Zoe Richardson: Working group report points to wide-reaching opportunities to modernise the courts

Zoe Richardson: Working group report points to wide-reaching opportunities to modernise the courts

Zoe Richardson

Fieldfisher partner Zoe Richardson considers the wide-ranging recommendations of the Judicial Planning Working Group.

The publication of the report of the Judicial Planning Working Group on Friday was largely welcomed by industry and government, reflected in the widespread coverage of the recommendation to significantly increase the number of judges appointed across the courts system. But it was not the only recommendation that, if implemented, carries potential to speed up the process of processing cases through the court system.

The administration of justice hinges on there being sufficient judges available to hear cases. The measures proposed, and the positive response from Justice Minister Simon Harris, indicates a strong will to action this recommendation in the near-term. The working group, which spent the past two years investigating the existing process and waiting times, also recommended upgrades to the digital infrastructure, physical infrastructure, and scheduling of court sittings that could also lead to the creation of a modernised courts system that would enhance access to justice, efficiency and effectiveness of the justice process.

24 additional judges

The recommendation to appoint 24 additional judges as a matter of urgency (Phase 1), with provision for 20 further appointments before end-2024 (Phase 2), subject to an assessment of the impact of the initial appointment of 24 judges on resourcing and wait times has been identified as a priority recommendation from the report.

It proposes that judges should be appointed as ordinary judges and hear a broad spectrum of cases. This is interesting, at a time when the court lists have become arguably more specialised, for example, a specialist Planning and Environmental Court is in the pipeline and the specialist Commercial Court is a long-standing feature now. The report does acknowledge that some judges may be required to specialise in a particular area of law for a particular time during their career on the bench.

The report’s recommendation to significantly increase the number of judges and modernise the management of cases across all courts is welcome, and answers a clear call from the judiciary for a bolstering of resources. There are imminent developments in legal practice which have the potential to significantly increase the demand on judicial resources, not least the wind-down of the wards of court system by the High Court and the implementation of the provisions of the Assisted Decision Making (Capacity) Act 2015; the establishment of a specialist Planning and Environmental Court; the development of a reformed and dedicated family law court system; and the ongoing attempts to address the backlog of cases caused by the Covid pandemic.

The government appears to have quickly accepted the report’s findings and has already made a commitment to create the recommended appointments.

Requirement for modernisation

The report contains a comprehensive and wide-ranging analysis of the current courts system and highlights its inefficiencies. In particular, it identifies some key issues underpinning the chronic need for additional judicial resources, pointing to the international context along with the legacy of the courts system in Ireland.

Ireland has fewer judges than other European countries – we have 3.3 professional judges per 100,000 inhabitants, whereas the European average is 17.6 judges per 100,000 inhabitants. Additionally, any increase in judicial numbers over the last decade has been in the Superior Courts; there has been no increase at all in judges in the Circuit and District Court over the same period, despite the majority of the courts’ business being conducted in the lower courts and the population increasing significantly.

As with most parts of our society, Covid continues to impact on waiting times for access to services. The backlog caused by Covid has not yet been cleared, with a particular issue identified in respect of criminal cases requiring jury trial.

Pressure on the High Court has increased significantly, with an increasing complexity of cases and substantial amounts of new business, partly due to a growing perception of Ireland as a favourable place to conduct litigation. Additionally, inefficiencies in the courts system as a whole, with divergences in court sitting times between the various courts requires some consideration.

Digital transformation is permeating all aspects of our society but not without some challenges. Issues with the technology/IT systems in use across the Courts Service, with 120 different case management systems currently in use, are not conductive to the requirements of a modern court service. From practical experience, technology is not a feature in many of the Circuit and District Courts, inhibiting the ability to conduct suitable business remotely or in hybrid form in those courts.

So what does the report recommend as a solution (in addition to more judges)?

While the number of new judicial appointments was the most widely reported aspect of the Working Group’s report, its recommendations are actually far more expansive. They are underpinned by other suggested reforms that arguably are just as important to the effective functioning of the Courts Service. The recommendations have the potential to transform the operation of the courts system. These include:

  • Adoption of a modern case management system with increased use of e-forms and electronic filing of documents. This in particular would be transformative, in terms of making litigation more accessible and user friendly, and also more sustainable in that it would reduce the amount of paper, travel time and waiting time involved;
  • An emphasis on maximum utilisation of remote/hybrid hearings. This has the potential to prove controversial, as opinion is divided on the merits of remote hearings. It is sensible to suggest that there be a prominent role for remote/hybrid court sittings, underpinned by best in class technology, however only for suitable applications. Some detailed practice directions or guidance on the use of remote/hybrid hearings would be welcome to put some structure around this recommendation;
  • The report suggests longer daily court sittings to maximise the use of courtroom facilities – specifically, 9am to 6pm was suggested – along with shorter court vacations, limited to a short summer vacation and some days in December;
  • Interestingly, but possibly also a more long term initiative, the report recommends that a review be conducted to assess potential other means of enforcement, for example by way of administrative means, which would potentially remove some of the burden from the judicial system, which is currently largely responsible for all enforcement actions.

Read in its totality the report is very much centred around a comprehensive, root-and-branch reform of the way in which the courts do business and interact with stakeholders and court users. It has clearly identified multiple opportunities for improvement within the system, with the opportunity to deliver a really effective, efficient and more timely justice system.

The linking of potential future increases in judicial numbers to progress in reforms and efficiencies of the courts system creates an impetus for both the judiciary and the Courts Service to embrace the suggested modernisation of the overall process.

Overall, the proposals represent a positive, progressive and considered step forward for a currently overloaded system that deals with increasingly complex litigation at all levels of the system. It is hoped that the required legislative amendments to allow for the appointment of new judges will be enacted in a timely way, kick-starting the implementation of the other recommendations in the report.

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