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Sunday 21 July 2019

At every step of the way in every court case, what you will find is paper

Access to justice: It costs about €5,000 just to lodge a case in the commercial division of the High Court
Access to justice: It costs about €5,000 just to lodge a case in the commercial division of the High Court
Enda Leahy

Enda Leahy

We're great at witty nicknames in Ireland, and for me the very best one for our courts is the one coined with biting wit by the Phoenix magazine - the Four Goldmines. It perfectly encapsulates a cliché that most of us take for granted - that the courts are a money pit where the biggest winners are the lawyers and other hangers-on in the system.

But like any cliché, the idea that it's all the lawyers' fault panders to a lazy assessment of the facts.

The truth is that justice in Ireland is done by the State on the cheap, at great cost to all of the rest of us. And like any product or service, those of us mere mortals who don't have billions at our disposal can only get the service that the State pays for.

If you want to know what really drives the cost of having your day in court, look no further than the Courts Service itself, and how it has been stripped of the most basic resources for years in the face of crisis after crisis. This isn't just my opinion, it's a fact - one openly admitted by the new Chief Justice of the Irish Courts, Frank Clarke, on the day the courts first opened for business under his tenure recently.

In his own words: "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 - a high priority must, therefore in my view, be accorded to questions relating to practical access to justice."

What does access to justice mean?

It currently costs about €5,000 just to lodge a case in the commercial division of the High Court. And that's just the start - it's another €250 if you get to a hearing, €70 for every motion you file, €20 for every affidavit... the list goes on and on. Or, is access to justice about being able to find out what goes in our opaque courts system?

Consider this: if you want to search for a court case or a document opened in a public hearing you will find very quickly that justice in Ireland may indeed be done, but it is not seen being done. In my former life as a journalist and newspaper editor for over a decade, managing teams of investigative journalists, the one black hole of supposedly-public information was always the courts.

Even in the High Court, despite successive rulings that evidence heard should be accessible to the public and media, registrars simply do not have the resources to do it - there are about 30 staff in the Central Office, and if they acceded to even five requests for copies of affidavits each day, the whole operation would grind to a halt while they were off in a back room finding and photocopying hard copies (which it then costs you or I €6.50 per page to obtain).

At every step of the way in every court case across Ireland, what you will find is paper - a paper trail that would stretch to the moon each and every month if you stacked up all the forms, copies and boxes of evidence.

There is no way to file digital versions of documents with the court (known as e-filing) or to exchange evidence between parties during proceedings (known as e-discovery). Instead, everything has to be printed in triplicate and then stamped, posted and couriered to all and sundry involved.

Speaking to a Dáil committee last year, the CEO of the Courts Service said the level of annual spend on IT in 2008, of €9.7m, was cut in half, to €4.8m for the five years to 2015 - a deficit of almost €25m. He actually stated it was critical - his main concern was that an infrastructural problem might impede the very functioning of the courts.

Digitising the system

No court cases have had to be cancelled because of this risk, yet, but that is probably down as much to luck as to hard work by those left carrying the can. And if you had any doubt that this is a problem that the Government has been ignoring for a very, very long time, consider this. In 2001, the Courts Service, with Capgemini Ernst and Young, drafted a comprehensive plan to digitise the entire courts system, entitled eCourts, which would have cost €53m over a five-year period.

Here we are, 16 years later, and the Chief Justice is making the best of a bad lot in his speech, announcing digital reform plans. It's clear that he's keen to do it, but the best he could offer was an e-filing pilot project restricted to the Supreme Court, which hears just 0.08pc of Irish court cases.

And it will take a year to roll out.

Yes, it's true that lawyers love to bill people. But legal costs aren't only driven by how much a law firm or barrister thinks a client would be willing to pay.

They are also a function of stupid spending by the State. Or more accurately, stupid lack of spending.

The Government has turned its backs on this issue and we are all paying.

Enda Leahy is the CEO of Courtsdesk, a legal news and data agency

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