‘Significant benefits’ of extra judges outlined

The President of the High Court Mr Justice David Barniville has welcomed the recent increase in the number of judges, but has warned that the move will also require additional resources elsewhere in the justice system.

Mr Justice Barniville (pictured) was speaking yesterday (25 October) at the Law Society Litigation Committee’s annual conference in Blackhall Place, an event also attended by Attorney General (AG) Rossa Fanning SC.

Welcoming the attendees, Law Society President Maura Derivan spoke about the increased interest in Irish commercial litigation from other European countries after Britain’s departure from the EU.

She said that, after Brexit, Ireland was now the largest common-law system in the EU, and that Ireland had now been joined to the Federation of European Bar Associations (FBE).

The president said that she hoped Ireland would now have access to a fund for education and training that would allow European lawyers to become familiar with how commercial litigation operated in Ireland.

She told attendees that litigation was not a process, but involved the pursuit of justice, the resolution of conflicts and the safeguarding of rights.

Resources

The High Court President said that the extra judges would have, “very significant benefits” for the justice system, describing the increase as “a very significant commitment” by the Government to the judiciary and the Courts Service.

He added, however, that appointment of new judges carried with it the need for additional resources in other areas that also needed to be addressed – in particular the Courts Service, but also other bodies such as the prosecution service and the gardaÍ.

Mr Justice Barniville told the event that three of the new High Court judges would eventually be needed to cover what he described as “the enormous work” involved in reviewing and discharging an expected “avalanche” of reviews of wards of court, due to legislation on assisted decision-making.

He added that he hoped that a new planning-and-environment court would begin “very soon”, with one of the new judges allocated to this division.

The Judicial Planning Working Group that backed the higher number of judges also made other recommendations – including the staggering of the courts’ ‘long vacation’, which lasts through August and September.

The High Court President said that a pilot project next year would involve a small number of judges who would take the long vacation in July and August.

Litigation against State ‘a design feature’

The Attorney General Rossa Fanning SC explained the thinking behind the publication of State Litigation Principles, guidelines in the conduct of litigation by the State that were approved by the Government earlier this year.

He said the principles sought, for the first time, to clearly articulate standards for the State and its lawyers in the conduct of legal proceedings, adding that many were already applied on a daily basis.

The AG said that there was “a popular misconception” that the mere fact of legal claims being brought against the State was itself indicative of a culpable failure on the part of the State.

He said Irish citizens were “deliberately afforded” the opportunity to challenge Government actions before independent judges in courts, describing litigation against the State as “an intended design feature” of the Irish model of Government, which was not always the case in other countries.

The AG added that he hoped the principles set out earlier this year would “set an example”, and be followed by other statutory bodies that are independent of Government.

He also told attendees that he hoped solicitors in private practice would see some merit in the principles, and would have regard to them when advising their own clients.

He stated, however, that a requirement to act ethically in litigation did not abrogate the State’s legal rights, and that it could not be precluded from contesting proceedings, appealing a decision, or seeking to recover costs, where appropriate.

The AG said the principles should mean a greater emphasis on early engagements to try to resolve unnecessary litigation – including taking steps to resolve disputes between public bodies outside the courts.

Group litigation

Joe O’Malley (managing partner, Hayes Solicitors) spoke to the conference about the implications of recently enacted legislation, the Protection of the Collective Interests of Consumers Act 2022, that would allow class actions to be taken to protect consumer interests.

He said that experience in other countries had shown significant increases in group litigation as a result of similar legislation, which emerged from an EU directive.

O’Malley said that the potential to attract significant volumes of overseas claims would certainly “pique the interest” of litigators in this country.

But he warned that, while access-to-justice factors should be considered, so also should the necessity of preventing “unmeritorious and abusive” claims, and having the courts clogged with a large volume of unnecessary claims.

Third-party funding

Graham Kenny (partner, Eversheds Sutherland LLP) spoke to the conference about the potential introduction of third-party litigation funding to Ireland.

The issue is currently the subject of a consultation by the Law Reform Commission.

Kenny referred to the “lofty ideals” of broadening access to justice by allowing such funding, but added that the reality in other jurisdictions had been very different.

He said that most of the entities involved in such activity in England and Wales were funding “very large” claims.

The solicitor quoted figures from the President of Australia’s law-reform commission showing that 76% of funded representations in the Australian courts between 2013 and 2018 had investors or shareholders as claimants.

When considering third-party funding, he urged the legal profession to think about the reality of what they were introducing, as opposed to what they thought they were introducing.