High Court urges culture change in costs regime

The Master of the High Court has expressed serious concern about the mounting cost of litigation and has urged a range of measures to reduce legal costs. These include the State refraining from pursuing appeals to prove it is “never wrong” despite a judge deciding otherwise.

The Master also complained there was “no overall management” of litigation.

Master Edmund Honohan said court procedures were “not set in stone”, could be rewritten and that procedural changes were needed.

The courts were using “a late 19th century procedural model for complex, early 21st century disputes” and just starting to develop “mature standards of judicial review”, which the US courts had been using for more than 50 years, he said.

The courts had become the “regulator of government, its agencies and officials”, and the Irish courts must be ready, willing and able to discharge that responsibility speedily and at proportionate expense for all concerned, he said.

The Master, who deals with pre-trial matters, has proposed that public law cases should only be brought on notice to the other side and notice parties, and with the leave of the court.

He also suggested there was “no technical reason” why the leave stage, properly case-managed, could not be upgraded to a full hearing, thus avoiding “pointless debate” as to whether the case was arguable or not and instead dealing with and deciding on the claim.

He dismissed “lurking objections” that such an approach could “open the floodgates” for appeals before “an overworked Supreme Court”.

If both sides accepted the decision of the court, either refusing or granting leave, that would have enormous costs and time savings.

There were obvious cost implications for the public purse given the rise in public law litigation and it was time for a “culture change” on the part of both the State and litigants, he said.

The State “should not be so insistent on proving it is never wrong” but, equally, if the State had “a knockout point”, that would prevail. An early ruling of the case was clearly preferable for a citizen plaintiff, win or lose, than “a saga of litigation”.

In his experience, all cases involving claims against the State had the “same key ingredients” and “same underlying structure of law”, he added. A “clearheaded analysis” would usually show plaintiffs’ cases were still about the interpretation of a statute and/or the legality of a discretionary decision and needed no plenary hearing, oral evidence or discovery of documents.

The Master also said there was “no overall management” of litigation with case management having never progressed much “beyond an initial burst of enthusiasm”.

The “occasional procedural reform”, whether by the Oireachtas or the Rules Committees of the superior courts, were ineffective because of “professional inertia” and failure to impose “effective cost sanctions” on parties who flout the rules, he said.

“Intelligent procedural changes” could make a significant difference, and securing cost-effective and speedy trials could only be regarded as contributing to the perception and reality of justice, he said.

He made the comments when dealing yesterday with “extensive” discovery applications in three different cases, all brought against the State, State agencies and public authorities, which opposed discovery.

The common feature in all three cases, even if the plaintiff’s factual claims were true, was an issue or issues of law, which could prove fatal to the plaintiff’s claims or the defence’s, he said. If the cases could have been litigated following the judicial review procedural model, the issues could be determined fairly without expensive discovery, he said.