Looming case-management ‘war of attrition’ says judge

Retiring High Court judge Mr Justice Kevin Cross has warned of a “very serious negative effect” of incoming case-management methods that may lead to a “war of attrition” that favour wealthier parties.

Pre-trial procedures, protocols, motions for directions, written submissions – all may suit the egos of judges … but they are creating a “war of attrition” that favours parties with deep pockets, the judge said.

The legal system is contingent on an unspoken social contract that the scales of justice must constantly be recalibrated, in order to ensure that they are back to equilibrium, he added. Left to their own accord, they will invariably tip in favour of vested interests and the big battalions, the retiring High Court judge said.

The proposed case-management methods may suit lists in which everybody has a deep pocket, he warned, but they have a very serious negative effect in ordinary cases.

Proposed changes fear

“I do have a fear that recent and proposed changes in our practice will have the effect of changing a system that is, in its simplicity, based upon the ideal of getting a case to the door of the court, as quickly as possible, [and] replacing that with a system which is, in effect, a war of attrition,” he said.

He referred to a recent case concerning important points of law, in which a seriously-ill plaintiff in imminent danger of death did not succeed in getting her case started within weeks of going to her solicitor with instructions, because of pre-trial case-management protocols.

“She succeeded in getting her case on so quickly because of her courage and determination; and because of the determination and skill of her legal advisors, solicitors and barristers; and because of the skill and professionalism of the legal teams for the defendants, and their co-operation in a system of trust and confidence,” Mr Justice Cross said.

‘Judging is not a science’

Judging is not a science, or a box-ticking exercise, he added, and vindication is not to be found in applying a mathematical formula – but in the continuing duty of the judiciary to be honest to the declarations they made on appointment, to apply justice and ignore the formula.

And it is the duty of the independent Bar and solicitors to sometimes remind judges of their duties – forcibly, if necessary, he said.

“A judge must do what the evidence tells him or her to do,” he added, and even in the days prior to social media, must be prepared for an onslaught of sometimes personal vitriolic abuse.

Warm tributes

Warm tributes were paid this morning (18 November) by colleagues at the retirement of Mr Justice Cross.

Attorney General Paul Gallagher SC expressed sincere gratitude on behalf of the Government for the great public service performed by him during his ten years on the High Court bench, where Mr Justice Cross has served since October 2011. All who had dealt with him benefitted from his wisdom, judgment, compassion and insights, the AG said.

“One of your most remarkable characteristics is that you have always displayed a kindness, humanity and empathy, which together with your undoubted intelligence, served your clients while at the Bar, and the public while in judicial office,” Mr Gallagher said.

This real interest in his fellow human beings had made Mr Justice Cross very popular, and engendered respect from all quarters, the AG said. The judge had set high standards from which everyone benefitted.

Impressive career

Law Society President Michelle Ní Longáin said that Mr Justice Cross had enjoyed a most impressive career, and made a remarkable contribution to justice over the past four decades.

He was also a true friend of the Bar, she said, and was certainly a true friend of the solicitors’ profession.

“I’d like to commend you for standing up for doing the right thing,” she added, “and for that compassion, resolve, dignity, and the careful consideration that you have given to all parties involved in difficult cases.”

As a judge in charge of the personal-injury list in the High Court, Mr Justice Cross presided over a great many cases, with significant regard for the rights of victims, the Law Society President said. His expertise and guidance will be missed, she concluded.

‘High standard of civility’

Answering, Mr Justice Cross said that everyone had the right to a high standard of civility from a judge. 

“What is of far greater importance than what a judge decides, is how a judge decides,” he said. That is because how a judge decides is something that will either increase or diminish the independence of the judiciary, and ultimately, the rule of law, he warned.

Blessed 

“All of my life, I have been blessed with a happy disposition and a hopeful frame of mind,” he continued. “I have been blessed with family and friends, and with teachers never thanked. I’ve been blessed with colleagues. I’ve been blessed with the fact that I have been allowed to do throughout my life what I enjoy doing.

“And I have been blessed with the grace and favour of successive Presidents of the High Court – Nicky Kearns, Peter Kelly and Mary Irvine – who have allowed me to be here with the personal-injury list, even if, from time to time, they didn’t agree with what I was doing.

“They allowed me my independence as a judge,” he said, “and that independence is vital for the freedom of our society.

“The best judges decide as little as is necessary,” he commented, “because deciding more than is necessary sets traps for their successors.” 

The judiciary had neither purse nor sword, and was the weakest of the three arms of Government, he added.

It relied solely upon the trust and confidence that people had in it. The independence of the judiciary was contingent upon the independence of the referral Bar, and the strength and success of the solicitors’ profession, he said.