Friday 18 January 2019

Michael Williams: We need proper reform of our courts system – not new layer of judges

The Four Courts Dublin
The Four Courts Dublin

On October 4 next, as well as voting on abolishing the Seanad, we will consider a composite proposal, first to approve the establishment of a new Court of Appeal and, second, to remove a rule that when the Supreme Court makes a decision on a constitutional issue, only one judgment appears.

But, amazingly, the Government has limited our choice. We must vote for or against the package. We may not approve one part but not the other.

To reject a proposed amendment that comes to us from politicians who treat us so disrespectfully is a natural reaction, and would give them a useful message.

But let us assess each proposal on its merits.

The single judgment rule really has none. It should not be in our Constitution. But it is not important and we could put up with it if we could delete it only at the cost of approving a new layer of judges, and that did not seem to be a good idea.

So, let us look at that proposal. It seems that over time our Supreme Court has fallen into arrears to the point where it will take it four years to decide an appeal lodged today. Justice delayed is justice denied, so our Supreme Court does not do the job it was constituted to do.

Moreover, its failure encourages litigants to abuse the process and buy time by lodging unjustified appeals. That needs to be stopped.

The arguments for creating the new court appear in a 'Report of a Working Group on a Court of Appeal', published in May 2009. It does not tell us who is responsible for the court's failure, or what efforts have been made to deal with it. It contemplates only one cure: more judges. It does not ask whether appeals could be handled more efficiently without impairing quality.

Could that be done? I suggest if we were to design an appeal court for the 21st century, we would aim for the following:

* It would focus on the issues, and exclude irrelevancies.

* It would prohibit frivolous and tactical appeals, and penalise people who lodged them.

* It would operate mostly in writing. Oral argument would be limited to clarifying written material circulated in advance, and would be controlled by judges, not advocates.

* It would require the appellant to make their case, and involve the other party or parties only if the judges decided the appellant had shown a case that called for a response.

* Most appeals would be considered in the first instance by only two judges, because two would constitute a majority in a three-judge court. If they agreed, a third would not be needed. Not many cases would call for a five-judge court. Such cases would be dealt with in the same way, but initially by three judges instead of two.

* It would discourage appeal judges from writing lengthy judgments that merely repeated the trial judge's findings, unless another judgment would be a genuine contribution to developing jurisprudence.

* It would use modern technology, for efficiency and to ensure that the process was accessible to the public, as the Constitution rightly requires.

Our Supreme Court operates under a system that meets none of those criteria except the last, and that to a very limited extent.

The 2009 report tells us that some High Court hearings run for more than 50 days, and two have lasted more than 260 – a full working year with five-day weeks and no holidays.

It argues that having to hear appeals from such cases imposes an extra burden on the Supreme Court, requiring more appeal judges.

But no litigation, however complex the facts and however obscure the law, could need 50 days of a High Court judge's time, let alone 260.

Those cases must have wasted huge amounts of judges' time and litigants' money. So we should read this part of the report as evidence that reform is needed at High Court level, too, not as an argument for increasing the number of appeal judges.

Four years' delay in hearing an appeal tells us that our judicial system is in crisis. An automatic reaction to a crisis is a quick fix. The remedy proposed is a new court and more judges. But a crisis also represents an opportunity for reform. We now have one and a motive for fundamental reform of how the courts – including the Supreme Court – perform their function.

We know their current modus operandi is ineffective. If we approve a quick fix, the incentive for reform will be lost, and is unlikely to occur again in the lifetime of anybody reading this article.

Michael Williams is a retired solicitor whose book 'Serving the People?' was published this week

Irish Independent

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