Logjam in Supreme Court appeals not serving justice


ANALYSIS:Too few judges hearing appeals and a recent proliferation of lay litigants means judgment delays of years, writes CAROL COULTER

THE GOVERNMENT has just received a report from a committee chaired by Mrs Justice Susan Denham on the need for a Court of Civil Appeal to hear most appeals from the High Court, leaving the Supreme Court to deal with constitutional cases and those involving fundamental points of law.

The need for this arises from the increasing volume of cases going to the Supreme Court, resulting in lengthy delays. There can be up to three years’ delay in a case appealed from the High Court getting a hearing in the Supreme Court.

According to Eugene Davy, who specialises in family law, “an appeal [to the Supreme Court] can be used as a trump card because of the delay. The consequences can be catastrophic, especially for the more vulnerable partner.”

An urgent case can be listed in the Supreme Court as a priority case, and this happens in cases of child abduction and urgent custody cases like the Baby Ann case, as well as European Arrest Warrant cases, judicial reviews of pending criminal cases and other urgent cases, but it is unlikely an ordinary family law case will receive a priority listing, he said.

On May 14th this year there were 189 cases listed and waiting to be heard by the Supreme Court, an increase of 20 per cent on the same date last year, when there were 146.

According to a spokesman for the Courts Service, the average waiting period for all cases in 2008 was 17 months. The longest period which a case had to wait was 31 months and the shortest was one day. However, the averages include priority cases, which usually get on in a matter of weeks, if not days. All other cases are likely to have to wait for over two years.

One family law case came recently before the Supreme Court on appeal from the High Court more than three years after the High Court judgment. While waiting for the appeal, divorce proceedings were issued, as the parties had lived apart for four years, but the High Court could not deal with them because the judicial separation appeal was pending in the Supreme Court. Eventually the appeal did not go ahead and the case is now back in the High Court as a divorce case.

“Values can change hugely in the meantime, and have changed,” said Davy. “The appeal goes on transcript, much of which is now completely out of date, especially in relation to property values, the value of investments and incomes.”

Another family lawyer said that one effect of this was that one had to advise a client to settle the case if there was any risk the other party might appeal a judgment from the High Court, often settling on less than advantageous terms.

Not only are there delays in appeals getting heard, there can also be delays in judgments being delivered. For example, a case involving a lesbian couple and the sperm donor through whom they had a child was heard last October, and a judgment is still awaited, as it is in the case of the 43-year-old woman seeking to have frozen embryos implanted despite the objection of her estranged husband, which was heard at the beginning of February.

It is not only family law cases that are affected. Ken Murphy, director general of the Law Society, points out that the Commercial Court in the High Court now had an exemplary record in getting commercial cases disposed of quickly and efficiently.

“That is good for Ireland Inc. But if it is appealed it’s like going from a motorway into a boreen,” he said. He pointed out that the delays result from the fact that the system was not adequate to the demands being placed upon it, a point also made by the Courts Service in a background note provided to The Irish Times.

It pointed out that the changes in Irish society in recent decades, along with the growing volume of law from a variety of sources (for example, the EU, international agreements, the European Convention on Human Rights), the volume, diversity and complexity of cases had increased exponentially.

Yet the structure of the courts has remained the same since 1937, and, while the other court jurisdictions have grown in size, the Supreme Court has only grown minimally. “When I qualified 30 years ago there were five High Court judges and five Supreme Court judges,” Eugene Davy said. “Now there are 37 High Court judges and eight Supreme Court judges.”

This has inevitably created a funnel effect, with the volume of appeals increasing with little increase in capacity.

The Supreme Court has no choice but to hear every appeal that comes before it, many of which involve no significant point of law. There has also been an increase in the number of lay litigants bringing cases to the Supreme Court, often with little prospect of success, but the case must still be heard.

For example, one such litigant had three judgments delivered by the Supreme Court on the same day, March 26th last, and he lost all three comprehensively.

There were 71 lay litigants last year, 16 per cent of the 443 cases lodged. This compared with 49 lay litigants the previous year, out of 373 cases lodged. These inevitably add to the volume and to the delays, but produce very little in the way of jurisprudence. Because of the structure of the court system in Ireland, where the Supreme Court is both the appeal court from the High Court and the constitutional court, there is no filtering system and no place for appeals to go other than to the Supreme Court. For example, the Supreme Court decided 334 appeals in 2008, compared with 60, 70 or 80 in most equivalent jurisdictions. This inevitably has an effect on both the quality of the judgments and the waiting times.

In 2006 the Government set up the Denham committee which The Irish Timesunderstands recommended a referendum to clear the way for a Court of Civil Appeal as the Constitution does not provide for one.

The Government may not wish to go there, but at the least there is a compelling case for more Supreme Court judges and senior legal assistants to do some of the time-consuming work and free up judges to concentrate on essential work.

“More time for reflection would allow for deeper reasoning and lead to greater consistency and more predictability for litigants, and perhaps then less appeals,” said Ken Murphy.

Carol Coulter is Legal Affairs Editor of The Irish Times