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Legal briefs in the 1980s fitted into large brown envelopes but they began arriving from 1995 in boxes that have been “multiplying at an alarming rate” in the years since, Supreme Court judge Peter Charleton lamented in a 2015 article advocating more precise claims and tighter management of litigation.
Charleton has focused many times since on the problems besetting the civil justice system, particularly the duration and cost of cases. Proceedings by a lay litigant over a note suggesting he was “building” his golf handicap dishonestly took up 83 High and Supreme Court days between applications, trial and appeals before being finalised, the judge noted.
Others, including the Free Legal Advice Centres, maintain the civil justice system will only be truly accessible if there is an adequate system of legal aid for civil cases.
On Tuesday, following the largest review to date of the civil justice system, an action plan for a radical transformation of the cumbersome and costly system is being put before the Cabinet for approval.
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The time and costs involved in some civil proceedings are mind-boggling. Until a final settlement in 2019, the pursuit by State-owned IBRC of Seán Quinn and his family over an alleged asset-stripping scheme following the collapse of the Quinn group took eight years involving multiple hearings and applications in the High Court and appeal courts. The saga incurred legal and other costs conservatively estimated by some legal sources at €25 million but believed by others to be much more. Legal costs and costs of discovering documents, as in many cases, accounted for a substantial part of the bill in the Quinn case.
Just last year, the High Court's Mr Justice Michael Twomey, after noting the legal costs of deciding a dispute between a building company and the National Assets Management Agency over ownership of €228,000 might amount to €460,000, said high legal costs have been a serious problem for years. That raises serious issues about how access to justice can be denied, including to citizens on average incomes, the judge said.
Frustration and concern about the slow pace, cost and accessibility of civil litigation here has prompted calls for reform over decades and various reviews have been carried out.
The most comprehensive review to date, by a review group chaired by Mr Justice Peter Kelly and comprising representatives of the legal professions, judiciary, Courts Service, and Government departments presented its 453-page report to Minister for Justice Helen McEntee in October 2020. Civil society groups were not represented on the review group but some made submissions to it.
The group was asked to make recommendations to improve access to justice, reduce litigation costs to the State, secure better outcomes for court users, improve practices and procedures to ensure timely hearings and simplify procedural rules. Its brief also included reviewing the law on discovery of documents, encouraging alternative means of dispute resolution and improving means of communication, including use of e-litigation.
Its report made 95 recommendations, described as “practical, affordable and capable of implementation with as little fuss as possible”.
The group managed to reach consensus on all recommendations but divided on the sensitive – and crucial – issue of litigation costs with the effect it put two proposals before Government.
The majority supported the use of non-binding guidelines concerning cost levels while the minority, including Kelly, favoured a mandatory scale of maximum costs to be set by an independent committee established under statute, with safeguards to deal with exceptional circumstances.
Anti-competitive
The majority considered that a rigid costs scale system, favoured mainly by the Government departments, would be anti-competitive and ultimately be an anti-consumer measure favouring institutional litigants such as the State and insurance companies.
Court rules are to be amended to require parties to plead their cases more precisely
In his letter submitting the group's report to the Minister, Kelly explained why he sided with the minority. Ireland, he said, is a high-cost jurisdiction in which to conduct litigation, that "may amount to a denial of justice for individuals and businesses who are deterred from having recourse to the courts for fear of financial ruin" and has "a negative effect" on attracting international commercial litigation here.
Kelly considered the review recommendations likely to have the greatest impact were those dealing with litigation costs, proposing an entirely new system of discovery, and tightening the scope of judicial review, including by requiring applicants seeking to have decisions by public bodies overturned by the court to establish “substantial” grounds for doing so.
Other recommendations include for new laws setting out “case conduct” principles governing the conduct of litigation and case management obligations of the court. Court rules are to be amended to require parties to plead their cases more precisely, there will be limitations on adjournments and simplification of court forms and language.
Most of the group’s recommendations will not require primary legislation and can be effected by changes to court rules and other measures. Its recommendations for the implementation of earlier proposed reforms, including for introduction of pre-action protocols in medical negligence cases, may help ensure that those are finally put in place.
On receipt of the report, the Minister said an implementation committee would prepare a plan by February 2021 to implement the recommendations. More than a year later, that plan is being put before Cabinet this week, with full details to be published shortly.
The Irish Times understands the plan will provide for implementation of most of the recommendations but that a final decision on how to address the crucial issue of litigation costs has been deferred. A firm of consultants has been asked to prepare a further report on the costs issue before a final decision is taken.
The Kelly review has received a cautious welcome across the legal profession, with enthusiasm most pronounced for discovery reform, more case management, user-friendly court documents and requirements for more precision in pleadings. The proposed tightening of the judicial review regime is more divisive.
Solicitor Liam Kennedy, a partner in A&L Goodbody LLP, said legal costs have risen over the years, as have costs for other goods and services, but some very complicated litigation has come before the Irish courts in recent years. "Such litigation would have been expensive and time consuming where and whenever it arose." Other delays are due to the impact of Covid-19 and a shortage of judges, he added.
Many lower-profile cases are resolved reasonably early, by negotiation or mediation, avoiding significant trial costs, he pointed out. “Such cases attract less publicity but are arguably more reflective of the system as a whole.”
Kennedy described judicial review as “a vital constitutional safeguard in Ireland to protect the rights of the individual and ensure that governmental and public powers are properly exercised”.
Instead of reducing the scope for judicial review, he considered that “more important” measures to achieve this balance would be to allocate more judicial resources to such proceedings to enable more rigorous case management and stricter time tables.
“In my view, the fundamental driver for the delays is the need for more resources for the Courts Service, judges, registrars, court facilities etc.”
Resources should be provided for assertive case management across all courts which “would arguably be the single biggest reform which could be introduced to improve access to justice and reduce time and cost involved in litigation in Ireland”.
Kennedy disagreed with the review’s minority recommendation on litigation costs but was concerned that implementation of the majority recommendation “could have negative unintended consequences in terms of limiting access to justice by disadvantaging individuals who were confronted by large well funded corporations”.
He favoured gauging the impact of the other reforms, and taking time to examine the extent to which the establishment of the Legal Services Regulatory Authority, and associated controls on legal costs, addresses concerns about costs before deciding whether further costs regulation is required.
According to Joe O'Malley, managing partner in Hayes Solicitors LLP, there is "little doubt that these recommendations, if implemented, are likely to contribute to a speedier and less costly civil justice system".
“Discovery is often the single most costly element in litigation, a product of the proliferation of electronic data held by parties and the antiquated rules governing discovery in litigation,” he said.
Recommendations
The proposed discovery reform, while “very welcome”, will only succeed if precise pleadings are a mandatory requirement and the issues in a case are capable of being distilled early in the proceedings, he added.
The proposed judicial review reforms should, he considered, “lead to a more manageable and justifiable level of judicial review”.
Eilis Barry, chief executive of the Free Legal Advice Centres (FLAC), said there is a "huge need" for reform of the civil justice system and FLAC was disappointed that civil society was not represented on the review group or consulted about the plan to implement its recommendations.
FLAC welcomed the proposals for making the court system more accessible and user friendly and praised the Courts Service’s work to date in that regard, she said. However, it was very concerned that the proposed tightening of the scope for judicial review, if implemented, will erect more barriers for the poorest and most disadvantaged litigants.
“This is a really serious and critical issue,” she said. “Judicial review is not frivolous; it is the poor person’s remedy for holding the State and public bodies to account.”
We need to address unmet legal need in a whole variety of areas to bring our system into line with international obligations
FLAC pursues many judicial reviews on behalf of people in dire circumstances trying to access very basic services such as supplementary welfare allowance and emergency accommodation, she said. “There are very significant barriers in place already, including the lack of comprehensive legal aid. Many clients have no choice but to go to court because Government departments and public bodies may not respond to correspondence seeking entitlements until proceedings are taken. Very often the State and public bodies will settle the case once leave has been granted.”
FLAC had, for example, used judicial review in proceedings where a person who was severely ill was sleeping on a beach with no access to welfare, or housing.
Barry pointed out it is necessary to get court permission to seek judicial review of decisions by State bodies in the first place, when no such leave is required in other cases. “Rather than reducing the existing formidable barriers, the new recommendations, if implemented, will put a triple lock on applicants seeking access to basic essential services.”
Donncha O'Connell, professor of law at NUI Galway, shared FLAC's concern that civil society organisations were not represented on the review group.
The group clearly has expertise and credibility, but the lack of civil society representation resulted in an analysis by “insiders” of the problems in the civil justice system, he said. “That meant it was limited from the outset which is very regrettable. The causes of the problems in the civil justice system are not just known to insiders and may need more open analysis involving a much deeper understanding of the experience of being shut out from the justice system.”
A former member of the Legal Aid Board, Prof O'Connell said his primary concern when it comes to reform of civil justice is the "demonstrable inadequacy" of the civil legal aid system. "We need to address unmet legal need in a whole variety of areas to bring our system into line with international obligations.
“Many, especially judges, within the legal system see lay litigants as a real problem but the rising number of unrepresented litigants is a direct outcome of the absence of a comprehensive system of legal aid in civil cases.”