbers of claims being commenced across all divisions of the High Court, she said.

The hearing of almost all categories of High Court cases continued during the pandemic, but witness cases were the “great problem” because many were unsuitable for remote platforms, she said.

Physical trials would be the default position in the new term in lists including personal injuries, family law, commercial and cases involving complex legal submissions, but hybrid hearings would suit many cases, she said.

The “starting consideration”, the judge said,would be to ensure courtrooms would be “as safe as possible” for physical hearings, with no reduction in the quality of the hearing afforded to the parties.

“Unlike indoor dining or going to the gym or an All-Ireland final, going to court is not elective. Parties, lawyers, witnesses, Courts Service staff and jurors are obliged to attend regardless of their risk profile.”

The numbers of people in court would continue to be restricted if that could be done without affecting the quality of the hearing. “It is not fair to expose people to a risk beyond what is necessary for the proper administration of justice,” Ms Justice Irvine said.

Parties will be encouraged not to bring in unnecessary witnesses, to agree reports where possible and take evidence from doctors and other expert witnesses via video link.

Remote platforms

She said the judiciary, Courts Service and most stakeholders believe, for efficiency reasons alone, such applications should be kept on remote platforms after Covid considerations were no longer a factor.

She accepted some, particularly younger members of the Bar, may feel adversely affected by motions being heard remotely as they believe courtroom applications help them develop their skills as advocates and provide an opportunity to demonstrate their abilities to those who might brief them in the future.

Court room training “is of course valuable”, she said, but learning how to conduct remote hearings as effectively as possible is important training because they “will continue long after Covid-19 ceases to be a factor in our lives”.

She said the court’s primary obligation was to the litigant. “We must go with the model of justice that is the most efficient and cost effective for those who need access to justice.”