Business Irish

Tuesday 16 January 2018

High Court Master warns against fast-track judgment orders


Aoife Finneran

CURRENT "fast-track" procedures which allow banks and other creditors to get final judgment orders without any full hearing breach the right to fair trial provisions of the European Convention on Human Rights, the Master of the High Court has said.

Master Edmund Honohan yesterday said that many applications for final judgment are granted on the "most unsafe basis" of sworn evidence from solicitors for creditors to the effect that a defendant has no defence. The debtors are often unable to pay lawyers and have insufficient legal knowledge to mount effective defences, he said.

Of all those who swear affidavits, solicitors were the group "most frequently found to have only a nodding acquaintance with the truth", he said.

Sworn statements from solicitors were "not generally reliable", many would swear in a formulaic way without double-checking what is the true position and some had "debased" the concept of the affidavit and oath, he claimed.

In his experience, he said, judges could also not reply on plaintiffs' barristers to inform their assessment of the strength and weaknesses of defendants' cases. Only an evidentiary hearing would be fair and the High Court should assess all such cases even when defendants were ignorant of the relevant case law.

In a detailed judgment yesterday, Mr Honohan, who manages High Court cases, raised issues as to whether the test being applied by the courts in deciding whether to allow a person leave to defend an application for final judgment breaches the European Convention on Human Rights.

That test, dating from 1875, involves the court deciding whether it is "very clear" the defendant has no arguable case but there should be a new test, derived from human rights principles, where the court must be satisfied the case can be fairly decided without an evidentiary hearing, he said.

The situation now, he said, is that in an effort to provide for earlier "trial" dates for cases which are indefensible, the judges have created a fast-track procedure which jeopardises defendants' rights to a fair hearing.

He said: "This is not a price worth paying just to achieve good productivity figures for the Courts Service."

Where people are representing themselves, the "minimum requirement for effective participation was to be allowed an opportunity to give evidence in the witness stand", he added.

"No floodgate argument should prevail against a defendant's right to a fair hearing."

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