Sunday 19 November 2017

How our costly legal system can make justice inaccessible

Chalres Lysaght

SERVING THE PEOPLE The Need for Reform in the Irish Legal System


Liffey Press €19.95

Michael Williams, a retired and much esteemed partner in one of our leading firms of solicitors, stands forth on the evidence of this book as a shining exception to the general rule that successful people are slow to see the defects of a system within which they spent their working life and unreceptive to proposals for its reform.

Focusing on civil (as opposed to criminal) cases, he maintains that the legal system fails to deliver justice. The main reason is that those on middle incomes with modest amounts of property are deterred from litigation in all except cast-iron cases by fear of the costs they may incur if they are not successful. The downside of litigation is exacerbated because losers are generally ordered to pay the costs of their opponents, as well as having to bear their own.

It is well known that those with deep pockets have an advantage in litigation. Less appreciated is a paradox pinpointed by the author – that, in a system of litigation where the loser must pay the winner's costs, small-property owners on middle incomes are in a weaker position than the penniless.

The latter can often get lawyers to act for them on the basis of being paid if the case is won. Opponents of a penniless litigant are deterred by the knowledge they will not be able to recover their costs even if they win.

The author argues persuasively that costs of litigation are inflated unnecessarily by cumbersome procedures and the ability of a legal profession, actuated by greed, to exploit clients by overcharging and stringing out cases irrespective of the client's interests.

His indictment is pitched widely and extends to the judiciary chosen largely on the basis of political allegiance and effectively unaccountable for poor performance except in gross cases. Security of tenure, which is guaranteed to safeguard the independence of judges, means there is no effective sanction for under-performance.

It is, it must be said, easier to identify shortcomings in the legal system than to prescribe solutions.

Proposals made in this book to cap the annual earnings of lawyers by reference to judicial salaries and to prescribe maximum hourly rates of remuneration are problematical. The highly skilled lawyers who draft our legislation will not feel complimented by the suggestion that sub-standard judges should be induced to retire by the offer of a post in the office of the parliamentary draftsman.

While it is possible to quibble with some of the author's arguments, he is surely right in his essential conclusion that the expense of litigation makes justice inaccessible to a wide range of people and that the legislation on the profession now being piloted through the Oireachtas by Justice Minister Alan Shatter will do nothing to lower legal costs.

Litigants will still not be able to ascertain their costs in advance and will remain at a hopeless disadvantage if, at the end of their case, they wish to challenge the bill of their own lawyer or that of their opponents' lawyer, whose costs they may have been ordered to pay.

The position of the once-off litigants so often encountered in family or personal injury litigation is especially vulnerable, as their own lawyers are not restrained in their greed by needing to cultivate their goodwill with a view to future business.

Topically, the author questions the case being made for the creation of a court of appeal, which is that the supreme court cannot cope with the present volume of appeals from the high court. He believes the supreme court could ration appeals more effectively and could itself be more productive; he instances the fact that it sits regularly with five or seven judges when only three are required and wastes time in various ways, such as having its judgments read out in court rather than simply publishing them.

It certainly says a lot for the clout of judges that they can get a referendum to increase their number when the rest of the public service is being cut back.

For good measure, the author has added stinging critiques of a number of judgments of the supreme court. He accuses the court of interfering in matters that are the proper responsibility of the democratically elected legislature. One instance was the Abbeylara Case preventing a committee of the Oireachtas from inquiring into the actions of the Garda Siochana.

In that and another case, the author has written the judgment that he would have given. Had he been a judge, Michael Williams would clearly have brought a fresh perspective to the bench. Sadly, in his day, solicitors, however learned in the law, were not eligible for appointment to the superior courts

Sunday Independent

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