The most pervasive and intractable weakness of our civil justice system is that it does not provide reasonable access to justice for any but the wealthiest individuals, the small minority in receipt of legal aid, or those with “no foal no fee” arrangements with their lawyers.
This failing was exacerbated by the financial crisis, resulting in budget cuts to the Courts Service, as well as by an increase of cases brought as a consequence of the crisis.
There is a growing awareness of the problem as well as of a consensus that major reform is required. The Chief Justice recently stated that the family law courts in Dublin are being operated in “dreadful conditions”, and he also warned that the Four Courts complex is “beyond breaking point” due to capacity issues.
Providing real access to justice is a complex challenge with many dimensions.
Firstly it requires access to an effective system of legal aid. There remain very serious and significant gaps in Ireland’s legal aid system, both in terms of the limited coverage of that system, defined as it is by extensive exclusions and with strict requirements of financial eligibility. Indeed, there is a perception that legal aid is not available in respect of one of the biggest issues of the day, homelessness and housing-related issues, due to the exemption in relation to rights and interests over land.
Employment claims
There is no legal aid for employment and anti-discrimination claims before the Workplace Relations Commission, irrespective of the complexity of the issue or the vulnerability of the claimant.
Access to justice requires much more than access to legal aid. The legal system is for the most part designed by lawyers for use by lawyers and is therefore predicated on an assumption that litigants will have legal representation. The organisation of the courts, as well as legal and procedural rules on standing, costs, delays, class actions, multi-party actions and other practical obstacles may restrict the ability of people or groups, especially if disadvantaged and vulnerable, from making or defending claims.
These are not theoretical or abstract problems: Free Legal Advice Centres (Flac) is contacted on a daily basis by individuals who are trying to navigate the court system without legal representation and who struggle with inaccessible court forms, procedures and language. Due to the limitations on the availability of legal aid, these litigants are unlikely to ever obtain legal representation. Flac’s services cannot make up for this deficit.
How to respond to some of these challenges is addressed in important recent study by Gráinne McKeever and the University of Ulster called Litigants in Person in Northern Ireland: Barriers to Legal Participation. This recommends a change to recognise that lay litigants have different requirements to solicitors and barristers, including additional time required due to their lack of familiarity and understanding of legal procedures.
It recommends establishing a task force to create a charter of rights and responsibilities, which all litigants and court actors are required to comply with. It also recommends that any future reforms of the legal system should be inclusive of multiple perspectives, including that of litigants themselves.
In the UK the recent Briggs report into the state of the civil courts has offered a radically new approach to the resolution of civil disputes, with its recommendations for the introduction of an online court. This would enable individuals and small businesses to vindicate their civil rights online, in a range of smaller cases.
Online services
Advances in the sophistication of online services and the large increase in the proportion of court users for whom online communication is both easy and normal make an online court designed for litigants-in-person a practicable proposition for the first time. It is surely time for consideration of this method in Ireland.
Other initiatives to deal with the barriers to access to justice include the development and enhancement of the tradition of pro-bono practice by legal professionals. This has always played an important role in the legal system, principally through the “no foal no fee” system, but it has become increasingly formalised in recent years through the work of Flac’s pro-bono project known as PILA. Recent years has seen a definite growth in the perspective that pro-bono practice is part of the professional responsibility of a lawyer. In that regard, it is significant that two large law firms have appointed a pro-bono associate to manage the firm’s pro-bono practice.
Seeking access to justice for all must no longer be an aspiration: with a commitment to reform all should be able to vindicate their rights and more easily access effective procedures for resolving issues which any individual in our society could face.
Eilis Barry is chief executive of Flac. The Flac@50 Access to Justice conference is being held tomorrow in association with the TCD Law School