Major changes have taken place in our Courts in recent times. First, a new Court of Appeal has been called into existence, to deal with arrears in High Court appeals that had built up in our Supreme Court. Secondly, a system of “case management” that has operated for years in our Commercial Court is to apply to all High Court actions from some future date, currently unclear. Under it, it is hoped that judges will intervene, early and actively, in how High Court actions are conducted, bringing them to a hearing faster than we have been used to, and disposing of them faster. Each of these developments seems to be a useful reform, but each raises some questions. This article will aim to ask them about the new Court of Appeal and a companion article will consider “case management” (view here).
Perhaps the first thing we might question about the establishment of the new Court of Appeal is the timing. We were told a new Court was needed, and we should vote in a Referendum to allow it to be established, because the Supreme Court could not cope with the weight of appeals it was receiving. But we are now told “case management” will make High Court actions shorter and simpler. Surely, then, appeals from High Court actions should take up less Supreme Court time then they have? Indeed, if case management is such a valuable tool, could the Supreme Court not have applied it to cases that were awaiting its attention, and thus eliminate its arrears, without needing a new court? If not, surely the Irish people, who pay for the Courts and the judges, should have been told why this is not so?
You might expect that this question would have been answered in the Report of a Working Group that led to the referendum and the new layer of judges, but it does not mention “case management”. The Working Group was dominated by lawyers, as we will see when we look more closely at it, and one is left with a disagreeable suspicion that either consciously or unconsciously they overlooked that obvious question.
Next, let us look at how the process unfolded. The starting point is that the Supreme Court, whose duty is to hear appeals from High Court decisions, had got so heavily into arrears in its work that a litigant who appealed from a High Court decision would have to wait two and a half years for his appeal to be heard. Justice so long delayed is, as lawyers have always agreed, justice denied. The Minister for Justice of the day, Dermot Ahern TD, set up a Working Group to address the Supreme Court’s failure to keep up with its case-load. He did not ask it to look at the problem, understand its cause or causes, and suggest how it should be cured. Its primary function was “to review and consider the necessity for a general Court of Appeal …” with a subsidiary function of advising on how, technically, that would best be done. A malaise, inordinate delay in processing appeals in the Supreme Court, was acknowledged, but the Minister did not ask the Working Group to find out what caused it, or how it should be remedied. The question it was asked was “do we need another layer of judges”?
The Minister appointed a Group made up as follows:
- One Supreme Court judge, who chaired the Group
- One High Court judge
- A senior representative of Ireland’s barristers
- A senior representative of Ireland’s solicitors
- Three civil servants, one each from the Department of the Taoiseach the Department of Justice, and the Attorney General’s office.
Its Secretary worked in the Courts Service, and it had two Research Assistants, both academic lawyers.
Not one member of the Working Group represented the Irish People who judges, practitioners, law teachers, and civil servants all exist to serve. The Minister and all those who served on the Working Group seem to have assumed that only lawyers should be involved in deciding how legal service should be delivered. None of these lawyers seems to have thought of saying,
“To appoint a Group to review how the courts serve the public and not to include in it any member of the public we exist to serve is not only absurd but shows contempt for the people we are supposed to serve. I will not collaborate with such absurdity, or show disrespect for the Irish People by serving on it.”
Nor does it seem that idea occurred to the Minister.
The group decided that Ireland did need a new layer of judges, and the best way to establish it would be by constitutional amendment. Exhorted by Mr Ahern’s successor, Minister Alan Shatter TD, and by the Chair of the Working Group, who had meanwhile become Chief Justice, we voted as we were told to.
It surprised some of us that the Chief Justice was willing to intervene in the People’s decision on a referendum, because she was one of the Supreme Court judges who forbade the Government to campaign on a previous referendum, because, they said, official government intervention in favour of a vote one way was unjust to citizens who might campaign the other way. It is difficult to reconcile her judgment in that case (McKenna v. An Taoiseach) with her intervention in this referendum.
The Working Group’s decision was foreseeable, perhaps even inevitable. A group of seven, four of them lawyers, chaired by a judge and including another, was not going to decide that we had enough judges and needed no more. Nor was such a group going to produce a report that criticised how judges and practising lawyers serve the rest of us. The Court of Appeal may turn out to be useful, but an opportunity to examine how the courts serve us, and to involve outsiders in that examination, was squandered.
On a casual reading, you might be inclined to agree with what the Report says, but if you start reading it critically, your reaction may change. For example, you will find in the “Conclusions and Recommendations” section, at Page 7:
“The primary role of the Supreme Court is not to engage in error correction. It is primarily to engage in explaining the Constitution to the People … We need to ensure that the process of dialogue which occurs in the Supreme Court is brought to as many people as possible and explained as thoroughly as possible.”
If you were in head-nodding mode, your eye might pass over this, but if you pause and ask, “Is that really the Supreme Court’s job?”, your head may cease to nod. The Constitution requires the Courts to perform a strictly limited function: to administer justice, nothing more. Explaining the Constitution is not part of the “job description” of Supreme Court judges, or any judges. Reviewing decisions made in lower Courts and correcting them if necessary, is. Furthermore, if the Report was right, and explaining the Constitution to the People was part of the Supreme Court’s role, even its judges would have to admit that having five (or sometimes seven) judges each write a lengthy judgment, much of it going over the same ground as their colleagues, in language few of their fellow-citizens would understand, was not an adequate way of performing it.
The Report does discuss in Chapter 3 the number of days High Court actions absorb, and presents hair-raising statistics of cases that were at hearing for months, and in two instances for more than a working year. But, surprisingly, these statistics are not used to criticise the High Court, or to argue that, whatever the outcome, cases that run for so long and at such huge expense must produce injustice for all litigants. The Report mentions the length of High Court hearings only to argue that hearing appeals from the High Court decisions in such protracted cases must absorb a lot of time in the Supreme Court. There is no suggestion that it is scandalous that judges have allowed litigation to be so prolonged. (An Appendix to this article describes one of those cases in more detail.) The Report also describes the number of High Court actions that run for several days, but without speculating whether a different approach to the administration of justice might have reduced the time they absorbed, something that surely all litigants would welcome.
It says in Chapter 4 that Ireland fails in some cases to meet international obligations to meet deadlines, but does not consider whether a sclerotic system might be the cause.
Its logic is sometimes shaky. For example, it says in Chapter 3 at page 28,
“The number of written decisions delivered by the High and Supreme Courts … provides a means of gauging the complexity of their caseload in an individual year.”
If you have stopped nodding your head and started to read critically, your reaction will probably be “no, it doesn’t”. There may be many reasons why judges have taken to writing more judgments than they used to. If a High Court judge does not announce a decision at the end of a case, but “reserves” his decision until later, he is almost obliged to deliver a written judgment when he does make up his mind: the existence of a written text is an implied justification for his not having decided the case on the spot. Indecisive judges will always produce more written judgments than their more decisive colleagues. The fact that they are doing so tells us nothing about the cases they hear. Nor does the length of their judgments. Any practising lawyer knows which judges are decisive and which are not, as well as which are long-winded and which demonstrate the courtesy of brevity. It is disconcerting to find so illogical a statement in a document prepared by senior lawyers.
And this is by no means the only example of shaky logic in the Report. For example, at the top of page 22 (again in Chapter 3) we find …
“an analysis of the operation of the High Court shows that it is required to hold multi-day hearings in respect of a significant proportion of its caseload.”
That cannot be right. The analysis may show that the High Court is holding multi-day hearings, but it cannot show that it is required to. The subsequent decision to extend “case management” to all High Court actions, not only Commercial Court ones, should lead to much shorter hearings. But as I mentioned above, the Report does not mention case management.
A recurring phrase in the Report grated on me as a former lawyer turned mediator. At P. 18, the Report says, “The courts provide a forum in which disputes may be resolved”, and the text continues to use the word “resolved” in relation to court decisions. Judges adjudicate on disputes that come before them. Disputes can be resolved only by the disputants themselves, by discussion and negotiation, sometimes with a mediator’s help, sometimes through lawyers and sometimes on their own. A dispute that is determined by a judicial decision may be legally concluded, but it will not have been resolved. The results of litigation often continue to fester in the minds of litigants for years – that would not happen if they had been resolved. When the authors of the Report speak of judges “resolving” disputes, they misrepresent the function of the Courts. They also fail to show respect for dedicated professional mediators who strive to bring about genuine resolution of disputes.
In Chapter 10 at P 94 we come across what may be the most disturbing statement in the Report, under “Summary and Conclusions”:
“The workload of the Supreme Court is such that it is difficult to focus on its role of developing the law in a principled and authoritative manner in the cases coming before it.”
Before examining those words, let us remind ourselves of what this Report is. It presents the considered view of representatives of our highest judicial authority (one of its authors is now Chief Justice) supported by the legal profession through both its branches, and assented to by the Government. It took two years to produce. But the words quoted above seem directly to contradict Article 15 of our Constitution, which vests in the Oireachtas the sole and exclusive power to make laws for the State. That contradiction is not explained in the Report. Indeed, it does not mention Article 15.
I mentioned above that new Rules of Court had recently been introduced to provide that the streamlining of Court hearings that had been introduced successfully in the Commercial Court should be extended to other divisions of the High Court. That looks like a tentative step in the right direction, as discussed in another article. But one wonders whether this partial reform is a way of postponing, or even avoiding, a fundamental examination of the courts system.
We may also wonder at the sequence. The legal profession, including judges, agitated for a new Court of Appeal, and we voted to give it to them. Only then did they propose to speed up through-put in the High Court. Would it not have been more rational to take these steps in reverse order? That is, the reform of “case management” could have been first introduced for all Court proceedings, including appeals as well as at first hearings. Perhaps with case management, the backlog in the Supreme Court might have been eliminated. If so, the new Court of Appeal might not have been needed.
So, let us summarise how events unfolded. The Supreme Court did not suddenly fall into arrears in doing its job of hearing High Court appeals: the delay built up over years, but nobody did anything about it until it had reached crisis point. When it did, a Working Group was appointed to advise, but it was not invited to investigate and report on how things had been allowed to go so badly wrong. Nor did it aim to do so. It produced some not entirely convincing explanations for the Supreme Court’s failure. However, a group dominated by people from the closed circle of lawyers was never going to produce a report blaming any lawyer, or lawyers in general, for the collapse of the system.
One Minister for Justice set up a Working Group of insiders to report on how the Courts could be made to operate more effectively, and another Minister accepted uncritically a report that, as we have seen, does not stand up to critical examination. The Judiciary and the Government told us to how vote, and we did. The opportunity to examine critically how we are served by our judicial system was lost, and we are unlikely to have another such opportunity for years.
What conclusions can we draw? I suggest the following:
- Judges and other lawyers effectively exercise exclusive control over how the judicial organ of government operates, with the connivance of successive governments.
- Problems in how justice is administered are not addressed until they reach crisis point. It was not until the Supreme Court was two and a half years in arrears in dealing with appeals that the Working Group was established.
- Judges do not allow anyone else to address such problems, and do not seem to become aware of them until they reach crisis point.
- There is nobody in the Courts whose role it is to think strategically and plan for future needs. Nor is there likely to be.
- Lawyers’ economic interests are in direct conflict with those of the rest of us.
- In that conflict, judges have a (possibly unconscious) bias in favour of the cadre they come from and to which many of them are still affiliated. This operates as a bias against those who pay them and to whom they owe their primary duty, the citizens of this State.
- Governments and legislators defer unhealthily to the judiciary.
Fyffes plc v. DCC plc and others.
The facts were as follows. Fyffes and DCC were companies quoted on the Irish Stock Exchange. DCC had a large shareholding in Fyffes and its Chief Executive, Jim Flavin (“Flavin”) was a non-executive director of Fyffes. In 2000, DCC wanted to sell its quoted shares in Fyffes and Fyffes welcomed that plan. In October 1999, Fyffes had told its shareholders to expect increased profits for 2000, but early in 2000 it became clear to the Directors (including Flavin) that 2000 would be a bad year, not a good one, for Fyffes. Stock Exchange Rules required Fyffes to inform shareholders and prospective shareholders promptly by issuing a “profit warning”, so that all would have the same information in deciding the value of its shares, and whether to buy or sell them. They delayed doing so for some months. During that time, Flavin negotiated a sale of DCC’s shares in Fyffes to buyers whose investment showed a huge loss when Fyffes, belatedly, issued the “profit warning”. Although the litigation was between Fyffes and DCC it was essentially about whether those buyers should have to stand their loss, or be compensated by DCC.
The facts were not disputed. DCC’s claim to be entitled to keep the profits it had made by selling Fyffes’ shares and not compensate the people who had bought them, was based on on two main grounds, of which the first was technical and the second can fairly be described as shameless. The first was that the information Flavin had as a Director of Fyffes when he negotiated the sale of DCC group’s investment in Fyffes was not within the definition of “price-sensitive information” in the relevant Act of the Oireachtas. (The High Court agreed but the Supreme Court reversed that decision.)
The second, described above as shameless, was as follows. Anticipating a profit from its sale of Fyffes’ shares, DCC had registered its shares in Fyffes in the name of a Dutch subsidiary, in order to avoid Irish Capital Gains Tax. DCC argued that although Flavin had negotiated all the terms of the sale, the final decision to approve it had to be taken by the Dutch directors of the off-shore subsidiary, they did not have the information he had, and therefore the sale took place between parties on a level playing-field. (We may pause here to note that there was no public expression of disapproval from the Stock Exchange about how two of its quoted companies had flouted its rules and agreed to cheat investors, and that neither seems to have been penalised. Flavin was the only director of either company who resigned.)
According to the Working Group on a Court of Appeal, this action was at hearing in the High Court for 87 days, 17 weeks if you assume a five-day week; that is more than four months. Given that most judges hearing a long-running case take a day per week to deal with other matters, and give only four days per week to the protracted one, it probably dragged on for the best part of half a year. The facts were agreed. The second argument by DCC should not have been allowed to absorb more than half an hour of a judge’s time. The major issue, the interpretation of the Act, could have been dealt with most expeditiously on paper, with perhaps brief oral arguments. In other words, the duration of the hearing should have been measured in hours, or at most days, not in weeks and certainly not in months.