Second Stage – Seanad Éireann – 7 December 2015
Statement by the Minister for Justice and Equality
Frances Fitzgerald TD
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Introduction
Cathaoirleach and Members of the House ,
I am pleased to have this opportunity to introduce the Courts Bill 2015 to the House and I look forward to engaging with Members as we progress the Bill through the various stages.
Purpose of the Bill
This Courts Bill is brief in content having just one single purpose – an increase in the maximum number of High Court judges from 35 to 37. Under Article 36 of the Constitution, the number of judges of the different courts is fixed from time to time by legislation. The existing ‘cap’ on the number of ordinary judges of the High Court was set in 2007 by the Courts and Court officers (Amendment) Act. That Act, as is the case with the Bill before the House today, amended the Courts and Court Officers Act 1995 by providing that there shall be no more than 35 ordinary judges of the High Court.
The best part of a decade therefore has passed since the last adjustment of the statutory number of High Court judges. I’m sure Senators will acknowledge the growth, over that period of time, as in so many other areas, in the volume and complexity of proceedings and litigation coming before the courts system as a whole. While the pressure on the Courts has been managed very effectively and professionally indeed by the judiciary with the very able support of the Courts Service, in some important areas of High Court business waiting times are longer than any of us would want them to be.
But the allocation of a further two judges to the High Court isn’t solely about addressing waiting times although this measure will address in particular the waiting times being experienced in the Central Criminal Court. In fact, it is more to do with ensuring the Court can work more efficiently, for example by reducing the number of reserved judgements that are handed down. I will return again in a few moments to the position in the Central Criminal Court and the question of reserved judgements.
A separate problem, but one which is particularly acute and which I cannot overlook, is the recent loss of a significant number of judges from its ranks in the High Court, with a considerable consequential loss of experience. Some of this loss is of course accounted for by retirement but I would also remind Senators that only one year ago no less than nine High Court judges were appointed to the new Court of Appeal. That initiative of course of itself has had a very marked positive impact on the problem of delays in hearing appeals, and in passing, I want to acknowledge the Trojan work of the new Court and the headway it has made in the past year. However, perhaps inevitably, there have been certain repercussions in the sense of the depth of judicial experience that was drawn from the High Court.
Those judges have of course been replaced by a strong cohort of new judges, but nevertheless I feel we should take the point about the loss of experience and its effect on the High Court.
Another factor that I should mention that has had a real effect on the progress of proceedings in the High Court is the increase in the number of lay litigants. Cases involving lay litigants can take longer because of the relative inexperience such litigants can have of court procedures. More and more lay litigants are coming before the court, as is of course their right, but because lay litigants tend not to have the experience of proceedings, there is a marked trend in these instances in increased times for proceedings.
All of these factors are leading to increased waiting times for cases to be heard in some areas of the Courts and to an increase in the number of cases not proceeding on days listed for hearing as well as a significant number or reserved judgments.
It was to address these issues and more generally to provide for greater efficiency in the conduct of its affairs that, having consulted with the senior judiciary, I requested Government to approve additional resources in the form of two additional judges of the High Court.
Briefly, the actual provision, which as I have indicated is just a net change in numbers, amends section 9 of the Courts and Court Officers Act 1995, as amended by the Courts and Court Officers (Amendment) Act 2007, to provide that the number of ordinary judges of the High Court shall not be more than 37 – an increase from 35 set in 2007.
I think it is worth looking a little more closely at the developments and trends in different areas of proceedings before the High Court that underline the business case for the assignment of two more judges.
Pressure points in the High Court that the Bill will substantially alleviate include the number of cases where reserved judgements are given. While there are good reasons for reserving judgements in many cases, giving judges time to reflect on evidence and the law, the amount of these is of particular concern to the judiciary. Clearly this can be most unsatisfactory from the point of view of all concerned, not least the parties to the action or matter at hand.
Reserved judgements are frequently handed down in judicial review matters, commercial court cases and chancery actions. The increase in the number of reserved judgements can perhaps be seen as an unintended consequence of the efforts being made by the judiciary to stay on top of waiting lists across the various areas of court business.
In the Central Criminal Court, a marked trend is the increasing duration of trials due to the greater complexity of evidence coming before the Court. Waiting times here are a matter of concern. I note that recently the President has found it necessary to appoint a fifth judge to the full time hearing of cases in the Central Criminal Court. Currently waiting times for trials of 18 months approximately can be very difficult for all concerned and of course particularly distressing for victims of crime and their families. In many instances cases cannot proceed on the date listed for trial and this has implications for costs for practitioners and witnesses. So I am particularly concerned about this and I anticipate that the allocation of an extra judge to that Court will help to alleviate this.
Medical Negligence litigation nowadays represents a sizeable portion of business before the High Court. Because of the lengthy duration of most of these actions, the President of the High Court makes a very convincing case for the deployment of judicial resources to manage these actions at the earliest opportunity. I agree fully that early intervention by a judge offers the best prospects of limiting the duration of hearings by early identification of issues which can lead to earlier settlement. I think this would be helpful to families who are so often involved in these difficult and upsetting cases. Better and proactive management of these actions is likely to lead to savings in the amount of costs of litigation for actions where frequently the taxpayer must foot the bill.
This is one of the reasons why I have introduced new legislative measures for pre-action protocols for medical negligence cases as an amendment in this House when it was considering Committee and Report Stages of the Legal Services Regulation Bill during the last two weeks.
The new Companies Act is predicted to generate an increased level of company law related applications to the High Court. These applications, many of which relate to the restriction of directors of insolvent companies can take a number of days of court time and it is estimated that at least one extra High Court judge will be required to manage this business.
Judicial reviews of decisions of courts and other bodies where reliefs and remedies are sought arise frequently in such areas as planning matters, challenges to the constitutionality of legislation, Habeas Corpus matters and debt cases. It’s a critical area of activity for the Court and more judicial resources are needed here – practically all judicial reviews require written judgements.
Conclusion
In concluding the introduction of this Bill before the Seanad, I consider that the very straightforward measure of itself will, once appointments are made, have a far-reaching and very positive impact on the work and output of the High Court. I believe it is a very worthwhile measure to underpin the efficient conduct of business right at the centre of the administration of justice in the State
Overall therefore, while the Bill is a response to the amount of cases coming before the High Court including judicial reviews, medical negligence actions, asylum applications and company law related applications, its specific benefits will be to enhance the efficiency with which the business of the court is managed as a whole and how judgements are handled in particular.
This Bill further represents the determined approach of this Government to enhance the efficiency of the administration of justice as evidenced by bringing into existence last month a second Special Criminal Court and last year the establishment of the Court of Appeal. And there are further reforms underway to bring about greater efficiencies and streamline matters in the courts including proposals for a new system of Family Courts.
I thank Senators for their support for, and engagement with this important measure. It represents an important step forward and I look forward to our debate on the matter and I commend the Bill to the House.