Only ‘paupers and millionaires’ can afford court – judge
Middle class faces financial ruin in High Court: Kelly
THE squeezed middle is being priced out of justice and a cap on lawyers’ fees is required to protect them from financial ruin in the courts, a leading judge has warned.
The issue is being examined as part of a review of how justice is administered in the civil courts. High Court President Peter Kelly, who is chairing the review, said legal fees have risen to such an extent that it simply wasn’t feasible for many people to litigate.
“If you are a pauper, yes. If you are a millionaire, yes.
But if you are a middle-class person on a middle-class salary, litigation in the High Court is potentially ruinous,” he said.
Mr Justice Kelly has spoken about the possibility of judges making assessments at the beginning of trials that a case should only take a certain number of days and then putting a cap on costs.
A CAP on lawyers fees is needed as middle-class people potentially face financial ruin if they litigate disputes in the High Court, its president has warned.
The issue is being examined as part of a major review of the operation of how justice is administered in the civil courts.
High Court President Peter Kelly, who is chairing the review, said action was needed as legal fees have risen to such an extent that it simply wasn’t feasible for many people to litigate in his court.
“If you are a pauper, yes. If you are a millionaire, yes. But if you are a middle-class person on a middle-class salary, litigation in the High Court is potentially ruinous,” he said.
“So that is something that is going to have to be looked at. Fees are going to have to be capped in some shape or form.
“We all know of cases where the fees are a multiple of what is actually at stake. And that applies across the board for all the courts.”
How a cap on fees would be implemented is as yet unclear.
However, Mr Justice Kelly has previously spoken about the possibility of judges making assessments at the beginning of trials that a case should only take a certain number of days and that costs would not be allowed to exceed a specified amount as a result.
Reducing the cost of going to court is one of a number of issues being examined by the review group, made up of judges, Government and Courts Service officials and representatives of the Law Society and the Bar Council. The group is expected to report to the Justice Minister next year.
Also being examined is the law on discovery, a pre-trial procedure where parties in civil actions disclose documents of relevance to the other side.
Concerns have been expressed about the amount of time and money taken up with the procedure.
Mr Justice Kelly said the issue “may require a radical solution”.
“You could start with the very dramatic proposition that perhaps we shouldn’t have any discovery at all,” he said.
The judge cited the example of Scotland, which has a different legal system to Ireland. It has no discovery procedure, but more restricted ‘recovery’ where a court order for the handover of documents can be sought if it is demonstrated they are relevant.
“They don’t have this swamping of the other side with huge masses of documents,” Mr Justice Kelly said.
The High Court president said that his career as a barrister and a judge had only involved two cases “where the pivotal, decisive factor in a case was something that was thrown up on discovery”.
“For the most part it was a waste of time and resources,” he said.
Mr Justice Kelly said under the Irish system, particularly in commercial cases, the “more mighty of the parties to the litigation can break the other side” by insisting on discovery which is far in excess of what is needed.
Mr Justice Kelly was speaking at a workshop, organised by Attorney General Séamus Woulfe, and attended by parties who have made submissions to the review.
The judge’s remarks on discovery were echoed by Bar Council chairman Paul McGarry SC, who is also on the review group.
Mr McGarry said discovery in Ireland was “a huge problem” and correctly perceived as being “extremely expensive”.
“It can be used by wealthier litigants to slow down the process or run down opponents and so on,” he said.
‘We know of cases where the fees are a multiple of what is actually at stake’