Legal costs to face cap under justice review

JUDGES would limit the legal costs lawyers can charge in connection with a court case under new measures being considered by the President of the High Court.

Mr Justice Peter Kelly said judges could make an assessment at the outset of a trial that the case should take no more than a specified number of days – and that the costs would not be allowed to exceed a specified amount.

The cost of litigation is one of several issues being considered by a group, chaired by Mr Justice Kelly, which is conducting a wide-ranging review of the administration of civil justice.

The group is due to report to the Justice Minister next year.

“Under the current system, as they say, the only people who can litigate in the High Court are paupers or millionaires,” Mr Justice Kelly said.

The High Court President made the comments in an interview with the ‘Bar Review’, a magazine published by the Bar of Ireland.

Mr Justice Kelly said a number of things could be done to curtail costs, with one possible solution being an assessment by a judge in advance of a trial.

“An assessment might indicate that a case should take no more than X number of days, and the costs will not be allowed to exceed Y,” he said.

“So if the parties know they can only litigate for a specified number of days and where the cost outcome is going to be limited in advance, it may provide for a more speedy litigation and give people more certainty as to outcome.”

Mr Justice Kelly said the introduction of time limits in all courts might be useful.

“Public time in court is very expensive, both for litigants and the public purse,” he said.

Litigation

The high cost of going to court has increasingly become an issue of concern for senior members of the judiciary in recent times.

Mr Justice Kelly’s comments come just five months after Chief Justice Frank Clarke said most people cannot afford to pursue litigation in the higher courts.

Mr Justice Clarke also said some aspects of civil court procedures were beyond their sell-by dates and “high priority” must be given to questions about practical access to justice.

Mr Justice Kelly’s review group is also grappling with the issue of discovery in court cases, which he described as “the single greatest obstacle in civil litigation”.

He said discovery – where parties to a case exchange information about the witnesses and evidence – “has become a monster”, leading to “huge amounts of time and money” being expended.

Mr Justice Kelly also said a lack of judges was a constant issue he had to deal with.

“Ireland has the lowest number of judges per capita in the OECD, so judges are constantly under pressure,” he said.

“I’ve been president since December 2015 and on no day have I had a full complement of judges available to me, either because of vacancies or illness.”

Recent judicial appointments had gone some way to plug gaps, he said, but at best this was only keeping things running at their current level, which is not sufficient.

Mr Justice Kelly said that if the review group is to recommend better pre-trial procedures, there would have to be scope for the employment of officials without full judicial status to deal with some matters currently dealt with by judges.

He cited the example of Northern Ireland, where six or seven High Court masters deal with certain matters.

“With appropriate safeguards, we could probably use masters to deal with a lot of matters that are at present assigned to judges,” he said.