The government appears ready to approve a plan for far-reaching changes to the state’s civil justice system. Many reforms, set out in a report by a review group chaired by retired High Court President Peter Kelly, are overdue and will help turn this slow and 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 on challenges, better case management and legislation for a new document discovery system.
However, the government must defer a decision on one area that, more than any other, affects access to justice and shapes perceptions of the justice system: costs. It has been clear for years that legal costs in Ireland are among the highest in the developed world. This hurts Ireland as a place of business. More importantly, the result is a system that favors wealthy litigants, disadvantages the ordinary citizen, and undermines trust in the state and its institutions.
In 2017, then-Chief Justice Frank Clarke noted that it was “increasingly common for many types of litigation to be beyond the resources of all but a few.” Finding ways to reduce those costs was part of the Kelly Review Group’s mandate, but it was the one issue on which it could not achieve unanimity. The majority supported the introduction of non-binding guidelines on cost levels, but a minority, including Kelly, favored a mandatory scale of maximum costs to be set by an independent committee established by law. Joining the minority were representatives from four major departments, which are among the biggest spenders on litigation. With the exception of Kelly, all judges and justice sector representatives favored non-binding guidelines (the group did not include any members of civil society).
The problems have been clear for some time and at some point the government has to make a decision
The minority makes a more convincing case. Citing compelling international evidence, he argues that procedural reforms, efficiencies and guiding principles alone will not bring full transparency, predictability and competitiveness in setting court fees. Nor will they reduce these costs. The majority argue that a maximum cost schedule can breach EU competition law, but the Court of Justice of the European Union has previously dismissed challenges to such schedules elsewhere. Another majority argument – that fees would gravitate towards the permitted cap – seems to assume that lawyers could not compete on fees. In addition, many countries with fixed cost systems have lower court costs than Ireland.
The government commissioned an economic study on the issue of costs. It is a reasonable measure, but the problems have been clear for some time and, at some point, the government must make a decision. This decision must be informed first and foremost by the needs of those who must use the justice system rather than those who work in it.