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Fear of financial ruin deters recourse to courts – Kelly

07 Dec 2020 / courts Print

Fear of financial ruin deters recourse to courts – Kelly

The 500-page Administration of Civil Justice Review Report has made 90 recommendations, including streamlining procedures, limiting adjournments, reducing delays in bringing cases to hearing, and improving access to legal aid in the civil courts.

Following a decision of the Government in March 2017, a review group was established to examine and suggest reform of the administration of civil justice in the State. The Administration of Civil Justice Review Report is its assessment of these matters.

In his introduction, Mr Justice Peter Kelly quotes Lytton Strachey about the worry that his report would achieve “nothing but the concoction of a very fat blue book on a very high shelf”.

Affordable measures

To offset this fear, the review group decided to produce recommendations that would be practical, affordable, and capable of implementation with as little fuss as possible, the former High Court President writes.

Resorting to primary legislation to effect change was avoided as far as possible.

The group achieved consensus on every matter, except litigation costs.

The majority proposals recommend the use of non-binding guidelines as to costs levels. The minority recommends prescribing maximum costs levels, with suitable safeguards to deal with exceptional circumstances.

Mr Justice Kelly himself writes that more radical measures will be required to achieve the desired results, saying: “Ireland is a high-cost jurisdiction in which to conduct litigation.”

“That fact may amount to a denial of justice for individuals and businesses who are deterred from having recourse to the courts for fear of financial ruin.

“It also has a negative effect on attracting international commercial litigation to what is the only English-speaking, exclusively common-law jurisdiction in the European Union, post Brexit. 

Great impact

Mr Justice Kelly writes that the greatest impact of the review will stem from shake-ups in discovery, judicial review, and litigation costs.

The review group recommends the automatic discontinuance of cases that have not been notified as ready for trial within 30 months of their commencement.

Cases automatically discontinued would be open to being reinstated by the court on certain terms.

Court officers should preside at case-management conferences, the review says. 

Speeding up court business

The review group also recommends solutions to allow judges spend more time hearing cases, and thereby speed up court business, by hiring staff to handle procedural matters.

The review group proposes that a single originating document – the claim notice, to include a detailed statement of claim – should replace the various types of originating document currently in use in the various first-instance jurisdictions.

It also recommends simplification of language and terminology in the rules of court.

The review group recommends the establishment of a specialist list for clinical-negligence actions; and a dedicated list, as an adjunct to the Commercial Court, to determine intellectual-property and technology disputes.

Periodic payment orders

For periodic payment orders, it says the Harmonised Index of Consumer Prices should be replaced with a new index that takes appropriate account of health-care-sector inflation.

The review group recommends abolition of the current remedies of discovery, inspection and production of documents, and their replacement with a new remedy called “production of documents”.

It wants fresh thresholds for judicial review, and has recommended primary legislation to introduce them.

Primary legislation should also preclude an entitlement to apply for judicial review for deficiencies such as clerical or typographical errors, and unintentional slips or omissions.

Multiparty actions

The review group recommends rules of court for a comprehensive multiparty-action procedure in the High Court and Circuit Court following the model of the Group Litigation Order procedure in England and Wales.

The review group did not favour the permitting of contingency fees or a relaxation of the current prohibition on linkage of the amount of client costs to the amount recovered.

It was concerned that the permitting of contingency fees would tend to encourage speculative litigation and contribute to a ‘claims culture’; and that repeal of the current prohibition on charging costs as a percentage or proportion of the amount recovered would encourage inflated claims for damages.

‘Appropriate balance’

“Having concluded that the conditions on which the courts have made protective costs orders available strike an appropriate balance between the need to facilitate access to justice in cases engaging the public interest, and the need to avoid incentivising risk-free litigiousness, the review group did not recommend that any change be made by legislation to the existing balance of interests in the area of costs-shifting,” the report says.

The arrangements for naming and the vetting of suitability of a next friend or guardian ad litem to act on behalf of a child in litigation should be standardised and strengthened, it said.

And the report takes on board concerns expressed by the Law Society about the Abhaile mortgage-arrears-resolution scheme.

Other recommendations

Other recommendations include:

  • Video conferencing should be promoted for the taking of expert and other evidence,
  • An online information hub should be created to provide dedicated legal and practical information for those considering bringing proceedings without professional representation, and
  • The Courts Service Customer Charter should be reviewed.

 Commenting on the report, Justice Minister Helen McEntee said this morning (7 December): “The recommendations in the report are an important step in reforming our civil justice system and increasing the opportunity for people to access civil-justice services.”

An implementation plan will be published by next February.

The review group comprised 16 members:

  • Mr Justice Peter Kelly (chair, and former President of the High Court),
  • Mr Justice Liam McKechnie (Supreme Court),
  • Ms Justice Maire Whelan (Court of Appeal),
  • Ms Justice Leonie Reynolds (High Court),
  • Judge Francis Comerford (Circuit Court),
  • Judge John Brennan (District Court),
  • Kevin Fidgeon (Courts Service),
  • John Shaw (Department of An Taoiseach),
  • Liam Gleeson (Department of Public Expenditure and Reform),
  • Oonagh Buckley (Department of Justice and Equality),
  • Feargal O’Dubhgaill (Office of the Attorney General),
  • Ciara Murphy (Chief State Solicitor’s Office),
  • Paul McGarry (Bar Council),
  • Stuart Gilhooly (Law Society),
  • Mary Kelly (secretary, Courts Service), and
  • Nicola Kelly (secretary, Department of Justice and Equality).
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