Strasbourg, 1st April 2004
CCJE (2004) 16
Consultative Council of European Judges (CCJE)
Questionnaire on management of cases, judges’ role in the proceedings, and use of alternative dispute settlement methods: reply submitted by the delegation of Ireland
A. ACCESS TO JUSTICE
1. Measures taken to inform the public on the functioning of the judicial system
It has to be said that there is, in general, a very great awareness of the legal system although not necessarily of its workings amongst the Irish public. The structures of the legal system are taught in schools. The Courts Service website, the official reports of the Courts Service (Annual Reports, Strategic Review), the Courts Service News and the various information office leaflets on aspects of the courts system provide an array of publicly available data to inform the public as to various aspects of the functioning of the judicial system.
The preparation of a Customer Charter is well under way in the Courts Service as it is in most Government departments and agencies
See also the European Consumer Centre at http://www.ecic.ie/index.htm. ECC Dublin provides free information and advice on consumer rights in the EU. ECC Dublin offers assistance to consumers who have disputes with retailers in other EU Member States. ECC Dublin is a member of the European Consumer Centre Network.
A new publication will throw light on legal terminology, which is used throughout the legal, and justice system in Ireland. Titled ‘A Plain English Guide to Legal Terms’ this publication is launched as part to of a national campaign to make the language of the Irish legal system more accessible. This campaign is organised by the National Adult Literacy Agency (NALA) who will launch the publication with the support of the Law Society of Ireland.
2. Measures taken to reduce costs of bringing actions before the courts
(1) It is hoped that the streamlining of the Commercial Court and the employment in it of new technologies will reduce the time and expense of commercial litigation. (2) Measures provided for in recent criminal legislation for the admitting of certain facts by the accused, together with the provision for the reading out of evidence without the necessity of the witness attending by consent have helped to save time and money in criminal proceedings. (3) A scheme to by-pass the Courts in compensation for personal injuries by the Personal Injuries Assessment Board is due to commence very shortly. Its proponents suggest that it will greatly reduce costs.
3. Measures taken to ensure an effective legal aid system as to eligibility and identification of authorities and budgetary arrangements.
The Criminal Legal Aid Scheme: Free Legal Aid in Criminal Cases
The Criminal Justice (Legal Aid) Act, 1962, which is the primary legislation covering the operation of the Criminal Legal Aid Scheme, provides that free legal aid may be granted, in certain circumstances, for the defence of persons of insufficient means in criminal proceedings.
An accused person is entitled to be informed by the court in which he/she is appearing of his/her possible right to legal aid. The grant of legal aid entitles the applicant to the services of a solicitor and, in certain circumstances, up to two counsel, in the preparation and conduct of his/her defence or appeal. In addition, once legal aid has been granted the case cannot proceed unless the accused is legally represented.
The courts, through the judiciary, are responsible for the granting of legal aid. An application for legal aid may be made to the court either.
(a) in person,
(b) by the applicant's legal representative,
or (c) by letter to the Court Registrar.
An applicant for legal aid must establish to the satisfaction of the court that his/her means are insufficient to enable him/her to pay for legal aid him/herself. This is purely a discretionary matter for each court and is not governed by any financial eligibility guidelines. The court must also be satisfied that by reason of the "gravity of the charge" or "exceptional circumstances" it is essential in the interests of justice that the applicant should have legal aid. However, where the charge is one of murder or where an appeal is one from the Court of Criminal Appeal to the Supreme Court, free legal aid is granted merely on the grounds of insufficient means.
An applicant for free legal aid may be required by the court to complete a statement of means. It is an offence for an applicant to knowingly make a false statement or conceal a material fact for the purpose of obtaining legal aid. Such an offence carries a penalty of a fine or imprisonment or both.
The Department of Justice, Equality and Law Reform has no involvement in the day to day running of the Scheme, the granting of free legal aid or assignment of lawyers. These matters are handled entirely by the courts.
Garda Station Legal Advice Scheme: The Garda Station Legal Advice Scheme provides that where: § a person is detained in a Garda station for the purpose of the investigation of an offence under the categories listed below, and
§ the person has a legal entitlement to consult with a solicitor, and
§ the person's means are insufficient to enable him/her to pay for such consultation that consultations with solicitors will be paid for by the State. The Scheme applies to persons detained under the provisions of: § Section 30 of the Offences against the State Act, 1939, as amended by the Offences against the State (Amendment) Act, 1998, or § Section 4 of the Criminal Justice Act, 1984, or § Section 2 of the Criminal Justice (Drug Trafficking) Act, 1996. Persons who are in receipt of social welfare payments or persons whose earnings are less than €20,316 p.a. are eligible to receive assistance under the Scheme.
As to civil legal aid, see the Civil Legal Aid Act, 1995, which establishes a Legal Aid Board and sets out the general criteria for legal aid or advice. It provides that a person shall not be granted legal aid or advice unless, in the opinion of the Board a reasonably prudent person, whose means were such that the cost of seeking such services at his or her own expense, while representing a financial obstacle to him or her would not be such as to impose undue hardship upon him or her, would be likely to seek such services in such circumstances at his or her own expense, and a solicitor or barrister acting reasonably would be likely to advise him or her to obtain such services at his or her own expense.
4. Measures taken as to Conditional Fee Agreements, legal costs insurance and fixed costs.
Some practitioners offer a practice known as “no foal no fee”. In Ireland, generally, costs follow the event, as is provided for in the Rules of the Superior Courts unless the Court for special cause shall declare otherwise. The payment of money into and out of court is known as the lodgement procedure. A defendant, pursuant to the Rules of the Superior Courts, may at any time after he has entered an appearance and before the action is set down for trial or at any time later by leave of court pay into court a sum of money in satisfaction of the plaintiff’s claim. However, the Rules of the Superior Courts provide for penalties as to costs as to the lodgement system in particular circumstances. Where a party incurs costs as a result of legal action they may have those costs taxed. The taxation of costs is the assessment and measurement of legal costs by an officer known as a Taxing Master (He is not a taxation or revenue official). A Taxing Master provides an independent and impartial process of assessment of legal costs which endeavours to achieve a balance between the costs involved and the services rendered.
B. REDUCTION OF EXCESSIVE WORKLOADS IN THE COURTS
1. Measures taken to relieved judges from non-judicial tasks and/ or measures taken to reduce excessive workloads
Judges have increased administrative and secretarial support provided by the Courts Service in 1999 and by the Courts Registrars. The quality of back-up and support to the judiciary has improved following the establishment of the Courts Service back in 1999. In recent years there has also been an increase in the number of the judiciary. In 1924, the maximum number of permanent judges in the different courts was 50, comprising three Supreme Court judge, 6 High Court judges, 8 Circuit Court judges and 33 District Court judges. By 1997, this had double to more than 112, comprising 8 Supreme Court judges, 25 High Court judges, 28 Circuit Court judges and 50 District Court judges. Judges have been provided with desktop and laptop computers and with electronic legal databases statute law and case law. Moreover, there are now judicial researchers who provide assistance to the Judges. These tend to be young students or recent graduates of high academic distinction.
2. Existence of bodies outside the judicial system to resolve small claims disputes
The Small Claims procedure is an alternative method of commencing and dealing with a civil proceeding in respect of a small claim and is provided for under the District Court (Small Claims Procedure) Rules, 1997 & 1999. It is not outside the judicial system, however. It is a service provided in a local District Court office and is designed to handle consumer claims cheaply without involving a solicitor. To be eligible to use the procedure, the "consumer" must have bought the goods or services (or the service) for private use from someone selling them in the course of business. The procedure is not available for use by one business person against another.
A District Court Clerk, called the Small Claims Registrar, processes small claims. Where possible, the registrar will negotiate a settlement without the need for a court hearing. If the matter cannot be settled the registrar will bring the claim before the District Court. It handles (a) a claim in respect of goods or services bought for private use from someone selling them in the course of a business (consumer claims) (b) a claim in respect of minor damage to property (but excluding personal injuries) (c) a claim in respect of the non-return of a rent deposit provided that a claim does not exceed €1,269.74. Excluded from the small claims procedure are claims arising from: (a) a hire-purchase agreement (b) a breach of a leasing agreement (c) debts. The Small Claims Registrar (or his/her staff) will provide help, information and guidance to ensure the claim is appropriate to the small claims procedure. If the Small Claims Registrar is unable to bring about a settlement he/she will bring the case to the District Court for a hearing, if requested to do so.
3. Existence of regular reviews of court workloads and measures taken to ensure a balanced distribution of the workload
No regular reviews are undertaken. The distribution of workload depends on the geographical arrangement of districts and circuits. The Courts Service is currently reviewing District Court Areas to ensure that they are organised in line with the distribution of population and court business.
The Courts Service Board has established the Working Group on the Jurisdiction of the Courts. This is considering the organisation of the Irish court system. This is the first thorough review of the system since it was established in 1924.
4. The roles of judges in the management of judicial infrastructures, human resources, information, technology equipment and training in management techniques
The Presidents of various courts are responsible for the assignment of judges and the allocation judges to particular areas of work. Because of the small numbers of the judiciary in each court, these assignments are generally made informally. The judges in each jurisdiction are equal, the president of each court being primus inter pares. The judicial infrastructure is essentially managed by the judiciary.
The Courts Service, established in November 1999, manages the courts in Ireland. It has responsibility for administration and planning. Each court jurisdiction is represented on the Board of the Courts Service and the sub-committees of the Board. The Board and its sub-committees are chaired by judges. In terms of information technology, there is a Judges' Intranet Project Board, which is largely composed of judges.
Training for the judiciary is provided by the Judicial Studies Institute. The Institute consists of a Board, which comprises the Presidents of each court and the Chief Justice and one judge from each court. The Board establishes sub-committees as required and these can include judges which are not on the Board. At present, much of the judicial education provided by the Judicial Studies Institute is carried out through weekend conferences. The Judicial Studies Institute also organises shorter seminars on very discrete topics. These are generally focused on legal topics.
The Institute is currently being evaluated and assisted by the University of Limerick Law Faculty and may expand the range of topics covered to include non-legal topics, such as management techniques.
C. QUALITY OF JUSTICE AND ITS ASSESSMENT; QUANTITATIVE STATISTICAL DATA-MONITORING PROCEDURES
1. System in country to assess the quality of judicial activity
There is no formal system to assess the quality of judicial activity. However, the system of appeals, the scrutiny of the press and the existence of a strong and independent Bar all combine to ensure that standards are maintained on the Bench.
2. The operation of quantitative statistical data collection concerning judicial activity as to institutional subjects, judicial activities, relevance of statistical data in professional evaluation of individual judges and relevance of statistical data in evaluation of performance of judicial offices and/ or chief judges
The Courts Service collects quantitative statistics on the number and types of cases heard in the courts. These are published in the Courts Service Annual Reports. No qualitative evaluation of judicial activity takes place (but see 1 above).
3. Monitoring procedures resulting in actions aimed at a better control of reasonable duration of proceedings or better allocation of resources.
There are no formal procedures for monitoring these matters. Each judge, in consultation with the President of the relevant court, will informally monitor the caseload in his or her court. The fact that the Irish judiciary is small in number enables informal resolution of any problems in this are. There are provisions to monitor delays in delivering judgments and to ensure that no inordinate delays occurs. A register of pending judgements is kept and is open to public inspection.
4. Role of judiciary where above task completed by other body.
D. ALTERNATIVE DISPUTE RESOLUTION
(a) In general
1. List of ADR schemes public and private, general and specialised
Ireland has separate legal regimes for international and domestic arbitration. Anything which falls outside the definition of 'international arbitration' in the Model Law, is to be regarded as domestic arbitration. Domestic Arbitration is governed by the Arbitration Acts of 1954, 1980 and 1998.Section 5 of Arbitration Act, 1980 provides that an arbitration agreement is enforceable in the Irish Courts. If court proceedings are issued in defiance of the arbitration agreement the Courts must on the application of one of the parties stay the proceedings.
Arbitration is the preferred method of dispute resolution in a number of sectors in Ireland, including the construction and insurance industries. More recently, arbitration is emerging as a preferred method of dispute resolution in "new economy" sectors such as the software industry. See www.dublinarbitration.com.
As to International commercial arbitration, see the Arbitration (International Commercial) Act 1998 giving effect to the Uncitral Model Law on International Commercial Arbitration and to make better provisions in respect of arbitrations, granting powers for the High Court to make orders in international commercial arbitration disputes and prescribing the conditions of international arbitration in Ireland. The enforcement of the Washington Convention and New York Convention Awards is governed by the Arbitration Act, 1980. See other examples of ADR such as that provided by the Office of the Equality Tribunal (ODEI) which provides for a mediation service in discrimination cases. Mediation is voluntary and private. See www.odei.ie “Developments in Alternative Dispute Resolution”.
Pursuant to the Rules of the Superior Courts (Commercial Proceedings), 2004 O. 63A, r. 6(1), a Judge may make an initial direction that the parties consider whether he should refer the process to mediation, conciliation or arbitration or may make an order directing the parties to provide particulars of any mediation, conciliation or arbitration arrangements that may be available to the parties.
As to Private ADR schemes in Ireland, these are provided in many sectors such as the advertising industry, the tourism industry, the travel industry, the electricity supply industry anf the banking industry. In addition, there are private organisations who provide arbitration and/or mediation services. Other industries have ombudspersons who deal with disputes in their sectors. Private ADR schemes are run by:
Advertising Standards Authority of Ireland (ASAI)
Type of Organisation: Independent self-regulatory body financed by the advertising industry
Type of Dispute: Advertising, Commercial advertisements in Irish media - print and sales promotions
Decisions: Binding. Advertisements may be amended or withdrawn and compensation paid to the consumer where necessary
Cost: No charge
Centre for Dispute Resolution
Type of Organisation: Non-profit limited company
Type of Dispute: General Consumer disputes covering any sector
Decisions: Decision mutually agreed. The parties may turn the decision into a legally binding contract
Cost: Fees are shared between parties on a 50/50 basis
Electricity Supply Board - Consumer Complaints Arbitrator
Type of Organisation: Independent Body
Type of Dispute: Electricity
Bill and payment queries, supply connection, network repairs, supply quality and continuity, communications and customer chartered guarantee disputes.
Decisions: Binding on the Electricity Supply Board but not on the consumer
Cost: No charge
Insurance Ombudsman of Ireland
Type of Organisation: Independent body. Appointed by and reporting to a Council comprising five non-insurance industry nominees and two industry nominees.
Type of Dispute: Insurance - Personal insurance policy complaints relating to home, car, medical and others
Cost: No charge
Ombudsman for Credit Institutions
Type of Organisation: Independent body. Appointed by an independent Council
Type of Dispute: Banks, building societies Unfair treatment, negligence, poor service, breach of contract, disputes arising from cross-border credit transfers.
Decisions: Binding on the Institution but not on the consumer
Scheme for Tour Operators, Chartered Institute of Arbitrators
Type of Organisation: Non-profit company with charitable status
Sector: Holiday complaints against tour operators
Type of Dispute: Breach of contract and personal injury relating to holidays
Decisions: Binding on both parties.
Cost: Breach of contract: €380.93 Personal injury: €634.87
Plus €127 per hour for hearing. The arbitrator can determine who will pay the costs
2. State supervision over ADR agencies
Acts of the Oireachtas are subject to modification by the Oireachtas. Government contributions under the Washington Convention and administrative expenses incurred by the Minister for Finance thereto are governed by the Arbitration Act, 1980. Otherwise, no State supervision of such ADR agencies exists to the best of the knowledge of the author.
3. Applicability of legal aid to ADR procedures
Costs, fees and expenses are governed by the relevant industry schemes. These schemes vary in respect of the costs of the arbitration.
4. Confidentiality protected during ADR
Usually, yes. The parties are free to draft an appropriate clause in an arbitration contract to secure a particular form of confidentiality.
5. Relevance of refusal to access ADR as to orders for costs
The parties to an arbitration contract are free to agree to the costs of a domestic or international arbitration. Where there is no agreement between the parties as to the recoverable costs of an arbitration, the arbitral tribunal may with the consent of the parties determine by award those costs on the basis it thinks fit. Where there is no agreement as to the recoverable fees and expenses of the arbitral tribunal the tribunal may award those fees and expenses as it thinks fit: See s. 11 of the Arbitration (International Commercial) Act 1998. Where a party does not consent to the arbitral tribunal making a determination, the party may make an application to the High Court which may determine the costs on the basis that it sees fit.
(b) In-Court ADR
1. Role of Judge in mediation
Generally speaking, judges have no function in mediation. As the name suggests Alternative Dispute Resolution is regarded by the Courts as being a different and alternative method of resolving conflict to the Courts system. There is nothing, however, to prevent a judge suggesting mediation in particular cases. This happens infrequently in the sphere of family law. Moreover, a judge will not infrequently express a view that an agreed solution to a case might be preferable to a court imposed one, and encourage such a solution by granting time for discussions.
2. Judicial Entitlement to appoint a mediator or conciliator? Training and responsibilities
Not applicable (see 1 above).
3. Legal relevance of in-court conciliation or mediation
Not applicable (see 1 above). However, the rules of the Commercial Court (see below) provide that the judge chairing the case management conference may direct the parties to provide information as to whether mediation, arbitration or conciliation would be appropriate in the circumstances.
(c) Out- of- Court ADR
1. Judicial Control of out-of-court ADR agreements
Courts powers exercisable in support of international commercial arbitration proceedings are set out in s.7 of the Arbitration (International Commercial) Act 1998. A court’s powers as to recoverable costs of arbitration and recoverable fees and expenses of the arbitral tribunal are set out in s.11 of the Arbitration (International Commercial) Act 1998. As to domestic arbitrations, section 5 of the Arbitration Act 1980 sets out the powers of the Court to stay proceedings in certain circumstances. The Courts have a role as to the enforcement of pecuniary obligations imposed by award (see s. 16 of the Act). The Court can stay enforcement of a pecuniary award also.
See the Rules of the Superior Court (Commercial Proceedings), 2004, where the procedures as to case management are set out.
(d) ADR in Administrative Law Disputes
1. Can a public entity participate in ADR procedures and settle the dispute?
(e) Criminal Law and ADR
1. Role and extent as to criminal investigations
ADR has no application in the Irish criminal law. However, there exists a Juvenile Liaison Scheme under which, in certain circumstances, a warning may be given in lieu of criminal proceedings being instituted.
E. CASE MANAGEMENT
1. Average duration of civil and criminal proceedings
The Court Service Annual Report 2002 sets out the waiting times for the Courts in Ireland and represent the most accurate and up to date statistics existing as to the duration of proceedings in Irish courts. In the Supreme Court, the average waiting time for an appeal to be listed was less than 3 months. The High Court in criminal matters had a waiting time for the hearing of sentence appeals of approx. 9- 12 months. The waiting time for conviction cases was 15 months. To fix a date for nonjury matters in the High Court, in the list to fix dates in December 2002, dates were allocated to 70% of cases between January and March 2003. As to judicial review cases (excluding asylum) in the same period, 66% of cases had dates allocated from January to March 2003. The wait times for family law cases were 3 months where the Master of the High Court deemed the case ready for hearing. As to personal injuries, a date generally was assigned within 3 weeks of the application being made in Dublin. Outside of Dublin, the only significant delay was in Cork where cases could take 2 years to be reached. Otherwise, cases ready to proceed would be heard within 3-6 months of setting down. In the Central Criminal Court, the wait from the return for trial to the date of the first court hearing was generally 18 months. In the Special Criminal Court, the waiting time for a hearing was approximately 10 months. In the Circuit Court, the fixing of dates in the Dublin Circuit Court for civil cases is the next available date by the court office. In criminal cases, the cases are returned to the present or next sitting of the Dublin Circuit Criminal Court. In the Dublin District Court in civil cases, the applicant is given a return date to allow time for matters such as service of the civil process. In summary judgement cases, dates are assigned by the court office. In family law cases, emergency applications are dealt with immediately. All other applications are assigned the next available date..
2. Judges powers to control the parties activities as to oral and written procedures and summary judgment or control of calendar
As to fixing dates for hearing in the High Court, the court operates a case management list which provides a useful forum for applications for priority.
See Rules of the Superior Courts (Commercial Proceedings), 2004 which prescribes powers for a judge to direct that proceedings before the Commercial Court be subject to case management. A Judge may, at any time and from time to time, of his own motion and having heard the parties, give such directions and make such orders, including the fixing of time limits, for the conduct of proceedings entered in the Commercial List, as appears convenient for the determination of the proceedings in a manner which is just, expeditious and likely to minimise the costs of those proceedings. The judge chairing a case management conference may inter alia make any orders or directions as prescribed and fix a timetable or require parties to explain delay and may disallow costs in particular circumstances. Pre-trial conferences shall be chaired and regulated by Judge under this procedure
The State's first Commercial Court, aimed at offering a specialised approach to the disposal of commercial litigation in line with jurisdictions in leading economies elsewhere, started hearing cases on 12 January 2004. The Court - which will in fact be the Commercial List of the High Court - is being set up to enable commercial litigation to be tried by judges having particular experience and expertise in commercial law , and to provide a case management regime for appropriate cases. The Court is located at Bowe Street, in a technology-enabled courtroom which will facilitate digital recording of proceedings, the presentation of evidence electronically and where required, the hearing of evidence remotely by video conferencing. In general, the Court has wide powers to prevent inordinate delay and to penalise and prevent abuse of process. Most cases are dealt with by way of oral hearing, but the court is entitled to ask for written submissions. It is normal; for a court to be told the likely duration of a case but no sanction is likely to be incurred in the event of it lasting longer, other than perhaps an order limiting costs of a specified period.
3. Measures taken so cases are adjudicated by single judges and not panel
Matters coming before all courts other than the Supreme Court, the Court of Criminal Appeal and the Speciial Criminal Court are normally heard and determined by one judge but the President of the High Court may direct that any cause or matter or any part thereof may be heard by two or more judges.
(b) civil disputes
1. Implementation Rec. R (84) 5 as to principles of civil procedure
The Courts Service has just finalised a five-year strategic plan for the implementation of a major Information Technology programme across the courts system. This major computerisation programme plan, as well as computerising many of the processes and procedures presently undertaken manually, also lays the foundation for court users to conduct business with the Courts Service electronically in the future.
The proposed strategy will deliver the following outputs;
1) A set of key business applications to meet the specific business needs of the Courts Service and the judiciary while at the same time incorporating the business needs of court users in the context of their interaction with the Service. Specific business applications include:
Criminal Case Management System
The enhancement of the Criminal Case Management System (recently implemented in Dublin and Limerick District courts) to include the Circuit and Central Criminal courts together with the Special Criminal Court and the Court of Criminal Appeal. Additional enhancements will include the facility to list cases electronically and integration with the Garda Siochana, Prison Service, Chief State Solicitors Office and other elements of the Criminal Justice System. The system is designed to track individuals and cases from initiation to final outcome.
Civil Case Management System.
A new integrated business application to manage, monitor, control and track civil business, including family law cases across all court jurisdictions. This application will replace both currently manual systems and a number of legacy systems currently operational within the Service. The system will include eEnabled functionality and for the first time will provide facilities for eFiling and eSubmission of documents in relation to court Business. The system will, in addition, provide for the production of accurate and timely records of court proceedings and reduce the administrative effort associated with researching court outcomes.
2) The strategy will deliver a range of eGovernment services which are consistent with the Courts Service's commitment to participate fully in the Government initiative for the delivery of electronic services. The proposed electronic services will be provided across, from a court user perspective, two dimensions, Business to Consumer (B 2 C ) ( Courts Service to Citizen and legal practitioner) and Business to Business (B 2 B ) ( Inter Agency electronic services).
Business to Consumer
Examples of B 2 C initiatives include eFiling, the capability for legal practitioners to file documents electronically with the Courts Service, eSubmission, the capability of parties to a case to send submissions to the court electronically and ePayment, the capability to complete financial transactions with the Courts Service electronically.
Business to Business. Examples of B 2 B initiatives include, the capability to provide data interchange between court and Garda systems in relation to case initiation, case outcomes and warrants, the capability to exchange data with Prison systems in relation to persons committed to prison and the capability to transmit and receive case data electronically with the Chief State Solicitors Office.
3) The introduction of modern accounting systems and particularly initiatives in relation to ePayment provide the potential for improvement in the collection of monies due to the Service in the areas of fines and court fees. In addition a modern funds accounting system is being procured which will enable the Service to manage funds lodged with the courts to the benefit of court users.
4) Modern management and executive information systems are proposed. Such systems will enable the Courts Service to respond rapidly to changing business and operational needs and provide for the planning of current and future business developments. In addition, these systems will be the basis for future research into the criminal justice system and will be of interest to scholars and academics alike.
The plan illustrates that the Courts Service, during its short time in existence has come a long way on the road to full initiation into the world of information technology.
· Already, all the court offices in Dublin and the 70 offices outside Dublin are cabled to facilitate the installation of local area networks.
· Work has already commenced on the installation of the Local Area Networks and the Wide Area Network in Dublin with a completion date set for mid-March. This will be followed by work in the offices outside Dublin, which is due for completion in early 2002.
· The first phase of the implementation of the Criminal Case Management System has been implemented in Dublin and Limerick District courts. This system is to be extended to all other district court offices outside of Dublin during the coming months.
· Tenders have been sought for a major courts accounting / funds accounting system.
· Tenders have also been sought for a Financial Management System
· The Courts Service website http://www.courts.ie has been established and includes publication on a daily basis of the Legal Diary and additional information on the courts system and the Courts Service. Development of the second phase of the website has commenced which will include the publication of judgements, educational and heritage sections.
The strategies outlined in the plan are in keeping with the Courts Service's commitment to provide professional and high quality services to all court users. The plan, which will cost over £50 million and will take five years to complete, has been approved by the board of the Courts Service and has been submitted for approval and funding to the Minister for Justice, Equality and Law Reform.
2. Procedures that are accelerated, simplified and/ or summary in civil disputes.
See Commercial Court rules, empowering Judge chairing the case management to fix a timetable, discussed infra. See also provisions in Commercial Court rules for electronic service, exchange and lodgement of documents. Summary judgements and ex-tempore decisions also constitute accelerated means of disposing of disputes.
3. As to simplified procedures, indicate those existing:
3(i)E-filing constitutes a simplified means of commencing litigation (See Commercial Court rules). Dispensing with lists to fix dates in Supreme Court, reducing waiting times. In 2002, new information technology systems were introduced in court offices. Case management in Commercial Court cases as stated above provides for an active role for the judge chairing the case to ensure expeditious litigation and to minimise costs. The Commercial Court rules proscribe powers for a judge to make various orders in this regard also.
3(ii) Many courts have only one hearing. This question is not fully understood.
3(iii) Many proceedings are exclusively oral. This is normal. No proceedings are decided without oral argument.
3(iv) Again, this question is not fully understood. Certain defences to actions can be precluded by legislation.
3(v) No formal rules exist for more flexible rules of evidence. The desirability of such is debateable. Great flexibility can be adopted, however, with the consent of the parties.
3(vi) A judge may refuse an adjournment or grant only a short adjournment in any case.
3(vii) With rare exceptions because of the adversarial system, the court does not appoint experts.
3 (viii)The court does not generally call evidence- this is a matter for the parties because of the adversarial system.
3(ix) The judge may and very frequently does deliver an oral judgement depending on the complexity of the issues involved. “Mere” oral judgements are delivered in all courts including the Supreme Court.
4.1. As to summary proceedings, indicate powers to decide summarily on disputes listed.
Procedure by summary summons in Ireland is intended for use in cases which are capable of summary disposition without pleadings and upon affidavit without the necessity for oral evidence. There are four general categories of case where it may be used: actions where the plaintiff seeks to recover a debt or liquidated demand in money; ejectment actions against a tenant whose term has expired or been duly determined by a notice to quit; claims in which the plaintiff in the first instance desires to have an account taken and where all the parties consent. Judgment cannot be entered in the normal way in proceedings by moneylenders and proceedings on foot of a hire-purchase agreement. In either case, judgment cannot be entered in the Central Office without the leave of the Master or the court first having been obtained.
4.2. A summary judgement has force of res judicata?
4.3. A summary judgement is liable to determine rights and obligations of parties even if procedure on merits not initiated?
5. Availability of injunctive relief in system
Injunctions will be granted to protect a right whether arising at common law, an equitable right (for example, the right of a beneficiary under a trust, a constitutional right, or a right deriving from a statutory power. An injunction, like other equitable remedies, is discretionary in nature and an essential test is whether a plaintiff should be confined in their remedy to damages. The conduct of the parties is also relevant. A perpetual or interlocutory injunction may be granted. An injunction may be granted to restrain a breach of contract or to restrain the commission or continuance of a tort or to restrain a breach of constitutional rights. Injunctions may be granted to prevent a defendant from disposing of his assets from the jurisdiction. The powers of the courts to grant injunctive relief are extensive.
6. Time-limits and interlocutory judgements to assure reasonable duration of ordinary proceedings
In plenary proceedings, the statement of claim is not required to be delivered unless the defendant when entering his appearance or within 8 days thereafter gives notice in writing to the plaintiff. The plaintiff may deliver the statement of claim with the plenary summons or notice in lieu thereof. Otherwise it must be delivered within 21 days. The plaintiff may alter modify or extend his claim without any amendment of the indorsement on the summons. If a defendant enters an appearance to a plenary summons, then he is required to deliver his defence and counterclaim within 28 days from the entry of appearance, or in any other case within 28 days from the delivery of the statement of claim or from the time limited for appearance whichever is later. The Rules of the Superior Courts also provide for various time limits in particular proceedings, for example, in judicial review, of importance to ensure the reasonable duration of proceedings.
The High Court pursuant to the Rules of the Superior Courts is empowered to grant the equivalent of an interlocutory injunction where certiorari or prohibition is sought after a purely ex tempore hearing.
7. Protective measures available e.g. freezing a situation of fact & 8. Measures to enhance possibility for plaintiff to gather information? E.g. Anton Pillar order
The Court have very wide powers to freeze assets. Mareva type injunctions and the appointment of receivers over property and assets, to protect property to order entry of premises and seizure of goods therein. These powers are exercised by the courts in civil cases (generally of a commercial nature). There are similar powers in the criminal law and under the Criminal Assets Bureau legislation (which despite its name is civil legislation). Anton pillar orders are part of Irish jurisprudence. The type of cases where these types of order are ordered without hearing the other side are typically cases where the court is persuaded that there is a real danger of the destruction of evidence or the removal of the goods or assets from the jurisdiction so as to defeat the purpose of the proceedings.
9. When is a first degree judgement provisionally enforceable?
A judge may at or after a trial direct that judgment be entered for any or either party or adjourn the case for further consideration before him. Every judgement or order pronounced or made when filed in the Central Office is deemed to have been duly entered (a copy of every judgement and order of the Supreme Court must also be filed in the Office of the Registrar of the Supreme Court). The judgement will be dated as of the day pronounced unless the court directs otherwise. A part may apply for a stay on the judgement pending appeal and a stay may be granted on terms. In many cases the lodging of an appeal automatically acts as a stay on the order.
10. Implementation of Rec. R. (95) 5 as to introduction and improvement of functioning of appeal systems and procedures in civil and commercial cases. When is a decision not subject to an appeal? Is an appeal permitted only upon leave?
In general, there is a right of appeal against any decision of a court to a court of higher jurisdiction, i.e. From the District Court to the Circuit Court, from the Circuit Court to the High Court, from the High Court to the Supreme Court or to the Court of Criminal peal. However, the constitutional right of appeal from the High Court to the Supreme Court can be limited by law.
Examples include s. 52(2) of the Courts (Supplemental Provisions) Act 1961, s. 108(7) of the Patents Act 1992, s. 55A(4) of the Roads Act 1993, s. 43(5)(c) of the Waste Management Act 1996, s. 79(3) of the Trade Marks Act 1996, s.12(4) of the Transport (Dublin Light Rail) Act 1996, s. 13(6) of the Irish Takeover Panel Act 1997 and s. 73(3) of the Fisheries (Amendment) Act 1997, section 50(4)(f)(i) of the Planning and Development Act, 2000 (replicating section 82(3B)(b) of the Local Government (Planning and Development) Act, 1963 as amended) and section 5(3)(a) of the Illegal Immigrants (Trafficking) Act, 2000. A typical formula used is in that last mentioned provision:
“The determination of the High Court of an application for leave to apply for judicial review, or of an application for judicial review, shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case, except with the leave of the High Court, which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.”
I personally would not favour widespread restriction on the right to appeal. I do not believe that it is widely abused.
11. Measures to improve enforcement of court judgements and effectiveness of activity of enforcement agents, transparency of information and recognition of judicial decisions from another Member State of the Council of Europe.
(1) Enforcement of court judgments-I have been unable to collect hard evidence on this but I understand that it is relatively satisfactory although enforcement of sale of a family home may present difficulties.
(2) There are procedures whereby a debtor may be brought to court to be cross-examined as to his means and assets. It can be an effective tool for gathering information.
(3) See the implementation of the Brussels Convention on Jurisdiction of Courts and Enforcement of Judgments in Civil and Commercial Matters and subsequent conventions given the force of law in Ireland by the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act 1988. The Lugano Convention was ratified by in the State by the Jurisdiction of Courts and Enforcement of Judgments Acts 1993. The provisions of Irish law relating to jurisdiction of courts and enforcements of judgments under these conventions were consolidated by the Jurisdiction of Courts and Enforcements of Judgments Act 1998. See also Council Regulation EC No. 44/2001 on the jurisdiction, enforcement and recognition of judgements (Brussels I). More education in this topic would be welcome.
(c) criminal matters
1. Implementation of Rec. R (87) 18 as to simplification of criminal justice and R. (95) 12 on the management of criminal justice.
There have been in recent years attempts to reform the criminal law by the repeal of Victorian legislation and by granting to the prosecution wider discretion subject to judicial acceptance, to choose the level of court in which a particular offence be tried. There have also been attempts to tighten and simplify the law in relation to drink-driving offences. It remains to be seen how successful these provisions have been.
Simplification of criminal justice: A new publication will throw light on legal terminology, which is used through out the legal, and justice system in Ireland. Titled ‘A Plain English Guide to Legal Terms’ this publication is launched as part to of a national campaign to make the language of the Irish legal system more accessible. This campaign is organised by the National Adult Literacy Agency (NALA) who will launch the publication with the support of the Law Society of Ireland.
Management of the Criminal Justice System: The computerised criminal case tracking system
The District Court deals with 95% of all criminal cases and the introduction of a new computer system which streamlines the input and production of information to benefit both staff and customers is an important development in our ongoing modernisation process. Its introduction in Dublin and Limerick has had a major impact to date and now the system is all set for roll out to the entire country. The Criminal Case Tracking System (CCTS) was introduced in late 1999 as a replacement for a previous system. This was the first major endeavour by the Courts Service IT Division and provided a steep learning curve for all. Valuable lessons were learned and the resulting system fulfils the original requirements. Having been tested in the demanding environments of Dublin and Limerick it is ready to rollout to all District Courts. CCTS can track the full life cycle of a criminal case in the District Court. Users can create and result cases, appeals, judicial reviews and set asides; record bail and legal aid details; receipt fines; print warrants, summonses, legal aid certificates and a whole array of other documents and reports. Searching is possible on just about every aspect of a case created and all information is stored centrally allowing viewing of cases listed nationwide. Security features ensure that access to modify data is limited and a suite of statistical queries removes the need to manually collate statistics. During the roll out process full training will be provided to all users to allow them extract all the benefits that the system can provide.
CCTS provides for the centralised collection of data, providing the Courts Service with the best technical solution to fulfil its present requirements while ensuring that future requirements can be met. These enhancements allow for the electronic transmission of information to and from An Garda Síochána and the Department of the Environment & Local Government. Initially, this will facilitate the electronic receipt of penalty points offence summonses and the transmission of penalty point notifications to the Department.
In the longer term it is envisaged that CCTS will facilitate the electronic receipt of all Garda prosecutions directly and also from other prosecutors. The role the Office & Warrant system (O&W) has played in the successful operation of District Courts throughout the country cannot be overstated. However, it is limited in its present form and this restricts its long-term viability. Each office has a separate O&W database for local use only. No other office can access the database. This means that where cases are transferred from office to office, the case details have to be re-entered into the O&W system in each office. With CCTS information is centrally stored so offices will be able to access information therefore removing the need to re-enter case details. Such an approach will be unworkable as we progress towards greater use of electronic transfer of data. While use of the O&W system will be retained for a variety of civil and licensing applications, all criminal cases will move to CCTS once it is rolled out to each District Court office.
The number of Central Criminal Courts was increased to 4 in 2002. It has traditionally sat in Dublin. However, in 2003 and 2004 it held sittings in Limerick.
2. Specify characteristics of procedures that may qualify as accelerated, simplified or summary.
Criminal cases are divided into two types – summary offences and indictable offences. Summary offences are less serious cases; are heard by a judge without a jury in the District Court, the lowest court in Ireland; the maximum prison sentence that an accused can get for one offence is never more than 12 months. Indictable offences are more serious cases; are heard by a judge and jury in the Circuit Court or the Central Criminal Court; carry more serious penalties if the court convicts the accused – this can go up to life imprisonment for some crimes. The summary trial of offences in the District Court is characterised by speed and informality, compared with trial on indictment. As to other forms of simplification, a case management list operates for fixing dates for hearing in the Court of Criminal Appeal. Video conferencing link evidence for prisoners is currently under consideration by the Irish Courts Service. Currently in any case involving a sexual offence or an offence involving violence evidence may be given through a live television link by a person under 17 years of age: see the Criminal Evidence Act 1992
(i) if discretionary decision to waive or discontinue proceedings are possible, although adequate evidence of guilt has been found.
The decision whether or not to prosecute on indictment is a matter for the Director of Public Prosecutions, subject to one or two defined exceptions where the power is vested in the Attorney General. For the non-exhaustive list of factors relevant to a decision to prosecute, see Statement of General Guidelines for Prosecutors (DPP, Dublin, 2001). Thus even where the DPP is satisfied that there is a prima facie case against a suspect and the evidence is credible and reliable, the circumstances of a case may be such that there will be no decision to prosecute. See also Eviston v. DPP  3 I.R. 260.
(ii) mass offences such as road traffic, tax and customs law if minor are decriminalised
(iii) if out-of-court settlements are possible
(iv) penal orders are employed such as those in Rec. No. R (87) 18
(v) the procedure for a “guilty plea”
An accused charged with an indictable offence may also have the option of pleading guilty in the District Court but this does not apply to treason, murder, attempted murder, piracy or genocide. The court may then proceed to deal with the case summarily providing that the DPP does not object and the court is satisfied that the accused understands the nature of the offence and the facts charged. See s. 13(1) of the Criminal Procedure Act 1967. Alternatively, the District Court may send the accused forward on the plea of guilty to the appropriate higher court for sentence in certain circumstances. It is open to the accused to withdraw his guilty plea after having been sent forward. The court must enter a plea of not guilty and the case will proceed as if the accused had been sent forward for trial. See Part IA of the Criminal Procedures Act 1967 as amended by the Criminal Justice Act 1999. If the accused admits the truth of the complaint in the trial of a summary offence, the court may convict unless it sees sufficient reason to the contrary. The accused will be asked whether he wishes to make a plea of mitigation in sentence.
(vi) declarations of voidness of proceedings are limited to cases in which failure to comply with procedural requirements have caused real damage to the interest of the defence or prosecution?
No. The consultative case stated from the District Court to the High Court pursuant to the Courts (Supplemental Provisions) Act 1961 is not so limited nor is an appeal to the Court of Criminal Appeal or Supreme Court so limited. Furthermore, decisions of the District Court and Circuit Court are subject to judicial review by the High Court for breach of rights to natural and constitutional justice, or for acting in excess of or without jurisdiction. Trials may also be prohibited for excessive pre prosecution delay in certain circumstances as well as for excessive prosecutorial delay in contravention to the right to a trial with reasonable expedition.
(vii) notification of summons and decisions of the court is done through simple rapid procedures including by mail?
The District Court Rules provide that a summons may be served anywhere in the State and a copy must be served on each person to whom it is directed or in an appropriate and defined location. In cases of summary jurisdiction, the summons can be served by registered post. Where service is by hand, the summons must be served at least 7 days before the date fixed for the hearing. In case of service by registered post, the period is 21 days. There are grounds to amend a defective summons in particular circumstances. Where a person fails to appear, a warrant may be issued for their arrest.
(viii) measures existing as to simplified forms of written decision or where trial court is exempt from issuing the decision in writing?
There is no specific statutory provision imposing an obligation to record the proceedings in a trial on indictment. The Court of Justice Act 1924 stipulate that any appeal to the Court of Criminal Appeal has to be heard on the basis of the transcript of the evidence. In practice, however, it has always been considered necessary to have a stenograpgher present in court. An official transcript of the trial is provided. When adopted by the judge it forms a part of the record for the appeal court. An appeal is thus heard on a record of the proceedings and on a transcript thereof. A record is any shorthand notes, or a disc or tape or soundtrack or other device. In the case of minor offences there is no necessity that the proceedings be recorded- the appeal in such cases is by way of a complete re-hearing. In criminal cases, the jury returns its verdict orally and the judge pronounces the verdict orally. The position is similar in cases without a jury.
4. Role of the bench in the several stages of investigation. Role as to guilty pleas and sentencing, in court or out of court. Role of judge and jury as to finding of guilt and determination of penalties.
Ireland adopts the adversarial model of justice and thus the bench is not involved in any stages of a criminal investigation. The DPP decides whether to charge people with criminal offences, and what the charges should be. Crimes are investigated by the Garda Síochána. See www.dppireland.ie. When they finish investigating a serious crime they send a file to the DPP who decides what charges to bring. While all criminal prosecutions are taken in the name of the DPP most of the less serious crimes can be prosecuted by the Gardaí without sending a file to the DPP. When this happens the DPP has the right to give the Gardaí instructions about how to deal with the case.
The DPP prosecutes in all the most serious cases and sometimes in less serious cases. The most serious cases are heard before a jury in the Circuit or Central Criminal Court or in the Special Criminal Court where there is no jury but rather a three person court (but note that the Special Criminal Court has limited jurisdiction). The DPP is independent when carrying out his job. This means that the Government or the Gardaí cannot make the DPP prosecute any particular case nor can they stop him doing so. It is the Judge who decides what sentence should be given when a person is convicted in court. The judge, of course, hears both the prosecution and the defence before making a decision. Under the Constitution of Ireland all judges are independent. Judges also make decisions in relation to: the listing of court cases; the fixing of trial dates; and whether to adjourn cases. In a criminal trial, jurors are charged with the responsibility of deciding whether, on the facts of the case, a person is guilty or not guilty of the offence for which he or she has been charged. The jury must reach its verdict by considering only the evidence introduced in court and the directions of the judge. The jury does not interpret the law. It follows the directions of the judge as regards legal matters.
It is not necessary that a jury be unanimous in its verdict. In a criminal case, a verdict need not be unanimous where there are not fewer than 11 jurors if 10 of them agree on a verdict after considering the case for a reasonable time (not less than two hours). When the jury has reached its decision, it will return to the court and the verdict will be read out by the foreman. The jury has no role as to sentencing.