Killian Flood: Government delay to civil justice reform speaks to a wider indifference to the court system

Killian Flood: Government delay to civil justice reform speaks to a wider indifference to the court system

In May 2022, the Department of Justice outlined a plan to implement reforms to civil procedures in the courts. In June 2024, with just a year left for the current government, lawyers are still waiting for the reforms to be legislated, writes Killian Flood.

In May 2022, the Department of Justice published the Implementation Plan on Civil Justice Efficiencies and Reform Measures, a document borne out of the recommendations made by Mr Justice Peter Kelly in his 2020 report on the administration of civil justice. The plan included a wide range of reforms to civil procedure, including extensive changes to the Rules of Court designed to reduce delay and costs in proceedings.

The procedural reforms contained in the implementation plan included expanding the use of case management, limiting the number of adjournments available to parties, providing for automatic discontinuance of proceedings and standardising court forms across the various jurisdictions. However, many reforms also targeted specific practice areas, such as requiring plaintiffs in personal injuries actions to clearly distinguish between pre-existing injuries and those the subject of the claim.

Many of the reforms to court procedure required legislation and, quite appropriately, the Department set out a timeline in the implementation plan for this legislation to be enacted. By their own schedule, the Department was to have a court reform bill drafted in 2022, which was to be enacted in the first half of 2023.

Fast forward to June 2024 and the reform bill has not been drafted. Worse still, the legislation is not on the government’s programme for priority drafting in Spring 2024. As such, it appears that legislative reform to court procedures has been put on the backburners as the present government enters its final year before the next general election.

A frustrating development

The delay to procedural reform is a frustrating development because these reforms are vital to the proper administration of justice. To take one example, the implementation plan includes reforming the law on lis pendens. Very often, a borrower seeking to delay or halt a land sale by a bank or receiver will issue frivolous proceedings against the bank and register a lis pendens (literally “litigation pending”) over the property with the Land Registry. Would-be buyers are notified that there is pending litigation regarding the property and, typically, they are scared off, reducing the value of the property and preventing a sale.

The only way to remove the lis pendens is for the bank to bring an application to court, usually the High Court. Obviously, this is tremendously costly and, moreover, it can take months or years for a case to progress if the application is contested. Such cases are obviously an abuse of process, but it is an abuse of process that is facilitated by the Rules of Court, given how easy it is to register a lis pendens and how hard it is to remove it.

The implementation plan would reform the law by limiting the registration of lis pendens to 28 days and providing that the time limit could only be extended if the registrant brought an application on notice to the bank. Accordingly, the burden of proof would shift onto the registrant to establish that it was appropriate for the lis pendens to be registered. Failure to do so would result in the lis pendens being vacated in early course.

This is the kind of valuable reform that is lost due to government inaction, which is particularly ironic as the reforms are described as “facilitating easier, cheaper and quicker access to civil justice”. While there is no doubt that the reforms are significant and require careful legal drafting, we should also be much further along in the legislative process. What was the point of commissioning the Kelly Report if action was not going to be taken?

A wider indifference

Moreover, the failure to implement the civil justice reforms speaks to a wider indifference that successive governments have shown to the legal system as a whole. It took industrial action before the government reversed FEMPI-era cuts to criminal barristers, and even now the 10 per cent increase in fees does little to undo the damage of a decade of underfunded criminal justice.

Greater resourcing of the judiciary has been needed for some time. Successive presidents of the High Court have decried the lack of judges, and while the government has recently expanded the judiciary, many more judges are needed in the Circuit and District Courts. For example, the Circuit Court in Bray (hardly a backwater town) has only four weeks of civil court sittings in 2024, leading to massive backlogs in the system. The rest of the legal diary is primarily taken up by criminal cases, as family cases only get five weeks during the year.

It is utterly unsustainable to have such limited time available to civil cases, which vary widely from personal injuries to possession to licensing disputes. No amount of reform to procedure can make up for the fact that there is simply not enough judicial time for cases to be heard.

Back in Dublin, many courts in the Four Courts are in dire need of renovation. Ugly IT systems are haphazardly slapped onto creaking furniture that might have been fashioned a century ago. Paint is peeling off the walls in places, while makeshift courtrooms in Áras Uí Dhálaigh are insultingly tight for space. Many courtrooms more closely resemble a decaying 1970s office than a modern, functional seat of justice.

Although such work is technically the responsibility of the Courts Service, government policy plays a role in determining where the money goes. I’m not asking for marbled floors and gilded skirting boards — just benches that don’t resemble historic church pews. Surely these kinds of renovations do not form part of the Courts Service’s 10-year modernisation programme, which has so far focused on digital innovations to the court system.

Judges and court staff are working on top of one another in the Four Courts, while the new family and Supreme Court complex has been delayed for close to a decade. The latest word is that development will break ground on the Hammond Lane site in 2026, some six years after it was supposed to be completed.

Taking everything into account, it is safe to say that the civil justice system works in spite of government assistance. For too long, the smooth operation of the courts has been dependent on lawyers, judges and court staff doing the best with what they’ve been given and making the system work.

Improving the administration of justice starts with political will and funding. Budget 2024 provided €183 million to the Courts Service, although a breakdown of where this money is being spent is hard to find.

This government has talked a good game as it relates to reforming civil procedure. As it enters its final year, it remains to be seen when reform will come, if at all.

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