The Supreme Court does not have the capacity to promptly process the volume of civil cases appealed from the High Court, Chief Justice Susan Denham told a seminar on court reform at the weekend.
The current situation at the Supreme Court and the Court of Criminal Appeal was “unsustainable”, “untenable” and “cannot be defended”, she said.
An appeal certified as ready yesterday was in danger of not getting a date for hearing until mid-2017, the Chief Justice said, and 543 cases were currently ready to be heard.
Some 71 of these had priority listing and would wait just over nine months to be heard; an ordinary appeal would wait four years.
“The structure of the superior courts in Ireland was not designed to cope with the volume and complexity of the litigation coming before the courts daily in the 21st century,” she said.
Her remarks were made following a pledge from Minister for Justice Alan Shatter that a referendum would be held in late autumn to introduce changes to the courts to allow for a more efficient system of appeal.
The changes envisaged include a new civil court of appeal as well as a separate system of family courts.
Reform of Article 26, which allows the President refer new legislation to the Supreme Court to check if it is compatible with the Constitution, is also being considered.
Constitutional reform
Mr Shatter and the Chief Justice were addressing a seminar at the Law Society in Dublin on constitutional reform relating to the courts.
Mrs Justice Denham highlighted the growth in the number of High Courts from seven in 1968 to 36 today. Over the same time the Supreme Court had enlarged from one to two divisions. And the eight members of the Supreme Court also chair the Courts of Criminal Appeal.
This created “a bottleneck” in the Irish courts system, she said, and the complexity of cases also contributed to delay.
Mrs Justice Denham also highlighted the importance of a speedy resolution process to a successful economy, and said a failure to address delays may be damaging to Irish society and the economy.
She said the best solution to the backlog would be a new court of appeal incorporating a criminal division and “appointed on a permanent basis with a permanent cadre of judges”, as had been recommended by the Working Group on Court of Appeal, which reported in 2009. The new court should be established in law and provided for in the Constitution using a consolidating amendment.
She also said in making changes to the courts, it was “critically important” not to impinge on the independence of the judiciary.
Preliminary work
Mr Shatter acknowledged that a target of an autumn referendum was ambitious, but said there had already been some preliminary work undertaken. He also said the creation of a court of appeal had been given “added urgency” by the recent decision of the Chief Justice to stop taking new priority cases.
He agreed the workload of the Supreme Court was unsustainable, and said the delays would be even worse if it were not for the “ingenuity” of Mrs Justice Denham.
Attorney General Maire Whelan SC also addressed the seminar and said Ireland could learn from the experience in New South Wales where a court of appeal was established and caused “a disturbance in seniority among judges”.
An article by a retired judge suggested this could have been handled with greater sensitivity and more consultation.
Ken Murphy, director general of the Law Society, David Nolan SC, chairman of the Bar Society, and Thomas Cooney, special adviser to the Minister, also spoke at the seminar.
