Why Ireland’s legal community is pushing back over civil justice overhaul

Minister for Justice Jim O’Callaghan hailed the reforms unveiled in the General Scheme of the Civil Reform Bill (55-page / 445KP PDF) as resulting in “greater transparency and a more streamlined process”, as the Irish government looks to make access to justice quicker, more efficient and more cost-effective.

The proposals come in the wake of 2020’s Kelly Report, which made more than 90 recommendations for wide-ranging reforms of the justice system, calling for “wholesale cultural change”.

However, not everyone in the industry agrees with O’Callaghan, with both the Law Society of Ireland and the Bar of Ireland (61-page / 6.62MB PDF) expressing caution about the proposals.

The latter has warned that the proposals diverge significantly from the 2020 report’s findings and could risk actually increasing costs and delays for those seeking easier access to justice.

Production of documents

One of the big changes to process will be in the production of documents. Currently, discovery is typically triggered in the latter stages of proceedings. However, the Kelly Report criticised this approach, citing it as a major contributor to the cost of and delays in civil litigation in Ireland, producing an unbalanced system which allowed economically stronger parties to weaponise discovery against the less well-off.

The new rules would see existing procedures around discovery, inspection and production abolished, with the introduction instead of a front-loaded, mandatory production regime which would require claimants to provide documents which would be relied upon in a case within 28 days of service, and respondents within 42 days.

To streamline processes, documents for production would be those parties intend to rely on at trial or which are “relevant and material” to the outcome of the proceedings, including those other parties would likely rely on. There would be a duty to continue to provide additional material required up to a minimum of 28 days before the trial, with the theory behind this regime being to put focus on pertinent matters of the case, rather than tangential evidence or ‘fishing’ exercises.

However, the Law Society of Ireland has flagged up concerns that this would result in disproportionately high costs at the start of proceedings, with a notable knock-on effect to lower value cases, as the cost of evidence gathering is moved to the start of a case.

Parties involved would need to invest heavily in document review as soon as a claim is initiated to meet the new deadlines, with a risk that cases that might have settled early and avoided the discovery process could now incur substantial costs for collecting and reviewing documents that ultimately never get used.

The Bar of Ireland agrees with that concern, warning that enshrining the new process in primary legislation removes any flexibility in the production process and puts a substantial burden on the front end of cases which may deter individual litigants, SMEs or those using legal aid from continuing.

“The proposed obligation to produce all documents intended to be relied upon at trial, documents the opposing party would be reasonably likely to rely upon and documents necessary for the administration of justice is vague and has the potential to introduce cumbersome, time consuming, and ultimately costly requirements regarding the production of documents,” it warned in its response to the proposals.

Statutory judicial review

One of the major changes proposed in the General Scheme of the Civil Reform Bill would be to put judicial review on a statutory footing for the first time, tightening the rules around who can bring challenges, how quickly they must act and what reliefs they can obtain.

According to O’Callaghan, this is to ensure the system is not being “misused on purely technical grounds”.

Under the General Scheme, the courts will only grant judicial review remedies if cumulative conditions are satisfied, specifically:

• the respondent has acted unlawfully;
• the applicant has suffered harm or prejudice;
• any error of law or procedural error was material to the decision;
• the interests of justice, taking into account the interests of the applicant and the public interest, require such remedy to be granted; and
• the granting of the remedy provides a significant benefit to the applicant.

In addition, costs would only be awarded if the decision provides a significant benefit to the applicant, with a further proposal to reduce the length of time within which an applicant must bring judicial review to eight weeks.

Notably, the threshold for standing would be significantly raised, with a new public interest test where the applicant would need to show that not only have they suffered personal harm, but that review would be in the interest of the public.

Applicants would require to show significant benefit in standing and in obtaining costs, with no consideration for costs of a benefit to the public interest. This latter part has attracted the concerns of the Law Society of Ireland which objected to the new criteria, arguing that the restrictions on costs for even a successful applicant would impact their right of access to the court process.

Similarly, the Bar of Ireland warned that the new approach represented a radical curtailment of judicial review, adding it “prioritises administrative efficiency over ensuring access to justice”, with many judicial review cases taken on a “no win, no fee” basis.

“The ability of an individual to challenge unlawful decisions made by the State is fundamental to the rule of law and to a functioning democracy,” it responded to the proposals. “’No win, no fee’ representation relieves a burden on the State, which would not be otherwise possible to achieve in the absence of well-funded, effective legal aid for judicial review.

“Therefore, applicants’ representatives are incentivised to only take strong cases with a reasonable prospect of success.”

Both the Law Society and the Bar of Ireland also raised serious concerns about plans for the Circuit Court jurisdiction to be expanded to include judicial review hearings in certain areas – including immigration, asylum and citizenship cases. The court, they claimed, is not resourced well enough to be able to support these kinds of cases.

Monetary limits

The Circuit Court would also, under the draft bill, see its jurisdiction in civil matters – including personal injury cases – raised to €100,000, with the District Court similarly raised up to €20,000, realigning both in response to inflation since the last change in 2013 and meaning more cases would be heard in lower courts, reducing legal costs.

While the Bar of Ireland said it was not against the move, provided it was done proportionately, the Law Society of Ireland came out strongly against it – arguing that by raising the jurisdictional limit, it risked flooding both lesser courts with higher value and more complex litigation and risk creating a bottleneck for hearings if greater resources were not made available.

Case management

New measures designed to improve case management have also been included within the proposed reforms, which have proved contentious.

Among them is a new presumption against granting adjournments, meaning an agreement between parties in litigation would not in itself be enough for an order to be granted. Indeed, penalties could be imposed on parties where conduct principles are not adhered to, through a more interventionist approach by the judiciary to cut down on delays which may have been previously seen as frivolous.

As part of this, the new principles will include:

• that the matters of law and fact arising in the proceedings which are at issue between the parties should, at as early a stage and to the extent as is practicable, be identified, defined, narrowed (where possible) and prioritised or sequenced,
• that proceedings should be conducted in a manner which is just, expeditious and likely to minimise the costs of those proceedings, and
• that the parties should use alternative dispute resolution procedures, where appropriate, to settle the whole or part of the proceedings where practicable and should be facilitated in doing so.

Both the Law Society and the Bar of Ireland said they were unhappy with this mandated approach, which the Bar of Ireland warned risked becoming “unnecessary statutory overreach”.

What next?

O’Callaghan made clear when launching the General Scheme of the Civil Reform Bill in January that urgent reform was needed – particularly around judicial review, where he told the Irish parliament: “The state faces significant challenges in terms of housing shortages, energy deficits, inadequate water supplies and climate changes, all of which are exacerbated by the demands of a rising population. We can no longer delay on reform of the judicial review system.”

The draft bill now faces a lengthy journey through the legislative process, and it will be closely watched to see how much change or challenge can be enacted upon it before entering into law.

Co-written by Catriona Shanley of Pinsent Masons.