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Model court diversion tactics on Press Council system says Chief Justice
Chief Justice Frank Clarke and Press Council chairman Sean Donlon Pic: Leah Farrell, RollingNews.ie

29 May 2019 / courts Print

Judges must be let stay on past retirement – Clarke

Judges must be allowed to work on past their retirement date, Chief Justice Frank Clarke said this morning at the launch of the 2018 Press Council annual report.

He said that Ireland is unusual in that the day a judge retires, they lose all power.

“They can’t participate or give judgments in cases which were argued before them. They can’t make ancillary orders,” he said, pointing out that this is not the case in Britain.


This affects operations in that the court is effectively 'one-down' for several months ahead of a judge’s retirement, he said.

This could be corrected with a simple legislative amendment.

The Chief Justice said he is now “reasonably confident” that the medium-term needs for judicial numbers will be examined by a high-level Government committee.

“The review of the number of judges needed has rarely been particularly objective or detailed,” he said, with no proper analysis done of future litigation trends.


The Chief Justice said these changes are part of a range of interlocking reforms needed in the courts system.

Defamation cases would benefit from narrowing the issues in advance of an expensive trial, he said.

He said Government needs to address inadequate legal aid levels since costs are transferred to the parties in a common law system, unlike the more inquisitorial continental civil law system.

“The Irish taxpayer is saving a fair amount of money by being in a common law world,” he pointed out.

Ireland has the lowest number of judges per head of population in the EU and this country’s legal system places the second lowest burden on taxpayers as a percentage of GDP.

Germany has 22,000 judges which, per head of population, suggests Ireland should have 1,300 as opposed to the current 166, the Chief Justice said.

There is more than a grain of truth in the line that only paupers and millionaires can bring cases to the Four Courts, he conceded.


He praised the Press Council's mediated solutions to complaints about the press for diverting disputes away from unnecessary litigation and thereby saving both time and money.

Obviating the necessity to go to court is always good for courts, he said, because it frees up time to deal with cases which have to have to come to court.

He pointed out that the right to run a case to its end in court is not an absolute right if other less-invasive means of dispute resolution are available.


“It seems to me that the Press Council three-stage approach provides a very good model for that kind of diversion.

"First, a soft mediation…second, a more structured mediation if the first fails. And third, the entitlement to go to a formal adjudication process.

“There may very well be other areas where that broad model may be applicable,” he said.

He said the Press Council methodology was undoubtedly quicker and cheaper than going to court as means of resolving important disputes about treatment by the media.

“Programmes that minimise the need for people to go to court have to play an important part,” he said.

“The courts must always be the ‘backstop’,” he said since people are entitled under the Constitution to go to court to have their rights vindicated.


“I’ve often felt, curiously, that two of the areas most amenable to successful mediation were commercial law and family law.

“In both cases, the issues often involve people who have to continue to have some relationship,” he explained.

“There is a limit to what courts can do in those circumstances,” he said.

Court IT budget cutbacks slashed funds from €9m to almost €4m during the Great Recession, but more money for technology can greatly streamline court processes, he said.

Current court software is no longer supported by manufacturers because it is so old, he said.

“Most judges would love to be able to use better IT,” the Chief Justice said.

He said the board of the Courts Service has approved a ten-year vision for IT upgrade which will integrate details of garda prosecutions with court computers, eliminating double keying-in of information.


He said the new courts of the Irish Free State were established in June 1924 and significant progress, in human and other resources, towards a dynamic and evolving IT system is the Courts Service goal for marking the centenary of that milestone.

“We have been frustrated by the fact that legislation, that everyone agrees is a good idea and is not controversial, has been very slow in its enactment,” he complained.

“Some of the progress we would like to make is being held up because necessary legislation hasn’t been put in place,” he said.

Good reputation

A fit-for-purpose courts system in Ireland is a key part of capitalising on the good reputation of Ireland’s justice system abroad, the Chief Justice said.

If we are to bid for international work post-Brexit, then court processes must be modernised so that there is no legitimate criticism of Ireland for having outdated or inefficient procedures, the Chief Justice said.

Press ombudsman Peter Feeney expressed his dismay that journalists are now expected to write four to six stories a day in a pressurised online environment and said this is one reason for inaccuracies reaching publication stage.

“It’s a frightening thought,” he said, saying the risks involved are enormous.

The answer isn’t to do less journalism, he said, since Irish citizens need newspapers in order to be properly informed.

“Journalism is critical to democracy,” he said adding that he worried that information acquired online is more fleeting and more opinion-driven than that gleaned from print.


‘”There is constant struggle in newspapers, national and local, to maintain standards at present, at a time when resources available for proper journalism are reducing,” he said.

“This is a concern and a direct consequence of reduced resources, due to declining circulation and declining commercial revenue, as the social media giants hoover up so much of the online advertising revenue,” he continued.

Huge threat

The way in which some social media organisations take their material from newspapers without paying anything is a huge threat, compounded by the way they take commercial revenue as well, he said.

Feeney said he had huge sympathy for proprietors, editors and journalists who still have to fill a newspaper edition with much reduced resources.

The level of submissions to the Press Council Ombudsman in 2018 was largely on a par with previous years, with 30 formal decisions made, ten complaints upheld and 15 declined. There were four cases where the publication had taken sufficient action to mitigate the complaint. In one case there was insufficient evidence to reach a decision.


Privacy was breached in five of the ten cases upheld, the truth and accuracy requirement breached in three cases, and in one, the opportunity to respond was not given to a person criticised in an article.

Excessive detail on the means of a suicide were the subject of another complaint.

Many complaints are dealt with through conciliation. The Ombudsman said that members of the public are generally quite happy with this, once their complaint is aired.

Declining jobs

Feeney said that nine or ten third-level colleges are now offering training in media studies which is a "large number" in an industry with a declining number of jobs.

The Press Council provides a fast, fair and free and acceptable alternative to lengthy and costly court actions for those who are unhappy about items that appear in the press, whether in online news outlets, newspapers or magazines, its chairman Sean Donlon said this morning.

The Press Council is independent of both the press and Government, he said, speaking at the launch of the body’s annual report.

The Council handles roughly 300 complaints each year and receives the “full and full-hearted co-operation” of newspapers and editors, Donlon said.

Judicial review

“Not once in our ten-year history has either a newspaper or a complainant sought a judicial review of one of our decisions,” Donlon said.

“This is good news for the courts system, if not for the Bar library,” he said.

Peter Feeney thanked member publications for offering space in print to spread the message to readers about the Council’s independent complaints handling service.

Chairman Sean Donlon paid tribute to the high standing of the Irish judiciary as an important element in Ireland’s overall reputation at home and abroad, on which so much depends.

“We in Ireland have been extraordinarily well-served by the judiciary since the foundation of the state,” Donlon said.


However Donlon echoed the Chief Justice's complaint about the pace of legislation in Ireland.

“We have been waiting for five or six years for the reform of the Defamation Act 2009, which has within it a clause requiring its review in 2015,” he said.

“There are huge problems with the Defamation Act,” Sean Donlon concluded.

Gazette Desk
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