Productivity shake-up as case complexity increases

Current judge numbers cannot support a stable and well-functioning courts system, a report by the Judicial Planning Working Group (JPWG) has found.

The report finds that population growth, new areas of law and the increasing complexity of issues all drive the need for more judges – up to 108 – in tandem with operational improvements.

It cites the Assisted Decision-Making (Capacity) Acts 2015-2022, the establishment of an environmental court and the Family Courts Bill as adding to case complexity, as well as the significant backlog in criminal cases.

FDI attractiveness

Court decisions within a reliable timeframe are key to Ireland’s attractiveness for foreign direct investment, and lead directly to this country’s prosperity, the report states.

The Government has already accepted recommendations from the group for the appointment of 24 additional judges this year at a cost of between €15-€18 million, including the cost of extra support staff.

Court presidents’ submissions to the authors indicate a need for over 60 additional judges in the short term – up by over a third on the current complement.

An additional 44 judges should be appointed by 2024, the report states, which will only begin to address urgent backlogs and new work.

Five-day week

The report recommends a five-day working week as standard across all jurisdictions. While the High Court’s traditional long holiday each August and September, and uninterrupted holiday time is important for the writing of judgments, staggered vacation periods for different divisions would facilitate a better use of resources, the report states.

All courts should schedule trials over a longer working year, with closures limited to some days in December and a short period in summer, the report states.

It suggests that one judge and a registrar could sit before lunch, followed by another judge and registrar between 1.30pm and 5.30pm in the same courtroom.

The report wants greater powers and supports for court presidents in managing judicial resources, better data to support resource-allocation, a rejig of District and Circuit Courts areas, and staggered vacation periods.

Holiday time could be staggered allowing for longer court sittings without any reduction in time off, the report suggests.

Case management systems

There are currently more than 120 case-management systems in use in the courts, and the JPWG wants this rolled into one.

Quasi-judicial officers such as High Court masters and county registrars should have a greater role in case management, with clarity as to demarcation from judicial functions, the report states.

The courts must push ahead with full e-filing as part of the Courts Service data-management strategy, while digital supports for remote and hybrid hearings should also continue.

A Data Working Group of judiciary and Courts Service staff should be established to identify the key data points to assess the state of court lists and to feed into metrics on case management.

Support services should also see increased numbers to support judicial work, the report states.

Structured approach

And it foresees a structured approach to assessing judicial resource requirements, hammered out between the Department of Justice and the Courts Service, and based on comprehensive data.

The report calls for data and metrics to assess judicial workloads through weighted caseload data, and trends across different types of court business.

It also wants judicial training – both initially on appointment, and ongoing during judicial careers, with adequate time to attend upskilling sessions – particularly in case management.

Ten-year lead-in time

The JPWG report echoes the OECD call for an automated case-management system and predicts a ten-year lead-in time, with an interim system to be set up by 2025.

It also wants a strategic multi-annual approach to judicial human-resource planning and the collection and management of data on sick leave, holidays, retirement schedules and diversity characteristics.

From a rule-of-law perspective, a judiciary should be representative of the diverse nature of society, the report states.

Retirement age

The judicial retirement age of 70 should remain, it says, but flexible working should be introduced in line with the rest of the public sector.

Retired judges and other legal professionals could also deal with backlogs on a temporary-work basis, though there is an impediment given the requirement in article 35.3 of the Constitution that, “No judge shall be eligible to be a member of either House of the Oireachtas or to hold any other office or position of emolument.”

The report notes capacity issues in Dublin courtrooms – with a better situation outside the capital.

The Working Group recommends that the operations of the District Court should be restructured into a smaller number of larger districts and aligned, as required, with Circuit Court geographical areas.

Current unsatisfactory delays and backlogs are having an adverse impact on individuals and society, the report states.

Paucity of data

However, in tandem with the OECD report, the JPWG study finds a paucity of data and says that better information systems are essential to deploy resources more effectively, as well as underpinning the business case for a greater number of judges.

“It was clear from our work that one of the contributing factors to an increased need for judicial resources is the impact on the courts of a multiplicity of new public policy decisions and actions,” the authors state.

EU figures indicate that Ireland has 3.3 judges per 100,000 inhabitants compared with the EU average of 17.6, albeit in civil-law jurisdictions.

Most of the 46 Council of Europe member states have between ten and 30 professional judges per 100,000 inhabitants.

ADR mechanisms such as mediation, arbitration and conciliation should be used where possible to alleviate the burden on judicial time, the report states.