Chief justice hints at radical shake-up in judge numbers

The chief justice has said there needs to be a radical change in judicial numbers in this country.

Speaking at a recent Lawyers Against Homelessness CPD event at the Capuchin Day Centre in Dublin 7, Chief Justice Frank Clarke said he was hopeful about the establishment of a high-level Government committee to carry out an assessment of the real needs for judicial numbers across all the courts.

This will consist of the attorney general, and the ministers for finance, justice, and public expenditure and reform.

This full review will be the first of its kind, the chief justice said and will range across all of the Irish courts.

“The real issue is what do the trial courts need, what does the District Court, the Circuit Court, and the High Court need?” he asked.

“And not just what do they need today, but what are they likely to need by reasonable prediction over the next five or seven years,” he said.

Thorough examination

This thorough examination of judicial needs has never happened before, Chief Justice Clarke said, having been dealt with in the past through informal representation.

The courts must now demonstrate the best possible use of its existing resources, he said.

“You never get extra resources out of Government without giving something,” he said, pointing to the potential for a radical change in the number of judges in Irish courts.

To this end, if the high-level committee is established, the chief justice will set up a parallel judicial committee, consisting of all the courts presidents, to interact with the Government body.

Changes in legislation generally created a need for extra judges, he said, but not enough discussion took place about this.

Litigation impact assessment

“We have agreed with the Department of the Taoiseach that the Courts Service will be consulted on all legislation, in advance of it being finalised and presented to the Dáil, about issues concerning the resource implications for the courts,” he said.

The chief justice described this as a “litigation impact assessment” in advance of legislation being enacted.

The number of Irish judges is currently significantly lower than in other comparable countries.

“We have a strong case that there needs to be a radical change,” he commented.

He added that it was no longer possible for lawyers to keep abreast of all areas of the law.

In the past it was realistic for many lawyers to know most things about mainstream areas of the law, but this was no longer the case: “That day is long since gone,” he said.

“The ability of anyone to keep abreast of many areas of the law is no longer possible."

He added that constant updating of information on new judgments or EU decisions was vital.

This was particularly the case where lay litigants did not have legal representation, and members of the judiciary did not have the assistance of lawyers to update them on the areas that were relevant to the proper resolution of proceedings.

Judicial skills

The chief justice said that he was trying to persuade the Government to grant a greatly extended budget dedicated to upgrading judicial skills.

“I am reasonably confident that, in the context of the Judicial Council, it will be possible to do that,” he said, with the caveat that funding would be dependent on how Brexit played out.

The Supreme Court has seen a 36% increase in applications for leave to appeal this year – on top of an 18% and 10% respective increase in each of the past two years.

Applications for leave have been typically dealt with on Fridays by a panel of three judges, though this might have to change to two panels because of the volume of cases.

The Chief Justice said there was a real fear that a second panel would make a varying decision on a similar point of law, so the court was putting in place methods to keep the judges updated on all concurrent decisions.

Hike in Court of Appeal judges

On the hike in the number of Court of Appeal judges to 16, the chief justice said he was hopeful that these appointments would be in place for the post-summer-recess term.

“The six judges in the Four Courts dealing with civil cases have not been able to able to keep up with the number of cases coming in,” he said.

There will be two civil divisions of the Court of Appeal sitting every day, when the new appointments bump up the cohort on the bench to ten judges, he said.

“That, of course, will have a knock-on effect on the Supreme Court, because the more decisions there are in the Court of Appeal, the more likely there are people saying they are wrong and trying to appeal them to the Supreme Court.”

And in an aside that revealed that members of the judiciary are up to speed on the use of social media, the Chief Justice revealed that Supreme Court judges now have their own WhatsApp group.

This article was amended as of 9 July, 2019 at 9.44 am. The following two paragraphs were amended: "Speaking at a recent Lawyers Against Homelessness CPD event at the Capuchin Day Centre in Dublin 7, Chief Justice Frank Clarke said he was hopeful about the establishment of a high-level Government committee to carry out an assessment of the real needs for judicial numbers across all the courts"; and "To this end, if the high-level committee is established, the chief justice will set up a parallel judicial committee, consisting of all the courts presidents, to interact with the Government body".