When it comes to the use of the court system, the State has a responsibility that goes far beyond minimising the burden on the exchequer of the consequences of its actions. The public purse and the public interest are not the same thing.
The public interest requires that the courts function in a way that all members of society can avail of them to vindicate their rights. When a recently retired High Court judge says that the way in which the State uses the court system is anathema to this principle, policy-makers should pay attention.
Ms Justice Deirdre Murphy, who retired last March after 42 years practicing law, including nine as a High Court Judge, has placed the State and its legal tactics at the heart of what she believes is a broken system.
The State’s approach to litigation has contributed substantially to a situation in which it is increasingly harder for plaintiffs of limited means to access justice, she believes.
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Murphy highlighted what she calls the corporatisation of the law; the increasing dominance of the market for legal services by a small number of very large firms, both domestic and international.
These firms are hoovering up the available work from clients including the State, which is overly litigious and prone to taking legal action against itself when other remedies are available, she says.
Corporatisation is having a detrimental effect on the viability of the smaller practices that in the normal way might be prepared to take on cases that, in her words, “were not popular and that would hold power to account”.
It has contributed to a situation in which there are too many barristers chasing too little work from too few firms. The consequence of this is that cases are taken on by barristers that perhaps should not be litigated and then dragged out.
The most recent example of the problems highlighted by Murphy was the controversy earlier this year about the State’s antagonistic approach to the defence of actions taken by former residents of nursing homes and their families.
Murphy has long been an advocate of Model Litigant Obligation, which requires the State to use the legal system ethically rather than, as was the case with the nursing home litigation, tactically or strategically with a view to reducing the impact on the public purse.
The Attorney General, who stoutly defended the approach taken towards nursing home litigants, is due tomorrow to publish a document commissioned in the wake of the controversy, setting out principles for how government departments should conduct litigation.
It will be interesting to see if he has moved any closer to Murphy’ position on the matter. When it comes to the use of the court system, the State has a responsibility that goes far beyond minimising the burden on the exchequer of the consequences of its actions. The public purse and the public interest are not the same thing.
The public interest requires that the courts function in a way that all members of society can avail of them to vindicate their rights. When a recently retired High Court judge says that the way in which the State uses the court system is anathema to this principle, policy-makers should pay attention.
Ms Justice Deirdre Murphy, who retired last March after 42 years practicing law, including nine as a High Court Judge, has placed the State and its legal tactics at the heart of what she believes is a broken system.
The State’s approach to litigation has contributed substantially to a situation in which it is increasingly harder for plaintiffs of limited means to access justice, she believes.
Murphy highlighted what she calls the corporatisation of the law; the increasing dominance of the market for legal services by a small number of very large firms, both domestic and international.
These firms are hoovering up the available work from clients including the State, which is overly litigious and prone to taking legal action against itself when other remedies are available, she says.
Corporatisation is having a detrimental effect on the viability of the smaller practices that in the normal way might be prepared to take on cases that, in her words, “were not popular and that would hold power to account”.
It has contributed to a situation in which there are too many barristers chasing too little work from too few firms. The consequence of this is that cases are taken on by barristers that perhaps should not be litigated and then dragged out.
The most recent example of the problems highlighted by Murphy was the controversy earlier this year about the State’s antagonistic approach to the defence of actions taken by former residents of nursing homes and their families.
Murphy has long been an advocate of Model Litigant Obligation, which requires the State to use the legal system ethically rather than, as was the case with the nursing home litigation, tactically or strategically with a view to reducing the impact on the public purse.
The Attorney General, who stoutly defended the approach taken towards nursing home litigants, is due tomorrow to publish a document commissioned in the wake of the controversy, setting out principles for how government departments should conduct litigation.
It will be interesting to see if he has moved any closer to Murphy’ position on the matter.