Investment underpins administration of civil justice

The Bar welcomes the publication of Kelly Report –  resources sorely needed it says

The Bar of Ireland welcomes the publication of the Report of the Review of Administration of Civil Justice (Kelly Review), which has since early 2018, considered a wide number of reform initiatives along with the experience of similar overseas jurisdictions. 

The Report represents a comprehensive telling of how the litigation system currently works, along with recommendations that require continued stakeholder involvement, legislative input, as well as changes to Court policy.

The Bar of Ireland made a range of submissions to the Review Group relating to a wide number of areas of practice and procedure and we look forward to actively participating in the Implementation Group, and that reform proposals are carefully considered and fit for purpose.

According to the Chair of the Council of the Bar of Ireland, Maura McNally SC, practitioners have for many years observed that the processes and procedures of the court could be better streamlined to improve both the administration of cases as well as efficiency and speed in accessing justice for citizens.  Careful consideration, such as undertaken by the Kelly Review, as well as ongoing and further analysis of reforms, will greatly assist in balancing the necessity for fair and clear procedures with effective and constitutionally sound justice, for all parties.

In welcoming the Report, Maura McNally SC said

“The Bar is confident that only with appropriate resourcing and continued analysis, this Report can give rise to productivity and performance gains for all involved in the judicial system, while also ensuring that existing reforms are permitted to establish. 

With 90 recommendations, across 12 Chapters, this 474-page Report has provided focus to all those committed to access to justice and sound administration of our justice system, on matters relating to technology, court users and innovations such as Multiparty Actions.

The resource context of the Irish court system cannot be divorced from the issues considered by the Review Group.  With one of the lowest investment rates to the court system (per GDP) in the European Union, this has manifested itself in an under-resourced ICT capability and the fewest number of judges per capita. Procedural reform is an objective the Bar supports, however it must to be matched with the necessary resourcing: human, technological and financial.

Maura McNally added:

Effective legal aid, better case management, adoption of technology, more judges –  these are clear determinants of costs, and greater efficiencies that accrue to citizens and businesses.

Ireland only spends €56 per inhabitant in its judicial system budget. When compared to other European countries in the same GDP bracket as us, they are spending €197 – €220 per inhabitant. Notwithstanding the differences between Civil and Common law jurisdictions, this is an alarmingly poor public service investment and clearly the State is shifting the cost burden of the judicial system to the user.  

The Chief Justice has drawn attention to this on numerous occasions; indicating that a civil-type jurisdiction could cost the State up to half a billion euro annually.

Technology

In particular the Bar of Ireland welcomes the analysis devoted by the Review Group to the use of technology in court practice.  The response to Covid-19, on the part of practitioners, the Court Service and the Judiciary, has been heavily technology-led.  Unfortunately, this has also been constrained by ICT resourcing, capacity building and the speed at which the professions have adapted.  The recommendations in the Report in the area of e-litigation and scaling the IT infrastructure are welcomed.  Technology will play a fundamental role in supplementing the Court activities and in providing greater access to court users.

McNally said

Along with the Government, the Judiciary and other stakeholders, we are embarking on promoting Ireland as a center for  litigation post-Brexit.  Part of that must entail being adequately tech-resourced; along with the necessary changes to procedures that arise from the use of technology.  Reduction in processing times, speedier interactions, all create a dividend for clients and the State in the form of reduced costs.

Concerns

The Report will be considered by the Council of the Bar of Ireland, and the profession in greater detail.  On an initial assessment, the Bar expresses concern that recommendations for reforms will need to be carefully benchmarked against the fundamental and core constitutional tenets.  

For example, in the sphere of judicial review, the Review Group has recommended that the threshold for leave (the standard that must be reached for the High Court to permit the challenge proceed) be modified to include a requirement that the applicant show a ‘reasonable prospect of success’.  In many cases, this may cause difficulty in practice, and indeed work in the favour of the State where important community and national issues require review.

The Bar Council considers in the circumstances that this example of the Review Group’s Recommendations reforms of a legal technical nature will have to be carefully assessed before implementation.

Costs

McNally said

“The issue of legal costs in Ireland continues to undergo significant consumer-focused reforms.  That the Kelly Review endorses and supports the initiatives contained within the Legal Services Regulation Act 2015, is a positive and must be allowed to establish and prove themselves. 

A crude and rigid approach the management of legal costs can give rise to a number of perverse incentives impacting negatively on litigants and creating an inequality of arms, particularly those litigating against the State and well-resourced parties.  Allied with a starved legal aid system, serious concerns in respect of rule of law and access to justice arise where litigants are effectively dissuaded from vindicating their rights

Recent consumer reforms under the 2015 Act include:

• Part 10, which sets out the duties of solicitors and barristers when charging and billing their clients. These new rules came into force on 7 October 2019, and also include a regime for determining and resolving disputes in respect of costs.

• The establishment Office of the Legal Costs Adjudicator has been reformed, including the provision of a publicly available register of determinations, that assist both client and practitioner.
  • Section 150 empowers consumers to make informed decisions as to the cost of legal services, as well as supports a competitive legal services market.

The Kelly Review has considered the issue of costs in depth, and the technicalities that apply.  By a majority, it has advocated that the new costs regime in place since October 2019 should be assessed once fully effective, but in addition supports the drawing up of guidelines for the assistance of parties and their representatives, by reference to individual items that could be outlined in a table. The obligation to produce such guidelines could be achieved with minimal legislative intervention, with the function assigned either to the Legal Costs Adjudicators or the LSRA (with input from the former). Those guidelines should be non-binding but intended to improve the certainty and transparency of the adjudicative process.   

As noted above, the Council of the Bar of Ireland looks forward to actively participating and engaging with Implementation Group, the Judiciary, Courts Service and the Department of Justice and Equality on the published recommendations.