The Government looks set to endorse a plan for wide-ranging changes to the State’s civil justice system. Many of the reforms, set out in a report by a review group chaired by retired High Court president Peter Kelly, are overdue and will make a difference in turning this slow, cumbersome system into a more efficient and accessible one. The report recommended, among other things, tightening the scope of judicial review, providing for faster hearings of challenges, better case management and legislation for a new system of discovering documents.
However, the Government is to defer a decision on the one area that, more than any other, affects access to justice and shapes perceptions of the legal system: costs. It has been clear for years that litigation costs in Ireland are among the highest in the developed world. That damages Ireland as a place of business. More importantly, it results in a system that favours wealthy litigants, disadvantages the ordinary citizen and damages faith in the State and its institutions.
In 2017, then chief justice Frank Clarke remarked that it had "increasingly become the case that many types of litigation are moving beyond the resources of all but a few". Finding ways to reduce those costs was part of the remit of the Kelly review group, but it was the one issue on which it could not find unanimity. The majority supported introducing non-binding guidelines on cost levels, but a minority, including Kelly, favoured a mandatory scale of maximum costs to be set by an independent committee established by law. Joining the minority were representatives of four major Government departments, which are among the biggest spenders on litigation. With the exception of Kelly, all judges and legal sector representatives favoured non-binding guidelines (the group did not include any civil society members).
The issues have been clear for some time, and at a certain point Government must make a decision
The minority makes a more cogent case. Citing persuasive international evidence, it argues that procedural reforms, efficiencies and guiding principles alone will not bring full transparency, predictability and competitiveness in the setting of litigation costs. Nor will they reduce those costs. The majority argues that a scale of maximum costs may infringe EU competition law, but the European Court of Justice has previously rejected challenges to such scales elsewhere. Another majority argument – that costs would gravitate towards the permitted ceiling – seems to assume that lawyers could not compete on costs. Moreover, many countries with fixed cost systems have lower litigation costs than Ireland.
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The Government has commissioned economic research into the costs issue. That is a reasonable step, but the issues have been clear for some time, and at a certain point Government must make a decision. That decision must be informed above all by the needs of those who must use the court system rather than those who work in it.