The court system in Ireland is facing up to the need for a major overhaul. The current litigation process is hampered by serious delay, bad organisation and the cumulative effect of an ageing court structure that has seen little change since it was established in 1924.
The model for reform is obviously the radical overhaul of the UK's Civil Procedure Rules, undertaken by the then Master of the Rolls, Lord Woolf and introduced in April 1999.
Stewart Matheson, a litigation partner at Matheson Ormsby Prentice, says: “It's very difficult to say whether reforms here will take the same shape as the Woolf reforms. They've been in place for two years now, and their full lessons aren't yet apparent. What we'll probably do is take the best elements out of that system and ignore the worst ones.”
Areas of particular concern include case management, one of the vital constituents of the UK reforms.
Owen O'Sullivan, a litigation partner at William Fry, says: “Case management at the moment is left very much to the individual judge – it's left entirely up to them whether this is the way they want it done.”
It is hoped that reform to case management procedures, such as the incorporation of a fast-tracking system and greater judicial control, will alleviate delay – the most common complaint levied against the Irish court system.
“We could see case conferences and judges taking a proactive role in setting deadlines for things like the exchange of documents,” says O'Sullivan. “It's likely that trial lengths would be affected by this and that the whole process would be accelerated.”
Another change is bound to be the introduction of compulsory alternative dispute resolution (ADR), mediation or settlement meetings. This should cut down on the number of cases reaching the courts and so free up court time.
Matheson says: “It's still too early to say, but the main benefit of the Woolf reforms will probably be the front-loading of preparation for litigation for more informed and earlier resolution or the settlement of cases through ADR and mediation.”
The front-loading of litigation inevitably means front-loading costs, serving as another disincentive to potential litigants. O'Sullivan says: “ADR processes take some of the burden off the courts, but in mediation, from a client point of view, there is a lot of cost incurred with no guarantee that it will succeed. In some cases, knowledge and materials gathered for the mediation process can be reused in the case if it makes it to court. But it will make clients think harder about whether to issue a writ and will probably lead to less frivolous claims being issued.”
Many believe that reform should be even more far-reaching than the Woolf reforms and be extended, for example, to the criminal courts as well. Chief Justice Ronan Keane made a speech to the Law Society in University College, Cork, on 23 March, highlighting not only the problems of delay in the system, but the anomalies of a system which distributes serious crime in the Republic on an irrational basis. “It's never been explained why, if murder and rape can be tried only in the Central Criminal Court, the same does not apply to, for example, kidnapping, manslaughter, robbery with violence and massive fraud. At the appeal level, there's no rational justification for a court of criminal appeal with a constantly changing membership, composed as it is of one Supreme Court judge and two High Court judges,” said Judge Keane in his speech.
Judge Keane is calling for a re-examination of the existing court structure and a significant increase in the number of judges, in a country that currently has the lowest number of judges per head of population in the EU.
Some steps to improve efficiency have already been taken. For example, a five-year plan to overhaul the courts' IT infrastructures, costing IR£53m (£42m), was recently given the go-ahead. Also this year, a “Drugs Court” to combat the growing drug addiction-linked crime problem in Dublin's North Inner City, will be given a trial run.
Willie Day, a partner at Dublin firm Arthur Cox, is confident that the Irish system is on the right road. He says: “My perception is that things have already speeded up. We've appointed more judges, some elements of case management are already being exercised and it is indicative across the board that the waiting lists are coming down.”
Managing partner at Arthur Cox Eugene McCague adds: “Whether we go on to get a radical approach like the Woolf reforms, I don't know, but I'd be surprised if complaints of delay are anything near the level that they used to be.” n