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Judges facing more work for the same money – Chief Justice
Chief Justice Frank Clarke Pic: Cian Redmond

20 Nov 2020 / courts Print

Judges facing more work for same money – Clarke

Chief Justice Frank Clarke said yesterday (19 November) that increased commercial litigation in Ireland post-Brexit would mean that Irish judges would do more work for the same money.

However, more international litigation will mean more work and money for Irish lawyers, he said.

Speaking at an Ireland for Law webinar, co-sponsored by the international section of the New York State Bar Association, the chief justice (pictured) said the judiciary was strongly behind the campaign to bring more legal work to Ireland.

Ireland's increasing role

Ireland for Law chair, former Taoiseach John Bruton, addressed the webinar on how international business should use Irish law, and Irish courts, for corporate restructuring, intellectual property and data protection, and derivatives matters.

The chief justice said Ireland is in a strong position and had played an increasing role within the EU, since Brexit, in organisations that represent the senior judiciary across member states.

The reason behind that is because there is a recognition that Europe has to have an involvement with the common law, because of trade links with the US, Canada, Australia and India.

Ireland now has a role on almost all EU representative bodies, he said, because the UK is no longer there to share the load, and because Ireland is perceived as more enthusiastic about the European Union.

Ireland has now taken up a lot of the slack left by the departure of the UK, he continued, and this shows the esteem in which the Irish courts and judiciary are held.

Improved procedures

The chief justice said that Ireland had a lot to offer as a legal forum and that future developments would enhance that attractiveness — namely reform of civil procedures, as laid out in the Kelly report.

A beefed-up Courts Service technology budget will also allow for significantly improved procedures and greater use of digital systems, he said.

An interesting straw in the wind for the post-Brexit world is that a large number of UK lawyers have used the final days of EU membership to become Irish-registered lawyers.

“It shows that they think an EU badge is an important thing to have,” he said.

An increase in litigation post-Brexit will require more High Court judges, he pointed out.

However, many top-quality barristers and solicitors have applied for the bench in recent years, he continued, and will cope well with an expected increase in the amount of international litigation.

This expertise will be coupled with better procedures, and much greater use of online filings and remote hearings, he said.

Dublin's advantages

Dublin will have competition from France, he pointed out, since the Paris commercial court is now prepared to hear cases in English, while the Dutch courts are also interested in providing litigation services in a common-law mode.

While other countries may sell themselves as a law venue of choice, Ireland has innate advantages, as an English-speaking common-law jurisdiction, he said.

“It is very much the view of the Irish judiciary that we would welcome an increase in the amount of international litigation coming through the Irish courts, and we are strongly of the view that we’ll be able to handle that litigation very well,” he concluded.

Speaker Jonathan Newman SC told the webinar that Brexit has had a centripetal effect, in that UK lawyers are now more outward-looking and will suggest that their clients consider Dublin as a forum for law.

John Cahir, of A&L Goodbody, said Data Protection Commission investigations on security and data breaches were a focus for many tech clients.

Online advertising is another focus of DPC investigations, and this is a hot issue for personal data, he said.

Judicial infrastructure

Sean Barton of McCann FitzGerald told the webinar that the increased demand for legal services was a follow-on from Ireland’s success in attracting pharma, aviation leasing and tech investment, among other sectors.

The Ireland for Law campaign places this country as the natural legal forum for those who want to do business in Europe, given its cultural and language affinity, he said.

Government agencies have smoothed the process of inward investment, he said, and the legal strategy is aligned with the overall State strategy, to have the judicial infrastructure to enable disputes to be resolved quickly and efficiently.

On commercial dispute resolution, Sean Barton said the Irish pool of lawyers is small, and often conflicted, so the practice has already been to use international arbitrators.

“Many commercial arbitrations are done through Zoom anyway,” he said.

There is a push to attract arbitrations where there isn’t a connection to Ireland, he said.

Peggy O’Rourke of Arbitration Ireland spoke about efforts to promote Ireland as a seat for arbitration.

Questions on document storage

Arbitrator Bill Holohan SC told the webinar that he had heard video evidence in arbitration cases from as far away as Singapore, long before COVID.

Complex judgments in the Commercial Court, for instance on restructuring, will advance the jurisprudence very quickly, with a high level of specialisation in evidence from the judiciary, the webinar heard, with many patent and tech cases being heard.

Diane O’Connell, of the international section of the New York State Bar Association, asked how documents can be shared, in line with varying privacy laws in different jurisdictions.

Sean Barton responded that Ireland has long used tech-assisted document review for discovery, but that cloud storage also throws up philosophical and conceptual questions about where documents actually live.

Document jurisdiction

Barton advises clients to think carefully about document management and the jurisdiction in which their documents are stored.

GDPR is a thorny and difficult issue and moving data into Europe is to be avoided if possible, he said.

Manage that exercise, and establish whether there a reason for documents to be moved, he advised.

Processes should be designed to make matters document-light, he also suggested.

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