‘Old culture’ of settling on court steps is gone forever

District Court President Justice Colin Daly has said the ‘old culture’ of last-minute case negotiations will no longer be physically possible in the new COVID-19 reality.

He warned practitioners and court users that waiting to come to court buildings to start entering negotiations is no longer tenable.

Judge Daly signalled that lasting changes are on the way in how Irish courts are conducted, and urged that cases be mediated and settled as far as possible.

Mr Justice Daly told the One Family webinar yesterday that COVID-driven remote hearings are going to have a big impact on the future delivery of family law.

“The gathering of large numbers of people in court environs, waiting for cases to come on, can no longer be the norm,” he said.

Settle

“Traditional ways of settling cases can no longer be facilitated, so I would encourage parties to mediate and to settle cases where at all possible.

“The old culture of waiting to come to the court building to start entering negotiations is no longer going to be physically possible in the new reality.”

Justice Daly said that valuable lessons had been learnt during the pandemic, and remote courts will be a key part of the immediate future.

“I also learnt that we need to develop new ways of accessing courts, including by email and by remote video access,” he said, given that public health restrictions are likely to be with us for some time.

“Our generation will live in the shadow of a pandemic, which will influence how to plan future services. Courts will need to be flexible and responsive to another localised lockdown,” he said. 

Flow

Mr Justice Daly said returning to a full District Court hearing schedule on 1 September can only be achieved with a greater emphasis on scheduling, to regulate the flow of people safely through the courts.

However, remote courts provide challenges, including such legislative limitations as requiring a judge to be sitting ‘in person’.

“Section 26 of the Courts of Justice Act 1953  requires a judge to be sitting in a place within his or her district, in order to hold that court properly. This requires the judge to travel physically to the court,” the District Court President said.

“Section 26 of the Civil Law (Miscellaneous Provisions) Act deals with giving evidence by way of live television link and is the legislation on which we base our ability to conduct remote courts.

“But we cannot commence a case without physically attending at a court office,” the District Court president said.

The solution to these difficulties may be new legislation specific to the electronic filing of documents or the holding of remote courts.

However, legislation is not a matter for the judiciary, he said.

In-camera

The ‘in-camera’ rule, that proceedings are not recorded, is also challenging, because it is harder to police with remote hearings.

“The challenge for us is how to ensure that those engaged with remote hearings will not record or publish the proceedings.

“This is a real concern,” the District Court President said.

Acute

He said the District Court’s importance in adjudicating disputes between families becomes particularly acute in times of crisis external to the family.

The District Court President said he was not immune to the fact that restricting the courts to emergency business was hard for many families around the country.

He said the need for a dedicated family law division will be felt more acutely than ever.

There is an absolute need to keep courts accessible for emergency orders, even during a pandemic, he said.

During the shutdown, the District Court gave ‘urgent business’ weight to domestic violence protection applications, and child law care orders.

“These decisions were the right decisions, given the public health concerns at the time,” he said.

Communicating with the public is particularly important  when things are changing fast, Judge Daly said.

There was particular difficulty in hearing the voice of the child during the virus crisis, the District Court President noted.

Parents subject to child access orders were urged to agree temporary variations in light of public health guidelines during the lockdown.

Domestic violence

Discussions are under way on remote domestic violence hearings, the judge said.

“We are currently engaged with some domestic violence support services about how remote applications for ex parte domestic violence applications can be achieved,” he said.

Solutions include the creation of specific offences through legislation, but also the use of ‘trusted intermediaries’ to assist parties who find it difficult to come to court.

Steps

The District Court President recounted the steps taken as the virus crisis escalated in the spring.

From 24 March, all family law consent order adjournments could be dealt with by email.

On 8 May, the District Court President decided that urgent matters could be extended to include applications for breach of access and maintenance during lockdown.

TV link

On 19 May, a significant practice direction was issued, called the ‘Live TV link practice direction’.

This provides for remote hearings in the District Court in the area of civil law, family law and childcare cases.

The District Court continued to provide a full schedule of services in 40 y locations, on an almost daily basis, during lockdown.

The District Court President thanked Courts Service staff who “rose to the occasion” during the extraordinarily difficult circumstances of the pandemic crisis, he said. 

“They achieved things in days that would ordinarily take months to put in place,” he commented.

Increase in protection orders

There was a 17% increase in protection orders compared to the same period last year, a very significant increase in demand that the District Court was able to meet, Mr Justice Daly said.

And there was a 30% increase on the 2018 figure, he said.

This shows a significant increase in demand that the District Court was, and remains, able to meet.

Digital disadvantage

Digital disadvantage is another factor to be considered in the future, since not all of the people who wish to engage with the District Courts can do so through remote hearings, such as those with intellectual, physical or literacy disabilities

Poor or insufficient broadband may also disadvantage court users, the judge said.

“However, creating access for those who can engage with remote courts will create greater capacity for those who can’t to attend the more traditional type of court,” he noted. 

Remote call-overs

The District Court President said there will be greater use of remote call-overs, and remote hearings, wherever possible.

Remote call-overs have already been rolled out on a trial basis in Galway and will also be tested in Tipperary and Limerick.

Dolphin house hearings

“I myself am going to be taking the first two days of remote hearings in Dolphin House this month, when various applications are going to be made remotely,” he said.

Mr Justice Daly was previously managing solicitor at the Northside Community Law Centre in Dublin 5, and has wide experience in the voluntary sector.

The Cloughjordan, Co Tipperary native was appointed a judge of the District Court in 2012.