Irish litigation procedure is sometimes criticised for the focus on oral presentation. Why, critics ask, in matters of pure legal argument with no witness evidence, should a court need to hear parties’ oral arguments when it has their written arguments? Is this not just duplication and waste of resources?
This criticism was recently considered by Clarke J in the Supreme Court,1 in a case where the court allowed aspects of the appeal to proceed “on the papers” only without oral argument. The starting point is Article 34.1 of the Constitution which requires justice to be administered in public, subject to limited exceptions mandated by law, so that especially sensitive matters are heard in camera or are not permitted to be reported otherwise than on an anonymised basis. Much work has recently been done to balance the public interest in effective reporting of such cases with the protagonists’ privacy rights.
The court observed that the function of written submissions in the higher Irish courts, especially at appeal level, has been changing. In the past, written submissions were treated as outlines of the oral argument to be made in court, and subservient to oral argument. Increasingly, written submissions are an independent, more substantive, part of the process. Frequently, parties rest parts of their case on what is said in their written submissions without elaboration in oral argument. Indeed, certain applications, including applications for leave to appeal to the Supreme Court, are permitted by law to be decided on the papers2 without oral hearing. The Supreme Court has, since 2013, permitted public access to written submissions, subject to exceptions consistent with privacy laws.3 Notices of application for leave to appeal, replies and the court’s determinations on leave applications are published. Thus, where the Supreme Court deals with all or aspects of an appeal without an oral hearing, there is public access to the arguments.
However, the court warned, just because it is sometimes possible to deliver justice in public without an oral hearing, does not mean that such an approach is always, or even often, desirable. While superficially oral hearings are seen as adding to the time and expense of litigation, experience shows that dispensing with an oral hearing rarely involves significant saving in judicial resources. This is because the time spent in court is only a fraction of the total time spent by judges working on an individual case, especially on appeals where there is often voluminous and complex evidence and material on which the appeal is to be decided in the record of the case at first instance.
Judges, especially on appeal, generally spend less time in considering and deliberating on the issues where there has been an oral hearing. Almost inevitably, an oral hearing leads to the issues becoming clearer; sometimes issues drop away entirely. Issues may become refined or a greater measure of agreement between the parties emerges at an oral hearing than appears from written submissions. The time saved during the court’s deliberation stage is almost always at least equal to the time spent on an oral hearing and often greater. In an oral hearing, the court and the opponent often push a party from its best case (as set out in its written argument) to its real case, and will persuade a party to drop arguments which will not ultimately succeed. Though not mentioned by the Supreme Court, an imminent oral hearing also provides a good window for settlement, where possible.
The court concluded that the approach in this case of dispensing with an oral hearing remains the exception and that oral hearings will continue to be the norm in virtually all substantive appeals. Of course, oral hearings are not themselves unconstrained; courts at all levels have adopted many new measures to improve the efficiency of oral hearings and balance the rights of the parties before the court with those of litigants waiting their turn. Ultimately, it is for the court to decide whether an oral hearing will involve a saving in use of judicial resources. Where, as is usually the case, an oral hearing is held, the court will ensure that the oral hearing itself takes no longer than is necessary.