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‘Moral argument’ for a greater justice spend – Clarke
Mr Justice John MacMenamin (Supreme Court), Chief Justice Frank Clarke, Philip O’Leary, (Legal Aid Board chair), Attracta O’Regan (Law Society) and Joseph O’Sullivan (Bar of Ireland)

01 Oct 2021 / justice Print

‘Moral argument’ for higher justice spend – Clarke

Chief Justice Frank Clarke told a conference on access to justice this morning that Ireland is near the bottom of the EU league of justice expenditure.

This ‘stark’ statistic cannot be explained away by differing justice systems, he said, because taxpayers in common law systems pay significantly less than those in civil law jurisdictions.

This is because a significant amount of work in common law systems is done by parties and their lawyers, as opposed to court staff, he said.

This has the effect of transferring costs from the taxpayer to the parties, making a strong case for ploughing the saved monies into the justice system, to help those who may not be able to make their case without legal assistance.

Equality before the law

Irish litigants pay more, the chief justice said, asking whether the constitutional guarantee of equality before the law is upheld in the day-to-day operations of the justice system.

“That is perhaps a moral argument in favour of greater expenditure by our Government on measures designed to facilitate access to justice,” the chief justice said.

This is a case where the “right thing” and the “pragmatic thing” align, he continued.

Defendants in civil cases who do not have the means to defend their case with legal assistance, are being denied proper access to justice, he said.

“Parties, whether claimants or defendants, who are forced to settle proceedings on a basis that doesn’t really reflect an appropriate assessment of the weight of their respective cases, and the likely outcomes, can just as much be said to be denied proper access to justice, if the reason why they are forced into that type of settlement is because of the cost of the proceedings,” he said.

Chief Justice Clarke opened the Law Society-hosted conference entitled ‘Access to Justice – Breaking Down Barriers’, (1-2 October) by stating that Irish taxpayers are paying much less for justice and courts, while litigants pay much more than in other countries.

Information

A major theme of the two-day event, which is being streamed to participants across the country, is to ask how to ensure that people have sufficient information to identify and address their legal problems in the first place, the chief justice said.

Alternative ways of resolving legal issues must also be optimised, and the court system made accessible to all, in terms of infrastructure, accessibility, technology, procedure as well as cost.

“It has become increasingly clear to me that there is no single solution or silver bullet.  The range of issues is wide and potential improvement requires action across many strands,” the chief justice said.

The access to justice conference will be one of the last public events hosted by the chief justice, who steps down from office this month.

Minorities, marginalised groups, or the vulnerable obviously run a real risk of having less effective access to justice than others, the chief justice said.

Disparity of resources

Disparity of resources also affects small and medium-sized enterprises, which may be forced to settle on less-favourable terms than a reasonable assessment of their case might suggest, he said.

A well-resourced party may exert undue influence on proceedings, because they can afford to take a certain course, not open to a poorly-resourced opponent, he added.

"That is, in my view, just as much a barrier to justice," the chief justice said.

As chief justice, Clarke set up a small working group with the participation of the Law Society, Bar Council, Legal Aid Board, and FLAC, on the question of access to justice.

There are two strands to the debate – the first is the response of existing institutions, Government, courts, and State budgets, he said.

There are significant existing plans which will widen access to justice, the chief justice said, such as modernising civil procedure, a review of civil legal aid, and modernising the Courts Service.

‘Interlocking themes’ will be examined by the conference, he said.

While this is necessary, it is not sufficient, he continued, since many people may not know that there is a legal aspect to problems they may have, and that the law might provide solutions, or at least an improvement in their situation.

Practising professional can bring their experience to bear, pro bono, in these cases, he said.

Marginalised

“We wondered whether that important resource might not be capable of being harnessed in a wider and more effective way,” he said, particularly in relation to marginalised and vulnerable people.

Any difficulties with staffing and budget for judicial training have now been resolved, he said.

The Law Society conference is organised in conjunction with representative, statutory, and non-governmental organisations working in the justice sector.

Saturday’s workshops sessions will cover the accessibility of the courts and access to legal services for those in marginal and disadvantaged groups,

Speakers include disabilities activist Robbie Sinnott, Senator Eileen Flynn, and Assistant Professor of European Law, Bashir Otukoya.

Gazette Desk
Gazette.ie is the daily legal news site of the Law Society of Ireland