Key decision on legal costs in major plan for justice system reform deferred

A Government plan for implementing about 90 radical reforms of the civil justice system has deferred until next year a final decision on a key issue – how to tackle soaring legal costs, including costs to the State.

However, the plan endorses controversial recommendations for new legislation, to be enacted next year, to tighten the scope for judicial review, provide for speedier hearings of challenges and to permit administrative bodies to reopen decisions to correct errors subject of challenges.

Minister for Justice Helen McEntee directed preparation of the implementation plan after receiving the mammoth report of a group established to make recommendations aimed at a more accessible, efficient and less costly civil justice system.

Chaired by Mr Justice Peter Kelly and comprising representatives of the legal professions, judiciary, Courts Service and government departments, the review group agreed 95 recommendations for wide ranging reforms in its report of October 2020.

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A committee was set up to prepare a plan to implement the recommendations and, following approval by Cabinet last week, the plan is to published on Monday.

It sets timelines for the reforms across seven key work streams with most to be implemented on a phased basis by the end of 2024. A group comprising judges and representatives of the Courts Service and government departments will drive and oversee implementation.

The plan prioritises the introduction and commencement, by the end of 2023, of legislation improving civil procedures and restricting the scope for judicial review, including by requiring applicants seeking court permission to bring judicial reviews aimed at quashing decisions by public bodies to establish substantial grounds for their challenge.

Legislation for an entirely new system of discovering documents is intended to be in place by the end of 2024.

Many measures, including for more extensive case management and greater precision in claims, do not require legislation and will be implemented via changes to court rules and practices. This includes rules requiring personal injury litigants to clearly distinguish between any relevant pre-existing medical condition and the injury which is subject of their claims.

Several recommendations, including for the introduction of a single claim form rather than multiple documents, are aimed at making the civil system more user-friendly and accessible.

Legal costs

The review group could not reach consensus on a significant issue: whether to introduce a scale of legal costs and if that should be mandatory.

Most supported non-binding guidelines concerning cost levels but a minority, mainly government departments and including Judge 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.

In a foreword to the implementation plan, entitled Civil Justice Efficiencies and Reform Measures, Ms McEntee said her department has commissioned economic research, by consultants Indecon, concerning the litigation costs reports from the review group. When completed, the research, together with appropriate legal advice on its findings and implications, will inform policy proposals she intends to bring to Government next year, she said.

“Our objective will be to reduce the cost of litigation and to improve access to justice.”

Courts modernisation

The Courts Service is implementing its own ambitious Courts Modernisation Programme 2020-2030 in a way that aligns closely with the actions under the plan to ensure better outcomes for all court users, she said.

The plan is part of a broader civil justice reform programme set out in the Justice Plan 2022 which provides for a review of the civil legal aid system; establishment of a dedicated family court structure; finalisation of the first national strategy on family justice; and the Judicial Planning Working Group which is examining the number and type of judges needed over the next five years.

Six actions under the implementation plan have been completed, including changes to court rules to encourage compliance with time limits, aimed at reducing delays, the Minister said.

The digitalisation of the courts will continue to be accelerated to ensure justice is accessible for everyone, she added.

Other reforms include the introduction of the 360 Virtual Court Tour so court users can familiarise themselves with court surroundings and an online information hub for those considering bringing proceedings without professional representation.