The Courts Service’s 2017 annual report1 released on 17 July 2018 gives a deep insight into how the Irish courts work. Volumes of litigation ebb and flow in particular areas of activity, reflecting economic and social changes. The courts system constantly evolves to respond to those changes.
The Irish courts received over 655,000 new cases in 2017. One-third were civil cases and almost two-thirds criminal (the vast majority minor, with almost 400,000 minor offences dealt with in the District Court). There was an increase in new civil cases in all Irish courts except the High Court. Almost 129,000 new contentious civil or commercial cases were begun in Ireland in 2017.
The Courts Service has been building its physical, human and communications infrastructure. After years of budgetary constraint, there is now some scope for investment. Several new courthouses were completed, providing enhanced facilities for court users. There was significant investment in staff learning and training and an increase in court staff numbers after many years of decline. Work on information and communications systems, in and outside court, has continued: the Courts Service On-Line (CSOL) project allows personal insolvency practitioners and small claims applicants to interact remotely and provides an improved licensing service. Plans are being rolled out to develop online applications for leave to appeal to the Supreme Court and to the new Office of Legal Costs Adjudicator.
The Supreme Court saw a 16% increase in new appeals, and doubled the number of new appeals it resolved. However, despite using all available resources, new appeals lodged in the Court of Appeal exceeded the number completed. Waiting times in the Court of Appeal have reached problematic levels and its effectiveness is being inhibited by insufficient judicial resourcing. While the High, Circuit and District Courts could all benefit from modest increases in the numbers of their judges, the case for increasing the number of judges on the Court of Appeal by at least a third is powerful and quite urgent.
Most litigation of any complexity benefits from coming before a judge at an early stage. This encourages parties and their advisors to move towards their real positions more quickly so it encourages earlier mediation or settlement; judicial case management also tends to reduce the risk of protracted, unnecessary or repeated pre-trial applications. However, the lack of judicial resources to undertake case management is reflected in the fact that general case management rules adopted for the High Court in 2016 cannot yet be brought fully into effect.
At High Court and Circuit Court level, there were increases in defamation and personal injury cases, and slight decreases in divorce and judicial separation cases. After several years of increases, the number of real estate possession orders made in both the High Court and Circuit Court reduced in 2017. Debt recovery cases decreased by 9% in 2017 and were significantly reduced in smaller-value claims in the Circuit and District Courts, but slightly higher in the High Court. This strongly implies that the days of crisis debt recovery being the central feature of the Irish litigation scene are happily behind us.
The Commercial Court (a division of the High Court) admitted 193 cases in 2017, a 23% increase over 2016. More Commercial Court cases needed to be decided by the Court (as distinct from settled by the parties). 89 were decided at trial in 2017 compared to 75 in 2016.
Other highlights in civil litigation in 2017 include:
- Personal injury awards totalled €206 million: these ranged from €500 to €15 million;
- Almost half in value (including the largest) in these awards arose in medical negligence awards – totalling €99 million;
- There was an 84% increase in debt settlements to 1,734;
- There was a 19% decrease in self-declared bankrupts – from 559 to 454; and a 32% decrease in creditors seeking bankruptcy declarations – from 69 to 47. There has been a 37% increase in personal insolvency applications over two years - to 2,385 from 2,114 in 2016 and 1,735 in 2015. This seems to suggest that the new personal insolvency regime introduced in 2012 is finally replacing bankruptcy as the preferred resolution option for distressed debtors and more importantly for their significant creditors;
- There was a 37% reduction in 2017 in cases for specific performance relating to a contract, and 32% for breach of contract;
- There was a 58% decrease in employment dismissal appeals, from 121 to 50, in 2017, perhaps reflecting the tightening in the labour market which makes dismissal very much a last resort;
- Surprisingly, there were no applications at all to disqualify company directors in 2017, compared with 47 in 2016; and a 50% reduction in the number of applications to restrict directors, from 29 to 14; this may again reflect that cases involving dishonest or irresponsible conduct by directors of companies sunk by the financial crisis have mostly washed through the system.
Introducing the annual report, Chief Justice Frank Clarke, who arranged the first televised sitting of the Irish Supreme Court in 2017, issued an appeal for greater clarity and simplicity in EU and domestic legislation. Legislation is often unnecessarily complex, too prescriptive and too frequently amended, leading to shifting legal interpretations and more and longer litigation, which in turn risks causing valuable but contentious projects to be held up for too long or even abandoned.
The Irish courts system is nimble and reactive to changing dispute resolution needs and international best practice. It is under scrutiny as an obvious option as neutral jurisdiction of choice in cross-border contracts where an EU passport for civil and commercial judgments may be desirable after Brexit. It faces some challenges, notably the need for additional judges. But it also has significant advantages. It is an English-speaking common law system within the EU, with judges who are comfortable dealing with the many cross-border business disputes which are already litigated in Ireland because of Ireland’s positioning as an open economy and “gateway to Europe”. Its most notable asset remains its enviable reputation for independence and integrity. With a little more investment, it will be very well-positioned to meet the diverse and perhaps unexpected new challenges of 2018, 2019 and beyond.