The State should stop suing itself and actively behave as a “model litigant”, says retired High Court judge Deirdre Murphy.
After a law career spanning more than 40 years, Murphy is concerned the increasing “corporatisation” of law here, the dominance of big firms, mounting pressures threatening smaller firms and too many barristers are contributing to a “broken” legal system.
The big firms “have no interest in challenging the status quo, in challenging things that should be challenged”.
A long-time advocate of the model litigant obligation (MLO) in line with a policy approach pursued by Australia, Murphy welcomes the Government’s approval late last month of clear principles to guide State agencies in their approach to litigation. Prepared by Attorney General Rossa Fanning, the principles will be published on Wednesday.
Murphy, who has addressed the Chief State Solicitor’s Office about the MLO, says active pursuit of the policy is about law operating as “a powerful weapon” in the pursuit of fairness.
“The principles are simple. The State has no private interest in the outcome of litigation, the State is the guarantor of everybody’s rights, it should be the moral exemplar and not the little fiefdom of various individuals.
“All law is about human rights. I always approach cases on the basis every case has merits, find out what the merits are and run the case on the merits, not on loopholes and technicalities.”
As a High Court judge, she was exasperated by several examples of the State suing itself, including a case by the National Museum against the Department of Social Welfare. “What are we at? The politicians used to go mad about this.”
Given the multiplicity of State agencies, an alternative dispute resolution mechanism should be established to deal with disputes between different emanations of the State, she says. “That should have been done years ago.”
Changing the mindset of civil servants about briefing and about the approach to litigation is key, she says. “It is all about understanding what the role of the State is: it’s to help citizens. It doesn’t stop the State vigorously defending cases that should be defended.”
Where there is a policy vacuum, there is often litigation with people looking for different things, she notes. “If the State has a rational policy, the courts will follow it.”
What the State needs to abandon are “strategies” involving fighting cases to the point of discovery before settling them, she says.
Such strategies often mean that those who can afford to pursue the State through the courts will get an outcome while the ordinary citizen will lose out, she says. She declines to comment on the strategy of several governments in seeking to minimise the State’s liability in litigation over illegal nursing home charges imposed on some medical card holders.
Asked about concerns that settling some litigation or admitting liability might expose the State to payment of huge sums, Murphy is blunt. “If it’s wrong, it’s wrong. If you take the line that this is going to cost a fortune, then you should have done it right in the first place and you wouldn’t have exposed the State to paying a fortune. When you know there is a problem, deal with it, don’t let it fester and then say the State cannot afford to pay for a problem it has actually created.
“The cost is not the measure. It’s about access to justice which is becoming more limited as the bigger firms are taking over. I think the system is broken, there are too many barristers scrabbling for too little work, monopolies of big firms, the briefing policy, pressures on the smaller solicitor firms.”
The MLO is a policy approach, meaning there is no entitlement to sue over breach of it, but it could be a factor for the courts when making decisions on costs issues, she says.
“There is no incentive to settle State cases because it’s not an individual’s money. The MLO approach is about mindset, about what the function of the law is.”
Positive steps have been taken by some State agencies, she says. “The State Claims Agency has improved dramatically in recent years. When I started, if you were running a medical negligence case, it was fought to the last degree. Now you see them regularly settled and accepting a liability where a liability exists.”
A lot of prisoner litigation might be avoided if prison governors and other respondents would just reply to letters of complaint, she adds. “If governors would just write back and say: ‘Would you please specify exactly what your client’s complaint is; I’ll deal with it’ that would burn off half of them. If you just send a letter and it’s all deny, deny, they bring a judicial review. ”
There are some “ambulance chasers” but the way to deal with them is to “call them out at the beginning”, she says. “The response of the agency being challenged is very important. If they engage at the beginning the matter might never go to court at all.”
These are among the ways the State could be more sensible with public money when it comes to litigation, she says.
“Legal aid,” she firmly believes, “is not the answer. What you want is an interested solicitor and barrister who will go to bat for the citizen.
“I once did a case for a bigger firm, my mindset didn’t fit. People told me I didn’t charge enough. The bigger firms want to brief somebody who will charge a fortune so that they can justify charging a fortune. ”
During a visit to Ireland some years ago, a former Australian high court judge, Justice Michael Kirby, referred to law as “a moral profession”, she recalls. Kirby came to that view as a young solicitor representing an Aboriginal activist convicted of public order offences after opposing a cinema’s discriminatory seating policy. Years later, the magistrate who had found against his client wrote to him saying he had to do so as a matter of law but wanted to let Kirby know that, within days of losing the case, the cinema changed its policy.
“He lost his case but he won his cause,” says Murphy. “The noblest of human pursuits is the pursuit of fairness and law is a powerful weapon in that regard.
“I think it’s not used sufficiently in that way but I got to practise law the way I thought it should be practised for 42 years. The reason I did was because we had a system and set up that allowed for that.”
When she went to the Bar in 1981, there were 300-400 barristers and perhaps a few thousand solicitors’ firms, most of them small, one-person offices, she says.
“Each of them had real access to barristers. I was blessed because there were solicitors who were prepared to take on cases that weren’t popular and that would hold power to account.”
They included Simon Kennedy in New Ross who represented Eileen Flynn in challenging her dismissal from her teaching job arising from her pregnancy and non-marital relationship with a separated man.
The ability of smaller firms to take such cases is changing, Murphy fears, and she endorses concerns voiced by Law Society president Maura Derivan about a declining number of small firms.
“The amount of regulation, administration, that is all having an impact on the ability to run a firm now, it is putting smaller firms under pressure and that means they don’t have the time or means to take the kind of challenges they used to take.”
The dominance of a small number of huge law firms, and an influx of big firms from abroad, “is changing the face of our legal system”.
“The bottom line is profit. Who is representing the ordinary person?”
The big firms are “hoovering up the talent” from university level onwards, she says. “They all have their pro-bono sections, but none of them are actually in the business of representing the ordinary citizen. All of that affects access to justice and law as a moral profession. There are still some notable exceptions but they are exceptions.”
She believes “far too many barristers” means less collegiality and less work, especially at the junior Bar. “It’s cut-throat.”
That situation can contribute, she believes, to some “unmeritorious” litigation. “If you’re scrabbling to survive, you’re not going to be very collegiate and, perhaps, if you get a case from the State, you could drag it out longer than it warrants. ”
As a major briefer of the big firms, the State has a role in addressing this situation but there are issues about how it briefs lawyers as well as about how it conducts litigation, according to Murphy.
The Prosecution of Offences Act 1974 setting up the office of the Director of Public Prosecutions set out principles for briefing barristers for prosecution work, she notes.
The Act requires, inter alia, work to be distributed in a manner which, in the opinion of the Attorney General, is “fair and equitable” but that does not happen, says Murphy. “The big firms have cornered the State market. Everything is being funnelled to them and at the same time the pressure on the smaller, regional firms is being increased by swingeing regulation.”
The 1974 Act should also apply to solicitors and both the Bar of Ireland and Law Society should demand more equal distribution of State work, she says. “We’re talking about the people’s money. A fair and equitable distribution of State work will make the system better because work will be distributed among those capable of doing it and not just the favourites of particular people.”
When told this reporter’s request under the Freedom of Information Act for the identities of the top 20 earners under the criminal legal aid scheme was refused on GDPR grounds, Murphy shakes her head. “GDPR, the great protector of the Civil Service”.
As a barrister, after Murphy raised issues about how prosecutors were appointed around the country, the opaque manner of appointment was altered and prosecution jobs were advertised.
Fair and equitable distribution of State work is an important facet of the State as a model litigant because it improves access to justice, she says. “The control over this work by the big firms is also driving up costs. It is not in the interests of the big corporate firms to challenge the State. It is the domain of the wealthy and the powerful and of course the State is one of the powerful.”
Public procurement rules, she believes, are “designed to aid the powerful rather than the less powerful”.
The increasing number of personal litigants represents “a failure of law”, she adds. “A number of the people caught up in the financial crash had good cases but where were the lawyers to represent them? They didn’t have access to lawyers so they came in and started running their own cases. Some got a taste for it, which doesn’t help. Some find themselves going to various entities and that in turn creates a real problem for the courts with delays, etc.”
A mechanism for smaller law firms to pool administration and regulation compliance could mean they could get on with running cases, she suggests. “It would be a means of allowing small firms to continue to represent the ordinary person because they are the only ones who do”.
Murphy retired last March, just a few weeks after the Government approved recommendations by the Judicial Planning Working Group to appoint more judges. She describes the pressures on the High Court as “relentless” and says litigation, for reasons including the GDPR, is becoming increasingly complex.
The pressures on the High Court were part of her motivation for writing, with some judicial assistants, a 2020 paper in favour of MLO. “My view was that the State could help ease the burden, stop suing itself, settle cases that should be settled and leave the cases that have to run to run.”
Despite the pressures and her concerns, Murphy wants to be of more service. “The only sadness I have about being retired is that my formal career as a lawyer is over. Hopefully I’ll find something useful to do. I don’t miss the unrelenting pressure of judgments but I would like to do something.”
