From 1 October 2016 new Rules of Court came into effect in Ireland with the intention of extending “case management”, which had up to then been used only in the Commercial Division of the High Court to most High Court litigation. In the Commercial, Division, judges may intervene in commercial litigation to require the parties’ lawyers to identify promptly the issues to be decided and bring the litigation to a speedy hearing. We do not yet know how this will apply in non-commercial litigation in the High Court, because its President has declined to bring the new Rules into effect until the Government makes additional resources available, but for the purpose of this article we do not need to know the details.
The new Rules were signalled in advance in the Supreme Court’s decisions (9 October 2014) in the case of Thomas Talbot v. Hermitage Golf Club and others. Mr Talbot sued the Hermitage Golf Club or defamation, representing himself. He lost in the High Court, appealed to the Supreme¸ again representing himself, and lost again. One of the Supreme Court judges who heard and dismissed his appeal was Chief Justice Denham, who noted that “today will constitute the 83rd day that the resources of the High Court and the Supreme Court have been directed towards this claim”, and went on to speak about “case management”. Her conclusion was:
“I consider that the Courts would benefit by a further development and use of case management so that the best use may be made of scarce court resources for the benefit of all litigants.”[i]
These are words we might expect from a reforming judge like Chief Justice Denham; that is, someone who looks at a system, often, as in her case, from the inside, sees flaws and sets about trying to eliminate them and improve the system. She is not a radical, meaning someone who asks fundamental questions and willingly contemplates major change. If she had been, she would almost certainly not have become Ireland’s Chief Justice. Reformers are valuable people, but, paradoxically perhaps, where radical change is needed an active reformer can be an obstacle if she – or he – introduces reforms that postpone fundamental change. What might a radical Chief Justice (if one can imagine such a person) have said? Maybe something like:
“Defending Mr Talbot’s claim has required the defendants, the Golf Club, the Golfing Union of Ireland and Mr Eddie Murphy, to be represented by a team or teams of lawyers for a total of 83 days in the High Court and this Court. Mr Talbot, the Plaintiff, has perhaps received justice from these courts: his claim was invalid and has been dismissed. But consider the Defendants. They have been put to enormous expense over 83 days in defending an invalid claim, and had to pay their lawyers for preparatory work done before the High Court hearing. They are unlikely to recover from Mr Talbot what it has cost them, for two reasons. First, their legal bills will run into millions of euro, which few unsuccessful plaintiffs could find. Secondly, irrespective of Mr Talbot’s financial position, our system of “taxation of costs” will protect him from having to reimburse them all they have spent. Nor will they be recompensed for the time they have wasted in having to defend an unjustified claim, or the anxiety it must have caused all of them. That is, perhaps, a sacrifice that all litigants must accept, in order that the Courts may perform their constitutional function of administering justice. But it is clear that the defendants have suffered injustice, in two ways. First, they have had to defend the claim, and second is the inordinate length of time the action has taken, and the excessive amounts it has cost them. The second is a direct consequence of how our Courts operate. They have delivered to the Defendants not justice but injustice. This case is an outstanding example of a phenomenon that is now common, and which must be addressed.
“The fact that the Plaintiff, Mr Talbot, represented himself in court, and how he did so, undoubtedly led to the hearings in the High Court and this one lasting longer than they might otherwise have done. With professional representation, the length of time could have been reduced. That would have mitigated the injustice the Defendants suffered, but would not have eliminated it.
“A citizen must have the right of access to justice without being required to engage lawyers. Justice also requires that litigation move speedily through essential preliminaries to a briskly conducted hearing, irrespective of whether the parties are represented. That is, that the preliminaries are not unnecessarily complicated and that the hearing is not unnecessarily prolonged. If one litigant uses his right of access to the Courts without retaining lawyers to prolong the process unnecessarily, so that other litigants who are represented by lawyers face significantly higher cost, they do not receive justice. This litigation is an example.
“Clearly no court system can provide perfect justice. However, we are bound to do the best we can, and if current machinery demonstrably fails to function acceptably we are bound to address its defects and to modify it or even replace it if need be. It is impossible to escape the conclusion that the injustice the Defendants have suffered has two causes. One is that the Plaintiff’s inexperience and intransigence prolonged the litigation, to their cost. The other is that the machinery itself is cumbersome and time-consuming. We cannot eliminate the first, though there would be merit in making it easier for a litigant in person to present his case and harder for him to waste time. But we can reform the second, the machinery, and given that the constitutional duty of the courts is to administer justice, we are bound to. That machinery must be examined and either overhauled and made more effective, or, if that is not possible, replaced. Review is the first, essential, step.
“It is the duty of the judicial organ of government to initiate it. It might seem at first glance that lawyers, both judges and practitioners, are best qualified to carry it out. But I am convinced by contrary arguments, as follows:
- The system under which the Courts operate is largely a construct of lawyers over centuries, with little if any input from non-lawyers. If we have produced a system that demonstrably fails to deliver justice, will we be trusted to examine it critically and reform it effectively? Should we be? Would that not be rather like inviting a student to correct his own exam paper? Given how judges in recent years allowed arrears to build up in the Supreme Court over years before acting to address an obvious problem, should we assume we can solve problems that arise in the Courts?
- Lawyers, both judges and practitioners, exist to serve the People. It would be incongruous for us as servants to say to our Masters, “We will decide how to deliver the service we owe you.”
- Lawyers traditionally resist change, as the motto of King’s Inns – “nolumus mutari”[ii] accurately, if in this context unfortunately, illustrates. If radical systemic change is called for, they – or we – may be unwilling to introduce it. Any reform lawyers might introduce would be unlikely to command public confidence, even if it deserved it.
- There is a clear conflict between the legitimate aspiration of lawyers (including judges) to earn a living by serving the People, and the interests of the People in having access to justice, including not facing a risk of financial ruin in seeking it. Judges come from the ranks of practising lawyers and many of us (unwisely, some say) continue our connection with our profession of origin after appointment to the Bench. Judges may not be able to adjudicate impartially where the interest of their associates and former colleagues conflict with those of the People we exist to serve. They certainly cannot be seen to do so – as justice requires.
- Ireland is a democracy, where, in the words of the Constitution, “all powers of government … derive … from the People.” Judges must preserve independence on what they decide, but democracy does not authorise them to decide how the People’s Courts will function, and to impose their decision on the People. It is regrettable that this was not recognised when previous reviews of the courts have been established.
“This is not to say that lawyers should have no role in the examination and reform I propose. Their expertise will be essential in trying to produce a court process that will be efficient as well as just. But if a body is established to review the operations of the Courts, as I propose, and if it and includes, as it must, representatives of the public as well as lawyers, the views of lawyers should not prevail over the views of those appointed to represent the public interest, that is, the People. It is the role of judges to contribute to articulating the problem and its possible solutions, and perhaps to veto any proposal that in our view is impractical. But it is not within our role to attempt to solve the problem or to impose our chosen solution.
“I request the other organs of government, the legislative and executive to collaborate with the judicial organ in starting and pursuing a review of how our Courts function, and what changes are desirable, a review that is both overdue and urgent.”
This article will focus on the difference between what Chief Justice Denham said and what I have suggested a genuinely radical judicial thinker might have said. She articulated the traditional assumption that it is the role of judges, perhaps helped by other lawyers, to determine how the Courts should function, and that outsiders’ views are based on ignorance and are therefore irrelevant. Judges are nominated to administer justice, doing so is their responsibility, and that they must accordingly have authority to decide how to do it. They are skilled people and if we invite a skilled operative to do a job we do not dictate to him how he is to go about it, or what tools to use. At least, we don’t if we want the job to be done well. We trust the skilled workman to know how to do it.
That argument has validity. But a doctor who wore a high hat to carry his stethoscope, whose only instruments were a scalpel and a saw, and who relied on rum as his anesthetic would not attract many patients. How the courts operate is a good deal older than the wooden stethoscope of the “sawbones”[iii]. We can choose our doctor but not – at present – how justice is administered.
The words I have suggested the Chief Justice might have used go against a centuries-old tradition of judges and other lawyers deciding how the Courts should function, and the rest of us accepting their decisions. They are also radical in proposing that if judges and other lawyers think they know best and citizens’ representatives think otherwise, the latter should prevail.
Why do the views or assumptions that lie behind the Chief Justice’s words represent the accepted view? There are probably many reasons, some of which are rational (like the “skilled workman” argument discussed above) and some less so. Irish Courts follow English Courts, where legal fictions included that the King could do no wrong (“Rex non potest peccare”), so that his decision on how to run his courts was not open to question, and his subjects should accept it gratefully. That may be one reason that we are uncritical of how the third organ of government functions, while being highly-critical of the Dáil and Government. (That we all stumble to our feet when a judge whose salary we pay enters or leaves the court-room is probably also an echo from history.)
Another reason is probably to be found in how lawyers learn their trade. After academic study, an aspiring lawyer starts to work as a barrister’s “devil” or solicitor’s apprentice, learning how to apply the law. There are many technical rules. For example, when I started as a solicitor’s apprentice, I learned that if a client’s claim was to be brought in the High Court, I must know whether to use a Summary Summons Form 1, a Summary Summons Form 2, a Plenary Summons, or a Petition. I absorbed this information and more, and of course never questioned it. This was how things were done, and since I wanted to be one of the people who did them, I conformed. Moreover, by learning this stuff I turned myself into an expert, who could make a living by charging others for access to his expertise. Probably most lawyers, including judges, learn how things are done at the outset of their careers and accept unquestioningly what they have learnt.
Incidentally, if my client proceeded by way of Petition, its opening words would read, “The humble Petition of [insert name] sheweth…” and it would end “and your Petitioner will ever pray, etc.”. Those servile words derive from a system in which access to justice came by favour of the monarch, not by right. They continued to be used throughout my thirty years as a practising solicitor, for no better reason, I assume, than because they had always been used. Of course, they are incongruous in a democracy, where access to justice is at least, in theory a right, not a concession. The form has since been modernised: “sheweth” is now spelt “showeth”, and “etc.” has been dropped.
Another argument for resisting change is based on what some would call conservatism, and others fear. Under our current system, pleadings precede a trial in which witnesses give evidence orally under oath, and a judge, having listened to them, decides where truth lies, what the law lays down, or, if there is no specific law to guide him, what justice requires. We have used the same system for centuries. It may not always work out well, and the assumption that a judge can see through the falsehoods of a skillful liar every time, or even most of the time, does not stand up to examination. But it has not served us badly, so the argument goes, it is traditional, and it would be dangerous folly to abandon it in favour of another system that might not work as well. This diffused but general feeling and lawyers’ resistance to change are probably among the reasons justice continues to be administered in a traditional way.
Another, of course, is how the legal community, of which judges are firmly a part, benefits from the current system, and might reasonably want to resist change that might benefit the rest of us, at their expense. Under a more effective litigation system, there would be fewer people earning a living as lawyers, and those who did would probably be paid significantly less than many of them are now.
The conservative assumption is certainly embedded in the thinking of our legislators and governments. Neither House of the Oireachtas allows its members to criticise any judge or judicial decision, though some judges make no effort to hide their contempt for the work of legislators. Not long ago, Supreme Court Judge O’Donnell described legislation as “complex, confusing and poorly aligned”[iv]. No TD would be allowed to criticise a judicial decision in the Dáil, let alone do so in such contemptuous language. And, as described in another article parallel to this (which you can read here), the Government accepted without question a Report of a judicially dominated “Working Group” without noticing weaknesses in its reasoning.
Another phenomenon is probably at work. Judges are promoted to the Bench from the ranks of practising lawyers; that is, of people who were expert guides to their clients along the intricate and dangerous path to the successful outcome of litigation. A judge, like any lawyer looking at the law-as-it-is, knows that he or she understands it and knows how to operate it in a way no client, who is not at the coal-face daily, ever can. It is not a huge step for judges to move from “I am expert in the law-as-it-is” to “I am equally expert in another concept, law-as-it-might-be”. All it requires is lack of imagination, and imagination is not a quality most people associate with lawyers. A judge asked to consider how the Courts should serve the community is likely to re-phrase that question as “what reforms in our current system might be useful?” He or she is unlikely to ask the radical question: “If we wanted to design a judicial system that gave the best possible service to the community that supports it and seeks justice from it, how would we go about it?”
Different citizens might give different answers to that question. Here is one based on the aim of ensuring that all litigation should be managed from start to finish in the shared interests of the litigants in receiving justice and receiving it as quickly and as inexpensively as possible. This aim might well produce something like the following:
- Most litigation would be adjudicated in the first instance by a single judge, as at present, and so might some appeals, where the issues did not require the attention of three, five or seven judges. This should allow each judge to be more productive, and reduce the number we needed to employ.
- More litigation would probably be decided by a jury than at present.
- The issues for the judge to decide would be set out clearly on a single document, which for convenience I will label “The Statement”. The Statement would say who the parties to the litigation were, what factual issues were agreed and what issues were disputed, what “story” each side wanted to present, and what witnesses or other evidence they intended to produce. It would also state whether either side intended to produce documents, and, if so, specify them. Finally, if there was a dispute between the parties about what legal principles applied to their dispute, each would set out their arguments in the Statement, first in summary and then in detail.[v]
- The judge in charge would require the parties to produce the Statement speedily, and would not tolerate delay caused by the lawyers: the rule would be “if you’re too busy to do this job briskly, hand it over to someone else who will”, and it would be applied strictly.
- The judge would have studied the Statement before the hearing, would not allow either party to present evidence or arguments not contained in it (justice might require some exceptions to this general rule) and would be intolerant of any attempt by an advocate on either side to repeat orally material contained in the Statement, which the judge would already have studied. This would exclude long opening oral statements, and save time at the hearing.
- Oral argument would not be required in all cases. The presiding judge would decide whether the written submissions in the Statement were enough for him or her to decide the issues, or should be supplemented. Competent lawyers should be expected to cover in the Statement all the points they wanted to make.
- Judges would be open to the possibility of penalising a plaintiff who pursued an unjustified claim, a defendant who insisted on defending an indefensible one, and, generally, any party who had failed to settle a claim that should have been settled. Such sanctions should not necessarily be confined to the litigants but might be imposed on their representatives.
- Sanctions might similarly be imposed if a judge’s time had been wasted in considering non-issues.
- When a judge had decided the issues, the text of his (or her) decision would be attached to the Statement, so that if either party wanted to appeal, the Appeal Court judges would receive, as a single document, the Statement and the original judge’s decision.
- There would probably continue to be a cadre of self-employed lawyers, not paid by the State and independent of its influence, and lawyers who worked on salary full-time for the State. It should be made easy for an individual to transfer between being employed and self-employed. The current two-tier system of barristers and solicitors should be critically examined and retained only if it was shown (shewn?) to serve the People better than a unified profession.
- Judges would accept a primary duty to all litigants to make the preliminary process of setting out the issues as simple, as cheap, and as speedy as possible, and to conduct the hearing as speedily and as cheaply as possible.
- That duty would include controlling the charges of lawyers on each side, not permitting them to charge at excessive rates or to charge their own clients or anyone else for unnecessary work.
- Judges would recognise that their primary duty was not to lawyers but to their clients. They would also recognise that if the Oireachtas, the representatives of the Irish People sitting in the State’s sole and exclusive law-making body, considered that a system that had evolved under judicial control needed to be reformed or replaced, the Oireachtas’ view would prevail.[vi] That concept should be subject to one exception. If judges concluded that legislation passed by the Oireachtas would prevent them from performing their constitutional function of administering justice, they would be entitled to declare that legislation unconstitutional. Indeed, they would probably be bound to do so.
- If it seemed that judges’ continuing membership of a lawyers’ professional body might affect their ability to put the clients’ interests first, they should discontinue their membership.
- Judges would be active in supervising lawyers’ charges and other expenses, with two objectives in mind. First and most important would be to ensure that access to justice was within the reach of most citizens. Second would be to ensure that while practitioners earned a decent livelihood, and intelligent people would not be discouraged by poor prospects from studying law and becoming practising lawyers, no practitioner should be so well-paid that he or she might feel becoming a judge would involve financial sacrifice. Lawyers’ aspiration would be to serve the public, not, as it now seems for many, to become “seriously rich”. (It should be possible to say this objective had been achieved when lawyers became respected members of our community, not, as now, mostly despised or envied or both.)
- We might perhaps add one more. A system by which disputes on questions of fact are decided by a judge based on his or her “life experience” (usually a euphemism for “prejudice”) after lawyers on each side have tried to discredit witnesses called on by the other is clearly irrational and deeply unsatisfactory. We will probably have to live with it until a better one can be devised, but we should seek one.
No lawyer would welcome any such reform, and all judges are lawyers. Their lives as practitioners before they became judges involved hard work, highly paid. They have seen a huge increase in the number of lawyers, over the past, say, fifty years, and in the incomes of those at the top of the tree. Lawyers’ professional bodies, of which judges continue to be members after they are appointed – scandalously, in my view – would fight any such reform. And they would do so from positions entrenched not by years but by centuries of domination in decision-making about how legal services are to be delivered.
But Ireland is a democracy, and the will of the People must ultimately prevail if it is felt strongly enough and pursued diligently enough. If enough Irish people are persuaded that they are being short-changed by their courts system and decide they want to be served by a better one, it will happen, even though this may be the first country where it does happen. Popular will is, ultimately, all that is needed to effect democratic change.
[i] The full text can be found at  IESC 57
[ii] nolumus mutari, latin for “We shall not be changed”.
[iii] “Sawbones” is a 19C colloquial term for a doctor of physician. See the definition here.
[iv]  IESC 72. Found here.
[v] As well as enabling the judge to get to the heart of the issue beforehand, this approach would require the lawyers on both sides to collaborate in preparing the Statement, and push them towards settlement discussions, in a way the current system fails to encourage.
[vi] An exception, probably the only one, would be that if the Oireachtas legislated to impose a system that prevented the judicial organ of Government from performing any of its Constitutional functions, a Superior Court judge might lawfully invoke the Constitution to declare that legislation unconstitutional.