Outdated legal system in need of substantial reform

 

Restrictive rules and practices in our courts dating from the 19th century have no relevance now

RECENTLY IN this newspaper Michael Casey drew attention to some of the deficiencies in our legal system, particularly the court-related aspects of it. He provoked the usual blanket denial from the Bar Council, but little else.

The problems Mr Casey adverts to are very real. They need to be attacked and solved – not ignored again. This time around however, our new masters – the IMF, the European Commission and the ECB – will hopefully insist on reforms that our old masters chose to ignore. It is regrettable that efforts to suggest change and improvement so frequently meet with resistance.

The cost, slowness and inefficiency of our civil court system at the higher levels are very serious and damaging to our economic competitiveness as well as to the rights of individuals, particularly the less well off.

A successful attempt was made some years ago to fast-track the larger commercial cases but they have to involve over €1 million to be considered for this treatment. Earlier there was an ultimately successful effort to have the assessment of damages in uncontested personal injury cases decided, in the first instance at least, by an administrative board without the usual legal costs and delays. The opposition to this needlessly delayed its implementation, but at least it happened.

Otherwise very little of significance has happened in spite of a startling increase in the number of judges. In 1970 there were eight High Court judges; today there are 38. The population has not increased fivefold in that time. Court vacations in 1870 and 1970 totalled four months a year. In 2011 they are still four months.

It appears that the largest delays of all now occur in appeals to the Supreme Court which may run to several years in many instances. Some of the profession and at least some of the judiciary have suggested that the solution to the problem would be the creation of yet another court. This would involve another judicial layer and the appointment of yet more judges. I do not see this as a solution.

I believe the existing Supreme Court , whose numbers have been increased from five to eight could easily sit simultaneously for most appeals in two divisions or chambers of three judges each. They could still sit as a court of five in constitutional or other sensitive cases. This would rapidly reduce the backlog and prevent future delays building up.

Trying to accommodate the needs of litigants by judicial case management would be a valuable objective. It has rarely been a priority. Money has now become a decisive factor in determining the outcome of legal disputes in Ireland. There must be many who feel they have no option but to abandon their efforts to uphold their rights. For the average person to lose a High Court case is catastrophic. If he or she has no assets at all it does not matter, but for someone of moderate means they and their family could be wiped out.

One can of course benefit from generous pro bono work by barristers or solicitors but this does not remove the risks in a highly unpredictable forum.

The level of fees seems to percolate from the top. The State is the greatest culprit. It pays truly vast sums each year for legal advice to practitioners although it has a large and expensive legal establishment itself. It does so directly and through its myriad agencies, and now through the banks which the State now owns, funded by the unfortunate taxpayer.

It seems perverse that it is lawyers, and not those generating wealth, who are among the country’s wealthiest people. It is not impossible for several of the larger “fashionable” or well-connected firms to each get up to €10 million a year in fees from the State in one form or another. At the same time there are hundreds of unemployed solicitors. The system is equally lopsided at the bar. The fees demanded and obtained by some are frankly obscene. Many others have to walk away from the law.

A further cause for concern must be the eagerness with which the legal system seems to want to accommodate the mega-wealthy “non-resident” oligarchs who pay no tax here but avail to the full of the facilities which the State provides for its denizens.

The judicial system is a most important and fundamental institution which the State provides and finances for the benefit of those living here, who support and pay for it through their taxes, so that, inter alia, there is a system for the determination of disputes and vindication of their rights in the pursuit of justice.

Other countries take a different view. The United States, for instance, limits the legal rights of Americans living abroad who do not pay tax to the US on their foreign income. Here the sheer wealth of some of these people and their willingness to use their wealth in litigation gives an ordinary compliant resident little chance of prevailing.

At the very least we could start by insisting that the whole system become more user-friendly? This is the 21st century , and people have 21st-century needs. Restrictive rules and practices dating from the 19th century have no relevance now, and are of no benefit to the reluctant and nervous litigant.

Titles inherited from a monarchy of occupation and Gilbert Sullivan-style fancy dress may create an air of awe and mystery in less sophisticated witnesses and litigants but they hardly serve a valid purpose in this society.

At a time when our administrative and political systems are having to adjust to substantial changes, would it not be appropriate for our legal and judicial systems to do the same? And for once could these matters be debated without resentment and without a desire for a rigid adherence to the status quo?


Desmond O’Malley is a former minister for justice and was the founding leader of the Progressive Democrats.

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