Tuesday 22 October 2019

The courtroom is a 'terrifying' place, says cancer campaigner Vicky Phelan

Influential: Vicky Phelan speaks to the media after meeting the Taoiseach at Government Buidlings last August. Photo by Eamonn Farrell
Influential: Vicky Phelan speaks to the media after meeting the Taoiseach at Government Buidlings last August. Photo by Eamonn Farrell

Shane Phelan Legal Affairs Editor

CAMPAIGNER Vicky Phelan says the courtroom is a “terrifying” place for plaintiffs in negligence cases.

The mother-of-two last year settled for €2.5m her case against a US testing laboratory over the alleged misreading of her smear tests under the CervicalCheck programme.

After resisting efforts to impose a gagging order, she helped reveal how many other women were affected too.

Speaking about her experience of the High Court case, she described the layout of the courtroom as intimidating and confusing and the seating as uncomfortable for those who are sick.

It is also difficult for some plaintiffs to follow what is going on in court, Ms Phelan told the Bar of Ireland’s Laws & Effect Conference in Killenard, Co Laois.

She described the difficult experience of having lawyers refer to her terminal diagnosis, which she was still coming to terms with at the time.

Ms Phelan said she only started a new medication a few days before having to give evidence. She had a “terrible reaction” to the drug, with “really bad hallucinations”.

“I was very sick and I was on a lot of painkilling medication,” she said.

She also revealed how her husband Jim struggled with the court process and at one point required medication for anxiety.

“Going to court is a very, very terrifying experience for most people,” she said.

“The courtroom is a terrifying place for plaintiffs.”

In her case, she said this was not just because she was very ill and worried about what was to come, but because of the actual layout of the courtroom.

“I felt the layout of the court, with the stepped arrangement and everybody on different levels, was very intimidating and confusing to me,” she said.

When giving evidence witnesses sit on an elevated stand and cannot see their solicitors, who sit facing in a different direction.

“I couldn’t see the people who I trusted the most. I couldn’t see my family or my friends. I couldn’t see my solicitors,” she said.

“Until that day I went in to give evidence, I did not know I wouldn’t be able to see my solicitor. It threw me.”

Ms Phelan said it would be useful for plaintiffs to have “some signposting” to demystify the whole court process.

“I would have liked to have been shown the courtroom, maybe a tour, to be walked around the courtroom,” she said.

“Or, even if that was not possible, to be shown photos of the courtroom and to go through that either with my solicitor or barrister or somebody who would be an advocate for plaintiffs.”

She told how she sat on a hot water bottle while giving evidence and how a disabled aunt, who travelled to court with her, had to sit in a wheelchair, because the seating available was also uncomfortable.

Ms Phelan said simple things, such as making courtrooms more accessible, supplying a glossary of legal terms to help people follow the arguments, and instructional videos that could be watched online, would all make the experience “less terrifying”, if introduced.

Meanwhile, a former attorney general has expressed concern about comments made by a Government minister in relation to the judiciary and the size of injury awards.

Earlier this month, Michael D’Arcy, the Minister of State with responsibility for insurance reform, said he wanted to "dismantle the system" but that it is "not easy" to take on lawyers, judges and insurance companies.

John Rogers SC told the conference ministers were entitled to speak on issues, but it “is tricky when we begin to slip into the language of taking people on”.

“We can’t be turning the judges into an enemy,” he said.

“Do we remember what happened in the UK only a few months ago when the judges were designated the enemy of the people because they actually ensured parliament would be permitted to deal with the Brexit issue.”

Mr Rogers also criticised the Judicial Appointments Commission Bill, championed by Transport Minister Shane Ross.

This will create a new body with a lay majority to advise the government on the appointment of judges. The current advisory group has a majority of judges and lawyers.

“There are many who say this proposal is unconstitutional,” he said.

“It is really unfortunate the judiciary are being put in this predicament of being at the wrong end of Governmental opinion about the nature of their work and the people who should be appointed to do that job.”

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