Bar Council members have queried why civil cases requiring witness testimony have stopped altogether in Dublin under level-five restrictions, despite safety protocols, but continue in the rest of Ireland.
Witness cases originally listed from March-June are now listed for the autumn, following call-overs.
'Upset and dismay'
“This has led to upset and dismay, and financial and emotional hardship for litigants who still await the hearing of their claims,” writes McNally.
She also complains of a dichotomy regarding the experience of colleagues at the criminal bar and colleagues at the civil bar.
Criminal barristers have provided positive feedback on proactive support from the judiciary and Courts Service for the resumption of trials up [until the current restrictions], with strict public-health measures in place.
“From our feedback, such ongoing criminal court protocol has become the envy of the civil bar engaged in witness actions,” McNally writes.
But the “decimation” of civil-court hearings, at which witnesses are required to attend in person, is hard to reconcile, she continues.
No comprehensive response has been given for the reasoning behind certain decisions by the judiciary and Courts Service, she writes, despite Bar Council members “clamouring for an in-depth explanation for the cessation of civil-court lists”.
Legal services and the courts have been designated an essential service under the current restrictions.
In her letter, dated 12 November, Maura McNally acknowledges the enormous work by the judiciary and the Courts Service in ensuring that court facilities are fully compliant with public-health measures, despite obstacles and challenges.
As a mechanism, the Courts Service Consultative Forum has facilitated regular engagement with Bar Council members.
McNally writes that since access to the courts by litigants is regarded as essential, the Bar Council wants to assist in continuing trials (both criminal and civil) to avoid the system grinding to a halt.
However, Maura McNally writes that, despite promises of extended court operations, both physical and remote, this has not happened within certain geographical and court jurisdictions.
This is “of grave concern to the Council,” the letter says, since it has made every effort to address the evolving situation for the smooth and efficient running of the administration of justice.
The Bar Council has also suggested the staggering of court lists where the traditional list management caused a build-up of people outside court rooms.
It also wants electronic notices or a ticketing system to avoid unnecessary congregation outside courts.
Parties could also be notified on Twitter, by the sitting registrar, as to their position on the list, the Bar Council says.
The King`s Inns building in Dublin 7 has successfully hosted a number of trials this term and can easily accommodate multi-party civil actions.
McNally writes that terms for continued use are due to be negotiated on 21 December but the treasurer is amenable to discussions on a suitable deal.
The “close proximity to the Four Courts is another advantage of the Inns as a court venue,” the letter states and the building has already been fitted out to facilitate trials.
In addition, local third-party venues such as St Michan’s Church would also be useful, and have been previously been used for Bar Council events.
Phoenix House in Dublin 7 is now also being used for civil-court hearings.
The following specific steps have been taken by The Bar of Ireland:
• Making submissions to the presidents of the various court jurisdictions with ideas for continued court operation,
• Creation of alternative 'safe spaces' to facilitate settlement talks,
• Training and upskilling of members in the use of multiple remote platforms,
• Giving feedback from members and IT specialists on various remote platforms,
• Offering facilities such as the Dublin Dispute Resolution Centre (DDRC) as alternative spaces to enable physical court sittings to continue,
• Submissions as to the use of third-party spaces to facilitate physical court hearings, with witnesses,
• Regarding High Court on Circuit, hiring alternative spaces to facilitate consultations and settlements outside of public court buildings,
• Submissions that certain type of applications/motions be moved to remote-hearing platform (including the Master’s Court, the Registrar’s Court and court motions) where witnesses or lay litigants are not involved,
• Preliminary discussions with third parties to assist in the identification of suitable spaces to facilitate physical court sittings that require witnesses.