New Chief Justice lays out important priorities for the coming Legal Year.

Today, Ireland’s new Chief Justice, the Hon Mr Justice Frank Clarke, addressed an audience of senior judges, lawyers, the AG and representatives of the legal professions and the Courts Services. And he has called for the voice of the judiciary to be heard in the ongoing debates about Judicial appointments and a Judicial Council.

The full text of the Chief Justice’s speech is available here: 2017 New Legal Year Statement. The Courts Services’ press release highlighted a number of topics that the Chief Justice addressed:

 

Judicial Council and Appointments – wholly appropriate that judges make their views known

He said that, “the Judicial Appointments Commission Bill will undoubtedly bring about significant reform in the way in which judges are appointed. The Judicial Council Bill will, for the first time, provide a proper framework for judicial training and ethics. The judiciary has long supported the principle of both of those measures – recognising the need for reform”.

The Chief Justice stated, “ I know of no jurisdiction in the world where it is not considered reasonable and appropriate for judges to make their views known in an appropriate way, in relation to proposed legislation which actually affects the judiciary itself. Obviously this legislation has the potential to affect the judiciary in a very significant way and it is, in my view, wholly appropriate that judges make their views known while recognising, of course, that legislation is ultimately a matter for the Oireachtas”.

 

Access to Justice – certain types of litigation are beyond the resources of many …….. requires a radical reappraisal to identify better ways of doing things

In his statement for the coming new legal year, the Chief Justice outlined his and the judiciary’s priorities for the coming twelve months. Addressing an audience of senior judges, lawyers, the AG, and representatives of the legal professions and the Courts Service, Chief Justice Clarke said that,

“ there is little point in having a good court system, likely to produce fair results in accordance with law, if a great many people find it difficult or even impossible to access that system for practical reasons. I emphasise the practical because there are few formal legal barriers to access to justice in the Irish legal system. But it has increasingly become the case that certain types of litigation are beyond the resources of many”.

He in particular welcomed the thorough review of the Courts Civil Procedures – being overseen by a committee chaired by the President of the High Court – as some court rules go back as far as 1870. He said that “ of course the fact that rules are somewhat venerable does not mean that they are necessarily no longer fit for purpose, but the experience of new experiments, such as the commercial court, has demonstrated that it often requires a radical reappraisal to identify better ways of doing things”.

 

Funding our Courts System: more investment and better use of resources needed

The Chief Justice noted the significant cuts to court funding during the recession – a cut much deeper than that experienced by other areas of public service and more severe than of the justice agencies. He emphasised that any new funding sought needed to go hand in hand with the proposed review of procedures and any changes recommended by that review, and also that the €44 million generated in court fees, accounts for 58% of total current spending.

He said, “my second priority is to engage with government with a view, hopefully, to persuading those concerned that there is a need for a significant increase in the back-up facilities available to judges – but in doing so to make it clear that I do not see increased back-up as operating in isolation from the need for better use of resources as part of an integrated plan”.

“In the overall context of resources I hope to continue to explore means whereby the case for resources for the Courts, which are after all the third arm of Government established by the Constitution, can be put more directly to the final decision makers. We cannot expect to write our own cheque but we can seek the most effective way to have our case heard”.

 

Review of Supreme Court procedures – following three years of the reformed court…

The Chief Justice announced that the Supreme Court has established a small group consisting of himself, and two other judges – in conjunction with the registrar of the Supreme Court – to conduct a thorough review of the new procedures adopted by the court three years ago, and make recommendations for any changes. The group will consult with the practising professions, and hopes to conclude the process in time that any changes can be implemented with effect from 1st January next. The completion and implementation of this review represents his third important priority for the coming year.

 

Paperless Courts: Realising the use of Technology in the Courts …… Recovering from under-investment … Plan this year to have Supreme Court online filing:

The Chief Justice said that “where a body such as the Courts Service has to operate on significantly reduced financial resources, it is unfortunate, but inevitable, that areas which can be cut will be cut. I.T. suffered particularly harshly in that way. All judges know that we operated for a time with software which was so out of date that it was not even tech supported”

“However we are now slowly returning to a situation where it will be possible to plan for the greater deployment of IT in the years to come…. It is important that the Supreme Court shows some leadership in this regard. With that in mind, I and my colleagues have agreed to a pilot project in which it is hoped that all applications for leave to appeal to the Supreme Court will be capable of being made and considered online”.

A working group consisting of judicial, administrative and IT personnel has been established to bring this project forward as a matter of some urgency. It will be one year before the project can be expected to go live – as a first step.

The Chief Justice said that “if it is seen to work, I can see no reason why all further stages of the appellate process could not be facilitated by online filing and, indeed, the use of IT to support oral hearings. In that latter regard it is worth mentioning that there was a successful experiment conducted in the recent past where an appeal was conducted entirely on the basis of all legal personnel and judges using only tablets. It is hoped to continue with the experimental use of paperless hearings”.

 

Accessing Judicial Resources for the Court of Appeal: clearly more appellate judges needed … as a matter of particular urgency.

The Chief Justice pointed out that “the Court of Appeal has put in place new and innovative procedures which do make the system more efficient. It is also abundantly clear that the workload of the individual judges of the Court of Appeal is, if anything, beyond what can reasonably be expected.”

He said there was “a need to secure an increase in the number of judges for the Court of Appeal”. In the some short term he has agreed with the court’s President, measures which may be able to be put in place which would have the effect of allowing the Supreme Court to assist with the current acute problem which the Court of Appeal faces.

“However, there is no doubt that the long term solution requires more judges. There are a number of reasons for this. First, there are more appeals today to the Court of Appeal than there were to the Supreme Court under the previous regime.

The criminal side of the work of the Court of Appeal is up to date. However, this achievement requires the allocation, typically, of four judges.

The six remaining judges have to deal with an increased civil appeal burden….. it is not difficult to see why there is a problem”.

“I would like to emphasise here my complete commitment to supporting that case for extra judges for the Court of Appeal, and also the commitment of my colleagues and I to assist in any exceptional, interim, short term measures which may be required.

Leaving aside altogether issues concerning the method of judicial appointment there is an urgent need to address at least some aspects of the shortfall in numbers in the appellate courts as a matter of particular urgency”.

 

Brexit:

A final point on BREXIT. “The Irish Supreme Court plays its role in many Europe wide judicial bodies which are frequently consulted by the Commission and by European legislators. It is always necessary to ensure that the common law position is understood to minimise the risk of unintended consequences. In the past we have, to an extent, been able to rely on the well resourced United Kingdom to take the lead. Post BREXIT Ireland will become the biggest common law jurisdiction and a much greater burden will fall on us to ensure that European measures proposed fit well into a common law system”.

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