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'Shrinking sub-set' of cases stifles access to justice

Chief Justice-designate Donal O’Donnell has said he disagrees with the position of some lawyers and commentators that legal professionals should take no role or interest in whether or not people come to court.

He said he warmly welcomed last weekend’s Law Society-sponsored Access to Justice conference, and said he planned to build on its work in the years to come.

“Access to justice is critical. It is and should be a matter of concern to judges and lawyers, and anyone interested in making society fairer, more humane, more considerate, and ultimately, more secure,” he said, giving the final speech of the conference (2 October).

Removing obstacles to access to justice is not a single problem requiring a single solution, but a multi-faceted issue that requires many changes, large and small, in many areas, including education, outreach and support, Mr Justice O’Donnell said.

Structured support

It involves the structured support from the organised branches of the legal profession, he said – just days before he takes up his position as successor to Chief Justice Frank Clarke.

The moves may involve provisions controlling the cost of proceedings, and the procedures that lead to costs, the Chief Justice-designate added.

There may also be movement on group actions, and third-party funding of cases, he said.

“Some people may find this range of issues depressing, but I think it is both pragmatic and encouraging,” the judge said.

Cumulative impact

“It means that we can all make a difference, in different ways,” he continued.

“I think it’s particularly appropriate that the Chief Justice has organised this conference,” he said, adding that access to justice could be improved progressively and incrementally, with a cumulative impact.

“It’s a job for us all,” he added.

Court decisions, large or small, control a much wider field than just the dispute between two parties in the case, he commented.

Prevent chaos

“The law we have is not the will of distant rulers imposed upon the people. It is, by and large, law which tends to protect the weak from the strong, which seeks to maintain order and prevent chaos,” he said.

Many in the legal system do work very hard to make the law work for the benefit of all citizens, he added.

Court rulings give lawyers and citizens the capacity to predict future decisions.

“To that extent, the decisions of the court are a vital strand in society, which hold it together and at best, make it strong,” he said.

“I think it can be said that the quality of justice dispensed in Irish courtrooms is high, and is certainly well respected by international standards."

Mismatch in quality of justice

However, he warned of a danger of a mismatch between the quality of justice dispensed in the courtroom and the impact of the law on the wider society that it seeks to serve.

“A good decision might be made if a case reaches a court, but if the cases which come to court are only a narrow and shrinking subset of disputes … then the capacity of the administration of justice to be a vital part in the structure of a humane society becomes compromised,” he warned.

If people do not know that the law provides an answer to their problem or a way to resolve their dispute, or if they cannot afford the risk of a loss in court, then the care and attention with which justice is dispensed inside a courtroom looks less impressive and more random, he said.

“People justifiably become more sceptical of what lawyers, grandly, like to call the rule of law,” he concluded.