Attorney General says judges should actively manage litigation as it gets ‘ever more protracted’ and costly

The Attorney General has called for judges to more actively manage litigation here after expressing concern that it is becoming “ever more protracted”, complex and costly.

The Commercial Court, which applies fast-track procedures and active case-management, “remains the gold standard of efficiency and case management that other courts should seek to emulate”, the Attorney, Rossa Fanning, told a top-level gathering of judges and lawyers.

Combatting the problems of delays and costs is not, as Taoiseach Leo Varadkar has said, just about appointing more judges but is also about adapting the management of court proceedings, Mr Fanning said.

“There is a “constant tendency for litigation in all of our courts to become ever more complicated, for more evidence to be called, for more documents to be discovered, for more cases to be cited and for written judgments to become ever more lengthier and more prolific”, he said.

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“To what end, I wonder, other than for ever greater time and cost to be spent on the legal process.”

The legal process surrounding the 1970 Arms Trial lasted just five months, he noted.

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That could be contrasted with a case determined last July where the High Court ordered the reinstatement of a school principal who was dismissed 11 years earlier, he said.

Last November, the Supreme Court, in a 191-page judgment, decided that persons delivering pizzas are employees in a dispute that arose out of tax assessments dating back 12 and 13 years, he added.

This illustrated the need “to renew the battle against the constant tendency for legal disputes to become ever more protracted and complex”, he said.

The Attorney was addressing a special ceremony in the Four Courts on Wednesday evening to mark the 20th anniversary of the establishment of the Commercial Court, the big business division of the High Court.

Organised by the Commercial Litigation Association of Ireland (CLAI), the event was attended by Chief Justice Donal O’Donnell along with many serving and retired judges of the superior courts, judges from commercial courts in the UK and Paris, lawyers and court staff.

The keynote speaker was retired High Court president Mr Justice Peter Kelly, the principal driver of the establishment of the commercial court in January 2004 and manager of the court over its first decade.

In his address, Mr Justice Kelly said litigation costs remain a major issue and commercial litigation is “no exception”. It was, he said, “disappointing to see so little apparent progress” in dealing with costs recommendations made more than three years ago by the Civil Justice Review Group, which he chaired.

The benefits of the Commercial Court will only be achieved if it remains competitive in relation to costs and service and provides expeditious and just trials as well as good judgments delivered in a timely fashion, he said. Speedy appeals, and timely judgments on those appeals, were also necessary.

Mr Fanning, former Attorney General Paul Gallagher, Mr Justice Denis McDonald, who currently manages the commercial list, and solicitor Helen Kilroy of the CLAI, all paid warm tributes to Mr Justice Kelly for his achievement in leading the establishment of the Commercial Court.

The judge lead the Commercial Court from 2004 to 2014 when it dealt with many high-profile cases arising from the financial and property crash, including marathon litigation involving businessman Seán Quinn and members of his family.

During that litigation, Mr Justice Kelly remarked he had had to deal with cases involving “national and international fraud, sharp practice, chicanery and dishonesty” but had never seen anything like the conduct in the Quinn case.

During its second decade, the Commercial Court has managed a wide range of litigation, including cases concerning intellectual property and data protection. Its current caseload includes extensive litigation concerning properties allegedly damaged by mica and aircraft leasing disputes arising from the Russian invasion of Ukraine.

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