Lawyers may like courts but ordinary people don’t

Legal aid is necessitated in a wider range of cases in a common law system because the party takes on a much greater burden in taking a case, the Chief Justice said this morning.

Speaking at the FLAC Access to Justice conference at Trinity College Dublin this morning, Frank Clarke said that international instruments will make much more significant progress in widening legal access through legal aid in Ireland.

A key element has to be legal aid, though it is by no means the only piece of the jigsaw.

The Chief Justice said that, through contact with his EU Supreme Court counterparts, he has gained a greater understanding of civil and common-law methodologies.

“One of key differences is that the common law places much greater demands on the parties,” he said.

Consequences

“That has consequences if you look at expenditure figures on justice of GDP, which is less than 2% in Ireland.

“The figures are clear enough to show that there is significantly lower expenditure by taxpayers by having a common-law system.

“Undoubtedly, the taxpayer saves significant money by a common-law system, which places some of the burdens on the parties,” he said.

Roles that are conducted by judges under civil law, are outsourced to the parties in common law, he said.

“This creates an additional layer of barriers to access to justice,” he said.

An EU justice expenditure scoreboard shows a typical civil-law system spends three times as much as common law, the Chief Justice added.

Expenditure

Total courts expenditure in Ireland is estimated at under €200 million a year.

“That suggests a civil-law system would cost €500 million on a crude view,” he said.

The Irish taxpayer is saving the Exchequer €300 million a year, which is “a powerful argument for a significantly expanded system of legal aid”, the Chief Justice said.

Even a fraction of that sum would make the Legal Aid Board very happy, he quipped.

“Good work had been done”, he said, in relation to criminal legal aid in this country, but not so much on the civil side.

Supporting the administration of justice was not the same thing as supporting access to justice, although the two were interconnected, he continued.

On the proposed Family Law Complex at Hammond Lane in Dublin 7, the Chief Justice said that the figures didn’t stack up, given the allocated Department of Justice budget for the project.

A total of €70 million had been committed already to policing infrastructure, leaving €80 million to develop the site.

Figures

Efforts to provide more funding had failed, and the figures didn’t add up, he commented. Even the proposed new Supreme Court building had been removed from the project, he said.

The Courts Service had examined the possibility of building only a family law complex, but that would still be outside the available budget, the Chief Justice said.

He praised the planned complex as innovative, in that all services relating to family law would be under one roof.

One side of the building would provide facilities to try to solve family law problems without going to court, through mediation and negotiation.

If these efforts failed, the case would proceed to court, but stay under the same Hammond Lane roof.

Solution

“A fair, acceptable and quick method of solving family-law problems is justice as well,” the Chief Justice said, adding that. a negotiated, mediated solution was a better outcome, even if it meant less work for lawyers.

He said he hoped that Mr Justice Peter Kelly’s review of civil justice would provide significant improvements that would be cheaper and more capable of being accessed without lawyers.

Separately, the Courts Service has commissioned consultants, and hopes to adopt a major plan to greatly improve the introduction of IT within the next month.

While lawyers like court, ordinary people don’t, and find it an intimidating and hostile place, Andrea Coomber (a British access-to-justice reformer) told the conference.

Ms Coomber spoke about how court-based IT innovations could circumvent these difficulties.

Small money

Lord Briggs of Westbourne told the conference that eBay settles more small money claims that the entire British justice system, albeit the work is done by bots.

And the percentage of incorrectly filled court documents has reduced from 40% to less than 1% with the introduction of new online case-management systems in Britain, Lord Briggs revealed.

All the anger, frustration and anxiety of having paper forms sent back has been hugely reduced, he commented.

Unbundle services

The new innovations would require lawyers to unbundle their services though, he said.

Court processes would become more like the rest of online life, such as online shipping or online banking, which have streamlined everyday activities.

Why shouldn’t courts be the same, he asked?

Coomber commented that the online initiatives had been opposed in Britain on grounds of digital exclusion. According to British statistics, those without digital skills and access number five million people.

Analogue system

These people may already be excluded from an analogue system, Coomber pointed out, saying that more support was required.

Transparency was another concern raised by Coomber, who said that it was a fundamental principle of open justice, though she admitted that digital platforms could enhance both transparency and access.

Another risk lay in getting IT wrong, with much trial and error required for new systems.

Oral advocacy

British lawyers fear that advice and oral advocacy will die out, she said, but most ordinary people simply want their dispute resolved, and don’t necessarily want their day in court.

A key to better access to justice was better public legal education, Lord Briggs commented. The public should know more about the courts, before they ever come to use them, he concluded.