4. Modernising Irish Courts: key opportunities and challenges in Ireland
Justice systems around the world are increasingly adopting innovative trends that have permeated the public sector in the last decade and been accelerated by the COVID-19 pandemic. Key modernisation approaches have included the incorporation of digital tools, data-based approaches, simplification of procedures, further integration among public services and specialised case management for different case-types. These tools have the potential to increase efficiency and cost-effectiveness of the justice system, cutting trial length and optimising judicial staff time.
While a workload study is not designed to assess process and operational efficiencies, the results indicate where some gaps exist. This ranges from case processes that could be enhanced in terms of efficiency; potential for improved case management approaches that may better meet the needs of different case types; need for improved data collection, other information and resources to design and test more efficient case management techniques and inform other change options; scope to develop time standards and other court performance measures; and room to implement more effective IT solutions. These considerations are shared across all court levels, but manifest themselves differently in each. Challenges and changes at one court level also impact the others, which is why a strategic approach to making adjustments that reflects the common and particular needs of all court levels is needed. To fully understand the need for streamlining operations, Ireland could benefit from conducting a detailed process and organisational assessment, as recently suggested by the President of the High Court as part of her submission to the Judicial Resources Working Group.1 Such an assessment would map in detail the flow of different case types at a particular court level and in different locations. It could include each processing step, action and decision from first registration through to final decision at every stage of a case and by all those involved, including litigants and their lawyers (SEARCH and NCSC, 2002[1]). The assessment could also map all processes as provided by the law to identify if and where implemented processes divert or do not take full advantage of legally provided options, and provide information on necessary legislative or court rule changes to develop appropriate solutions that can be implemented in the short term or over time.
In this context, this Chapter outlines key opportunities and challenges for modernisation across each participating court level in Ireland. It draws on global good practice principles, comparative experiences and Irish stakeholders’ suggestions to highlight potential efficiency gains that may be suitable in Ireland. The issues selected were identified based on the most relevant factors that seem to be contributing to the current levels of workload at each court level. Addressing such issues through innovative strategies may have a high impact on achieving efficiencies and hence reduce the number of needed judges to deal with the total workload.
The Court of Appeal is a relatively new court (created in 2014) that has only recently begun absorbing its full functions and number of judges. The first eight years of operation have provided valuable lessons that can help it streamline procedures and optimise its potential. Building upon the combined qualitative and quantitative information collected, the following sections include specific recommendations for the Court of Appeal that aim to reflect comparative international experiences and examples, where appropriate.
4.1.1. Tools to make judgement writing more efficient
The time study results and Delphi estimates illustrate that judgement drafting is the most time-consuming process step for judges at the Court of Appeal. While judgement drafting tends to require a significant proportion of a judge’s time at any court level where written judgements are issued, the time needed to develop the judgement increases in higher level courts where the decision sets precedent, and especially at the appellate level where errors by subordinate courts may need correction and where law is developed. The fact that modern technology today provides for the online publication of appellate decisions on court websites and elsewhere is a development that increases access to legal resources for all and potentially leads to greater consistency in judicial decisions, increased public understanding of judicial decisions and less unsubstantiated appeals. It also implies greater scrutiny as these decisions are currently read by many more people.
Proportionally, judgement writing requires the most of a Court of Appeal judge’s time, not only in Ireland (Robin, 2020[2]). The usual case management and streamlining approaches tend to make little difference in judicial time needed for judgement writing. Targeted efforts to reduce the time needed to develop well-supported and reasoned judgements would therefore be required to reduce the time needed.
A specific current challenge for the Court of Appeal that adds to judgement writing time is that a significant number of judgements are backlogged. The current time between hearing a case and actual judgement writing can be months or a year later. This means that judges often need to refamiliarise themselves with court papers and their notes prior to writing. This repetitious work could be reduced if writing time for judgements could be scheduled soon after the appeal hearing, while things are fresh in the judge’s mind. The court is currently experimenting with different scheduling options to set aside time for judgement writing throughout the year, rather than leaving this essential task mainly to non-sitting court holidays. Currently, no hearings are scheduled on Wednesdays, for example, to allow judges to draft judgements. This approach may also be considered by other court levels to ensure enough time is allocated for this task.
Judges reported that these efforts have helped address some of the judgement writing backlog, although a solution is still required for the cases that require several weeks of judgement writing. This challenge will particularly come to the forefront in 2022, when the Court of Appeal applies judgement delivery times. Part of this process still requires an implementation plan, so judges will be accountable through a complaints process being set up by the Judicial Council.
Although setting aside sufficient time for judgement writing shortly after hearings end is important, equally important is that the judgement writing process itself is as efficient as possible. When judgement delivery timelines are set, as is recently the case, efficient writing becomes essential to ensure that judges have enough time to deliver quality judgements. For this reason, courts in several countries have developed judgement writing protocols that outline how judgements should be structured, with guidelines for references and the scope of use of legal sources (National Judicial Colleage of Australia, 2017[3]) (International Criminal Courts, 2019[4]). Such protocols are then reflected in judgement writing courses for newly appointed judges and offered to already sitting judges. Ireland is also in the process of developing a judgement writing protocol, led by the Courts Service’s Legal research and Library Service. If a template is agreed on with the judiciary that all jurisdictions would follow, this could significantly streamline and strengthen the efficiency of the judgment writing process.
As further addressed below, effective research and judgement writing also benefits from judges having access to qualified research and legal staff support, which they currently do, along with technology solutions that help with accessing and reviewing voluminous case files.
Effective judgement writing and the timely delivery of judgements is a challenge for many courts, especially courts of appeal. As a result, a range of options have evolved and are regularly applied in other countries. A well-designed and supported structure to enable judges to deliver judgements in a timely manner can be found at the Court of Appeals in Colorado, United States. However, it must be recognised that these were developed over time, often require significant changes and support, and must be viewed in the context of the Irish courts. Some of the efficiency options summarised in Box 4.1 may be worth considering in Ireland.
The Colorado Court of Appeals is served by 22 judges, including the Chief Judge. Cases are heard by three panel judges. In 2016, the court resolved 2 466 cases, including written opinions issued and dismissals due to settlement or lack of jurisdiction. The judges of the court issued 1 723 opinions, requiring each judge to author about 80 opinions per year. Some of the protocols implemented to reduce the time needed to deliver the written judgements, while ensuring the quality of the decisions, are summarised below.
Predisposition memorandum (PDM)
Once a case is assigned to a judge for drafting, the judge prepares a “predisposition memorandum” (PDM) for the other two panel members. The judge, with the assistance of law clerks, drafts the PDM after reviewing the briefs, pertinent law and the record. Each PDM is typically written in draft opinion form with a proposed disposition of the case.
Each judge is responsible for drafting at least two PDMs per sitting, and the authoring judge circulates the PDM to the other division members no later than the Friday before the scheduled sitting. Generally, a Staff Attorney also drafts one case assigned to this sitting, and the judges take turns editing and announcing this case. Thus, each judge and his or her staff prepares two to three PDMs every two weeks. This means that each judge, after completing their PDMs, is also responsible for reading the briefs, pertinent law and, if necessary, portions of the record in four to five other cases every two weeks. When the judges prepare for oral argument, the PDM serves to provide insight and to focus questions for each division member. When oral argument is waived, the PDM serves a similar function for discussion in conference.
Attorneys for either side may request an oral argument. These requests are routinely granted, although the panel may, at its discretion, deny such a request. The division may also order that a case is orally argued, even though a party did not request oral argument.
Before an oral argument, each judge usually formulates questions to ask the attorneys. In some cases, a division may send pre-argument questions to the attorneys.
On the day of the scheduled sitting, usually immediately after oral arguments, the panel meets in “conference” to discuss all the cases assigned for that sitting, including waived cases. If the panel reaches consensus on a case they confirm authorship, and the case continues towards announcement. If they cannot reach consensus, the judges may decide to discuss it again at a later panel conference. These cases may require additional research, further record review or supplemental discussion before the panel reaches a decision.
All PDMs are tentative, as is authorship. The PDM may form the basis of the majority opinion, but it may also represent a dissenting view if the other two judges disagree, in which case one of the remaining two division members will author the majority opinion. It is not uncommon for all division members to disagree with at least part of the PDM; the initial author-judge may then prepare one or more revised drafts before a draft is acceptable to the other members of the division.
Nearly every Wednesday, each division will meet to discuss staff attorney cases, cases held over from prior division conferences and any other outstanding issues.
During the conference, the panel also discusses whether a draft opinion merits publication. Colorado Appellate Rule 35(e) provides that a case should be published when the opinion: 1) lays down a new rule of law, alters or modifies an existing rule, or applies an established rule to novel facts; 2) involves a legal issue of continuing public interest; 3) directs attention to the shortcomings of existing common law or statutes; or (4) resolves an apparent conflict of authority.
If the opinion may merit publication, the author will indicate possible publication and state the grounds for such when they circulate the PDM to the other division members. If the division agrees that the opinion merits publication, the opinion will be circulated to the full court for a majority vote.
Draft opinions that do not meet the requirements for publication are announced as unpublished cases. For these cases, the authoring judge, incorporating the views of the other division members, submits the draft opinion to the Reporter and Assistant Reporter of Decisions. They review each opinion for style, form, language, punctuation and general readability. The authoring judge then reviews suggested edits from the Reporter and Assistant Reporter of Decisions, and if they are substantive the other division members will also review them. The authoring judge then finalises the draft opinion.
Source: (Colorado Judicial Branch, n.d.[5]), Court of Appeals Protocols (webpage), https://www.courts.state.co.us/Courts/Court_Of_Appeals/Protocols.cfm.
Introducing the new figure of Staff Attorneys, as outlined in Box 4.1, could be considered by Ireland, which could possibly be a meaningful addition to reduce judicial effort. Staff attorneys in the United States, the United Kingdom and other common law countries are generally well-qualified lawyers with sufficient legal expertise and experience to support several judges in screening of cases for legally insufficiently supported submissions and conduct in-depth legal research in complex cases. The creation of this new support role should be built on a clear understanding of judicial support needs for which the assessment recommended in this report can be pertinent.
4.1.2. Improving how effectively cases are screened
Many Courts of Appeal around the world must address increasing numbers of non-qualifying or frivolous appeals. To address this challenge, some courts have developed different approaches to assist lay litigants and legal practitioners via a range of information and decision-making support mechanisms. Equally important is a transparent screening process that enables case review before a matter advances to the appeals process, while also protects the right to appeal.
In Ireland, only appeals related to planning and immigrant cases, and a few other statutory appeals, can come to the Court of Appeal if Leave of Appeal is granted by the High Court. Leave of appeal in planning appeals and appeals related to asylum/immigration decisions is limited to a point of law and of exceptional public interest. This is an effective mechanism, but only applicable to a few cases, and may be better placed elsewhere than at the High Court.
This is similar to processes used in the United Kingdom for review processes at the appeal level. Here, the first step in any appeal process from the High Court to the Court of Appeal is obtaining permission to appeal from the lower court that made the decision. When such permission is denied, or in cases where it is not needed, the next step is to bring the matter before a single Court of Appeal judge who will typically decide the application for permission on paper, without a hearing. If permission to appeal is granted, the appellant may then file a new skeleton argument and all parties must agree to the content of the bundles, which are then lodged with the Court of Appeal ahead of the appeal hearing. A listing questionnaire must also be filed by the appellant setting out practical matters relating to the substantive appeal. A court fee must be paid at each stage. More details about the process can be found in the comprehensive guidance for users provided by the HCMTS through their website (HM Courts and Tribunals Service, 2016[6]).
There is currently scope in Ireland to strengthen the effectiveness of the leave to appeal process to screen out cases that should not have come before the Court of Appeal. This may be either because the case is of too low value, seriousness or public interest, because there are no substantiated appeal reasons, or because of plainly fraudulent filings, which can happen in most countries. At the same time, these considerations must be balanced with the constitutional right to an appeal, constituting the appropriate safeguards to avoid blocking legitimate proceedings. This challenge has been addressed in some countries by introducing a review process at the Court of Appeal whereby a separate judge reviews and decides if a case qualifies for appeal. Other countries have created a screening unit, which is generally a unit of qualified lawyers (it can include a certain percentage of judges if needed) employed by the court to screen cases for these matters right after they are filed.
The proceedings at the Fourth Appellate District of the Court of Appeal of California, shown in Box 4.2, serves as an example of how several state level appeals courts in the United States screen cases before they are accepted.
In civil cases, the California Rules of Court require an appellant to file a Civil Case Information Statement (Cal. Rules of Court, rule 8.100[g]). This is reviewed by a central staff attorney to determine if there are any issues with the timeliness of the appeal or the appealability of the challenged judgement or order, whether the case is entitled to calendar priority, whether there has been a previous writ or appeal in the same case or in a closely related case, or whether the appeal is affected by a pending bankruptcy. It is the court's practice to grant priority on its own motion to matters involving child custody or visitation. In all appeals, after the respondent's brief is filed, or the time for filing such a brief has lapsed, the managing attorney or a designated staff attorney screens the case and estimates the amount of time that the preparation of a draft opinion is likely to take. Criminal appeals involving issues that can be resolved with little difficulty based upon well-established law, and that do not present a likelihood of dispute as to how the law applies to the facts, are designated as "by the court" cases. In criminal appeals in which the appellant's counsel is unable to discern any reasonable arguable issues to raise, the court must independently review the record.
Source: (Fourth Appellate District, 2019[7]), Internal Operating Practices and Procedures for the Fourth Appellate District, Division One, https://www.courts.ca.gov/documents/IOP_District4_division1.pdf.
One of the most evolved and interesting approaches to creating a full screening board can be found at the Supreme Court in Denmark with the Appeals Permission Board (see Box 4.3). If a similar solution is considered, independence of the Board should be safeguarded.
The Appeals Permission Board was established on 1 January 1996, and since then has considered all petitions to appeal to the Supreme Court in civil and criminal cases. The Appeals Permission Board comes under the Danish Court Administration, which is the independent national council of the judiciary. It is otherwise independent of the judiciary and the government services, and there is no appeal against the board's decisions.
The Appeals Permission Board considers petitions to appeal to the Supreme Court. As the cases in question have already been tried and reviewed by the intermediate appeals court, those accepted are test cases, such as those that may have implications for rulings in other cases, or cases of special interest to the public. Since 2019, the board has also considered petitions to appeal family law cases to the Courts of Appeals. Certain other case types of importance may be considered but require permission by the Appeals Permission Board to be brought before a superior court.
As this board is not a direct part of the Supreme Court there is no opportunity, nor can the perception be created, that judges of the Supreme Court show preference to certain parties or have the opportunity to hear cases they select themselves.
Source: (Procesbevillingsnævnet, 2020[8]), The Danish Appeals Permission Board – A short introduction (webpage), https://www.domstol.dk/procesbevillingsnaevnet/in-english/?msclkid=ee120927b34111ec914f61fdb69f2352
Irrespective of which approach is chosen, it is important to have an effective system in place that ensures only cases that truly qualify for appeal come before the court, and that those deciding the screening process do not then preside over the cases allowed to progress.
Any screening options would also require publishing the development of clear court rules, as well as having the resources to staff the screening process. An effective screening process can be supported by qualified non-judicial staff to assist the judge(s) making the screening decision. This can be a cost-effective approach to ensuring that cases handled by Court of Appeal judges are limited to those that qualify for appeal. As outlined above, this does require special attention and support for lay appellants so that they understand why an application to appeal is denied and have access to other available options to resolve their matters.
Some courts that aim to reduce unsubstantiated appeals make special efforts to publish detailed guidance for legal practitioners and others to help them in their decision-making process, and with preparing documents to be submitted. For example, the Florida Second District Court of Appeal sets out best practices from judges for each step of the appeals process, including documents and submission, as well as oral hearing practice (Florida Second District Court of Appeal, 2022[9]). Similarly, the Court of Appeal for England and Wales (Court of Appeal for England and Wales, 2018[10]) sets out detailed descriptions of each step in the appeals process, along with the forms to complete.
4.1.3. Improving case management data to support the development of more effective case management options
The Court of Appeal in Ireland applies a range of case management techniques to keep cases on schedule. Callover, directions, motions hearings and “mention only” events are generally effective pre-hearing activities. These can be used to ensure that all required documentation is ready and available for the main hearing, that parties are ready for the hearing date, and that any need for justified adjournments can be captured early and hearings rescheduled. When hearing dates are available, the court can also “fast track” short appeals. However, there appears to be some room for streamlining pre-hearing processes, and a review would be useful. For example, it would be worth reviewing whether changes such as adjournment due to sickness or an application to take up the digital recording should be mentioned in court, or whether this requirement could be redistributed to a registrar or someone with a similar function. Such review would also need to consider when and if a judge needs to be involved. While active case management by judges and their direct communication with parties is important and good practice, some of these elements could be taken up by non-judicial staff, particularly if the court has its own well-structured support office, similar to those found in other jurisdictions (e.g. at the Court of Appeal in England and Wales and the Court of Appeal in Maryland, Box 4.5).
Insufficient data to effectively manage the entire process beyond scheduled hearings, however, appear to pose a particular challenge for the Court of Appeal in Ireland. This can impede a solid assessment and the development of process refinements. While the lack of in-depth case management data is an issue shared across all court levels, some of the data issues are specific to each court level, and their implications vary across court levels due to the different case types and complexities dealt with.
Data available from the Courts Service do not yet provide the information needed to guide court scheduling at all court levels. So far, the hearing date and approximate time needed is largely determined based on counsel/litigant estimates, combined with the experience of the judge responsible for listing hearings. The interviews for this report highlighted that this can pose fewer challenges for the Court of Appeal than for other courts, as significant pre-hearing case management activities lead to setting hearing dates that are rarely postponed. In lower-level courts, however, it is more of a challenge. Nevertheless, currently there are no data on the average hearing time needed or on the number of hearings that require one or more full days. Such data could be compiled regularly from the Court Lists and the Court Services internal online database. To provide additional information for this study, a Judicial Assistant from the Court of Appeal was able to manually hand-count data on hearings that lasted a full day or longer in 2020 and 2021 (the same information was provided by the High Court for select case categories). At other court levels, however, such efforts could be significantly more time consuming, or even impossible in lower courts, as these courts have many more cases. Nevertheless, creating automated court hearing lists and other internal databases that allow for digital inputs and could be mined for essential case management data could be an important initial investment for the Courts Service to help take stock of and compile available data. It would also support further work that builds on existing processes and capacities to develop meaningful case management data. This could be an important element for the Courts Service to address in collaboration with judges from each court level (see Chapter 6).
The collection of data to assess and plan the time needed to write judgements could also be strengthened. While this information is not often captured in detail in most countries, data about the time between hearings and issuing a judgement are frequently collected, which can provide some indication of the time needed for the judgement to be completed. This is important information for scheduling and resource planning for the Court of Appeal, and equally important for informing parties and the public about how long cases generally take to be completed. The Courts Service currently collects information about waiting times, generally defined as the time from indicated readiness for trial to the date a hearing is scheduled. It would be useful for Ireland to start collecting information about the dates when judgements are issued, i.e. concluded by the court, so that the Irish Courts can establish the length of time from filing to case disposition, one of the core performance indicators in well-managed courts. Solely reporting on waiting times, without providing information about time needed to deliver a judgement, may also create wrong expectations for litigants. This appears to be less of a challenge for the District Courts and even the Circuit Courts, as judgements are either provided at the end of the hearing or soon thereafter, but it can become a serious challenge for higher court levels where judgement writing can take weeks. Such data issues are discussed in more detail in Chapter 6.
The type of data needed to effectively manage cases depends on what the court aims to achieve. There is some overlap (but also differences) between the data needed to track case progression and the data needed to assess if timelines are kept, as well as resource needs. Additional data are frequently needed to understand what contributes to delays or if the court pursues other goals, such as user access. While some of these data would be necessary for internal management purposes, they would not be needed or fit for publication.
In parallel, there are currently only a few performance measures that the court sets (not yet publishes) to manage its operations more effectively, for example the newly established timelines for judgement delivery. To be effective, the court would need a system that allows it to track judgement delivery status and, if timelines are adhered to, assess if certain case categories or other circumstances posed a threat to meeting timelines.
As the data needs of appeal courts differ to some extent from those of trial courts, so do performance measures to support effective and efficient court operations. In the United States, where courts have tracked case data for over 60 years, a range of guides and tools have been developed by lawyer and court organisations to assist the many state courts in their efforts to advance capacity to manage cases and performance. Standards for state level appellate courts were first proposed in 1977 (American Bar Association, 1994[11]) These early efforts were considered aspirational but not widely implemented. This changed when the Joint Court Management Committee of the Conference of Chief Justices (CCJ) and Conference of State Court Administrators (COSCA), in conjunction with the Conference of Chief Judges of the State Courts of Appeal (CCJSCA), the National Conference of Appellate Court Clerks (NCACC) and the American Bar Association (ABA), developed special model time standards designed to allow state appellate courts establish time standards based on their own circumstances (See Box 4.4). Such time standards are used today in most state courts of appeal in the United States, and similar measures have been applied in other countries (National Center for State Courts, 2014[12]). Some of the leading courts in the United States have advanced beyond the standards, applying broader performance measures such as CourTools that can be linked to automated case management systems and provide up-to-date management and performance information to court leadership and individual judges. CourTools were one of the bases for the development of the Global Measures of Court Performance that have evolved since 2012, and have been adopted by courts outside of the United States, such as in Australia and Moldova.2 These internationally tested performance measures with specific implementation steps may be an option for the Irish courts to consider in the future, as further discussed in Chapter 6.
To prepare the ground for advancing case management and the development of time and other performance standards, it could be helpful to review what was initially considered the basis of setting time standards and the minimum data needed.3
Key data features that enable appellate courts to effectively monitor their actual appellate processing times on an ongoing basis and ensure the court is accountable for its performance are:
Publish the results of measurements to time standards
The National Center for State Courts’ ‘Time to Disposition’ methodology provides guidance on the design, calculation and practical application as a court performance measure that can be helpful for Ireland. The key steps include:
Source: (National Center for State Courts, 2014[12]), Model Time Standards for State Appellate Courts, https://www.courtools.org/__data/assets/pdf_file/0015/9321/model_time_standards_for_state_appellate_courts.pdf and Appellate Court Performance Measures – Measure 2 “Time to Disposition” https://www.courtools.org/__data/assets/pdf_file/0024/9672/courtools_appellate_measure2_time_to_disposition.pdf
In addition to case management data that supports the operations of the court and longer-term planning, well-managed courts also tend to provide individual judges with data to manage and keep track of their own caseload. Case listing information is helpful in this regard, but only to some extent. This could be less of a challenge at the Court of Appeal level when considering the lower volume of cases per judge in comparison to trial court levels. However, a lack of access to performance data could limit a judge’s ability to review case progression and plan ahead, unless they keep their own data.
When performance-based case processing standards are introduced, such as delivery timelines for judgements at the Court of Appeal in Ireland, the need for actual data will become more pressing as judges will need to be able to track case progress towards set timelines. An example of the types of core information that individual judges would need in terms of case management data can be found in a nationwide Judicial Tools Work Group4 in the United States (JTC, 2014[13]):
The age of pending case status with information on essential case management steps for their own workload.
Case management information relative to benchmarks and time standards related to their cases.
Timeline monitoring and achievement data for their own review and reporting.
Early reminders for cases out of compliance with time standards.
Data to monitor cases with no future scheduled court activities.
Judges at different jurisdictions and court levels often require additional data to manage their own caseload effectively and plan ahead. Further data are needed to effectively work with others and continuously assess workload and resource requirements, as well as identify potential processing issues and options to address these issues.
4.1.4. Dealing with significant numbers of lay litigants
The number of lay litigants is increasing at the Court of Appeal in Ireland, not unlike in other court levels and common law countries. To date, the Courts Service only collects data on the percentage of lay litigants at the Court of Appeal, indicating that 30% of cases are brought by lay litigants.
In the United States, close to 50% of all cases filed in courts of appeal since 1995 were filed by lay litigants, and the trend is increasing. For trial court levels, especially lower courts, these numbers tend to be even higher. In 2019, the National Center for State Courts reported anecdotal data that 75% or more of civil cases in state and local courts have at least one self-represented litigant (SLRN, 2019[14]).
These lay litigants need detailed information about their legal rights, how courts work, filing documents and handling their cases. This can create additional pressure for court resources that are already limited. The often significant legal complexity of appeals cases compounds these challenges.
In Ireland, the Access to Justice Civil Reform User Group was recently established to facilitate litigants who need more information when representing themselves. The Department of Justice in collaboration with the Courts Service envisioned that this would be the mechanism which would take forward the recommendations in the Kelly Review report regarding establishing a steering group to facilitate information provision to lay litigants. It was recognised that there is a need for guides to be made available covering proceedings in all court jurisdictions utilising audio-visual as well as textual formats, and efforts to this effect are being targeted to be completed by 2024 (Department of Justice of Ireland, May 2022[15]). At present, and as recognised by the authorities, there is scope to further increase the accessibility of information for lay litigants, especially regarding help in deciding to seek an appeal, and how to enhance the use of technology in resolving disputes. Additional plans to be implemented between 2022 and 2024 include the creation of a central on-line information hub through which dedicated legal and practical information is provided for those contemplating bringing proceedings without professional representation, and provision of “drop in” facilities in proximity to court buildings to enable unrepresented litigants to consult voluntary legal advice centres (Department of Justice of Ireland, May 2022[15]). Box 4.5 outlines ways that different countries provide support to lay litigants.
The information provided on the website of the UK Courts and Tribunals provides an example of guiding lay litigants through the different decision-making, preparation and presentation steps required at all court levels, including the Court of Appeal. There are helpful links to needed forms and organisations to turn to for free assistance (Courts and Tribunals Judiciary, 2022[16]).
At the Maryland Court of Special Appeal, in addition to a broad range of self-help and information options already available to lay litigants, the court developed a booklet to specifically assist lay litigants in their decision to file an appeal, as well as how to proceed with an appeal or application for leave. It provides easy to understand overviews and step-by-step guidance, links to required court forms, and options for further assistance (Court of Special Appeals Maryland, 2018[17]).
The clerk of the Wisconsin Supreme Court and Court of Appeals has produced a guide on the appeals process and types of cases heard by these courts. It is drafted in question-and-answer format and provides contact information, website links and checklists to assist in preparing documents (Wisconsin Supreme Court and Court of Appeals, 2021[18]).
In higher tech environments, artificial intelligence (AI)-driven software aids lay litigants and other court users. For example, legal navigators such as Florida Law Help and the Colorado Resource Network help pro se litigants in identifying legal issues, drafting and answering complaints, and filing court documents (La Roque-Doherty, 2021[19]). The New Jersey Courts launched a chatbot in 2019, the Judiciary Information Assistant, that uses AI to answer commonly asked questions by guiding users to specific court and legal topics. By clicking on the related icon on the right side of the court’s extensive self-help page, the user can choose from a list of common questions (New Jersey Courts, n.d.[20]). Another icon links a selected page or paragraph to google translate for an approximate translation in a wide range of languages. Similarly, a special online self-help resource centre was created for the California Appellate Courts that is assisted by a chat bot and available in English and Spanish (California Appellate Courts, n.d.[21]).
Increasingly, courts in Australia, Canada, the Netherlands, the United Kingdom and the United States, among others, are offering online dispute resolution (ODR) options geared towards lay litigants. ODR refers to the resolution of disputes using technology, i.e. processes where a substantial part or all of the communication in the dispute resolution process takes place electronically (Mak, 2018[22]). So far, court offered ODR tends to be limited to disputes involving small claims traffic and family cases (Superior Court of California, 2021[23]). The COVID-19 pandemic has increased interest in expanding ODR offers at courts and appellate courts that already offer ADR, such as the Maryland Court of Special Appeal, which is well positioned to move to ODR if funding becomes available.
Source: (Courts and Tribunals Judiciary, 2022[16]), Advice for Litigants in Person (webpage), https://www.judiciary.uk/you-and-the-judiciary/going-to-court/advice-for-litigants-in-person/; (Court of Special Appeals Maryland, 2018[17]), A Guide for Self-Representation, https://www.courts.state.md.us/sites/default/files/import/cosappeals/pdfs/cosaguideselfrepresentation.pdf; (Wisconsin Supreme Court and Court of Appeals, 2021[18]), Guide to Wisconsin Appellate Procedure for the Self-Represented Litigant, https://www.wicourts.gov/publications/guides/docs/proseappealsguide.pdf; (La Roque-Doherty, 2021[19]), Artificial intelligence has made great inroads, but hasn't yet increased access to civil justice, https://www.abajournal.com/magazine/article/artificial-intelligence-has-made-great-inroadsbut-not-as-far-as-increasing-access-to-civil-justice; (New Jersey Courts, n.d.[20]); (California Appellate Courts, n.d.[21]); (Superior Court of California, 2021[23]), Presiding judge Eric C. Taylor announces new free online dispute resolution services for small claims litigants, https://www.lacba.org/docs/default-source/lasc-2021-court-news/21-nr-small-claims-odr.pdf.
4.1.5. The availability of qualified staff support
The President of the Court of Appeal is assigned an Executive Legal Officer. Executive legal officers provide legal and administrative support to the Court Presidents of each jurisdiction in relation to their organisational and administrative functions and to international responsibilities and/or those of the court.
Each judge of the Court of Appeal (except the Court President) is assigned one judicial assistant when they do not have an usher/crier. Of the 15 ordinary judges, only 2 do not have a judicial assistant assigned directly to them. There is also a pool of four unassigned judicial assistants in the Court of Appeal who assist with legal research and provide additional support where the workload requires. Judicial assistants provide legal query assistance, administrative support, proofreading and judgement checking, and court work to the judge they are assigned to. They are hired on three-year contracts and assigned to a judge by the Chief Justice or President of the jurisdiction, based on their competencies and qualifications.
Court of Appeal judges also have access to research support associates, who are part of the Legal Research and Library Service (LRLS) available to judges across all levels. While most of the associates’ work focuses on research and developing documents benchbooks and newsletters or support conferences, they are also available for special research tasks.
Administrative and management support is provided by the Office of the Court of Appeal – Civil, and the Office of the Court of Appeal – Criminal and Military. Both are overseen by the Registrar of the Court of Appeal (Principal Officer). For practical reasons, the Office of the Registrar of the Court of Appeal operates in two locations. The Civil Office is located in Aras Ui Dhalaigh and the Four Courts, and currently has the following staff:
The Criminal Office is located in the CCJ and currently has the following staff:
Other administrative support, including IT support, facility management and management data, are provided by the Courts Service’s Superior Court Directorate, which serves the Court of Appeal, the Supreme Court and the High Court. So far, most of the work of the administrative staff appears to be paper based, with limited automation to support tasks.
Much of the time-consuming work that staff and judges currently handle is undertaken manually and on paper. In comparison, these activities are routinely and quickly completed by case management systems in other courts. These paper-based activities can be inefficient and time consuming. For example scheduling, when an initial hearing date is allocated, that date is entered into several schedules by a member of staff in the Office of the Court of Appeal. Before the start of each new legal term, the executive legal officer (ELO) to the President uses this information to complete a document known as a “schedule of assignments”. This document is essentially an Excel spreadsheet that sets out, among other things, the appeals listed for hearing that term, what each appeal entails, where and when each appeal is due to be heard, and by whom. Before panels of judges are assigned to appeals, the President circulates this partially completed document to members of the court to ascertain whether there are any appeals in which members of the court are conflicted. These data are then entered into the schedule and the President assigns the cases accordingly. Once the schedule of assignments has been completed, the finalised spreadsheet is circulated to the members of the court (for their own diaries) and the respective offices of the Court of Appeal. The offices then update the legal diary accordingly and start distributing papers for hearings.
While an effective automated case management system would require real-time data entry, it could reduce the time required for this process and provide more accurate results. Information would be automatically merged into different schedules, allowing the system to automatically detect existing time and date conflicts and schedule the event as a “draft” in each judge’s electronic schedules for final verification. Combined with a well-developed judicial conflict database and content management system, potential conflict of interest situations could be flagged early on.
While a system such as this will take time, effort and investment, it has strong potential to achieve significant savings in staff and judicial time. Furthermore, it would free up resources for more effective and advanced court and case management tasks. To achieve results, there would need to be efforts to plan ahead by starting to streamline processes to the extent currently possible and begin to prepare staff for taking on significantly different roles.
The many planned case management, data needs and IT modernisation efforts will require adjustments in support staff levels, and likely in the way support is currently provided to the divisions, to individual courts, and to the Court President and other judges responsible for scheduling, case management and further planning needs. It will also likely trigger the need for greater involvement, responsibility and effort on the part of judges. A stronger judicial focus on individual case management and overall court performance may require the designation of one judge, full or part-time depending on the scope of responsibilities, to focus on management in addition to the Court President. As discussed later in this chapter and in Chapter 6, courts strongly committed to strong judicial case and court management tend to designate select judges to such functions. They may be Administration Judges, as in Maryland, or Vice Presidents.
Considering the significant effort and time that judges at the Court of Appeal must dedicate to ensure their decisions are well supported, reasoned and written, having access to qualified staff who help them with legal research and summary of findings would be useful, as well as cost-effective. Interviews with Court of Appeal judges indicated, however, that not all judicial assistants can provide the research and drafting support needed, and that judges tend to prefer to write their decisions from scratch.
Experience in other courts internationally could offer relevant insights. For example, at the Court of Appeal in England and Wales, every judge is assigned a clerk, which is engaged for one year and candidates must have graduated with excellent degrees and have some demonstrated legal research experience to be considered (Courts and Tribunals Judiciary, 2020[24]). Similarly, at state level courts of appeal in the United States, judges are supported by law clerks, who tend to be hired for a one-year period with the possibility of extension if the judge approves (Colorado Judicial Branch, n.d.[25]).
As court management responsibilities increase in Ireland and as the Courts Service modernisation programme evolves, this could be a good opportunity to review the entire administrative, management, legal support structures, operations and responsibilities currently in place at the Court of Appeal.
4.1.6. Limiting the scope of submissions and oral hearings
Beyond unsubstantiated cases, there appears to be a range of cases coming to the Court of Appeal with a large number of individual appeal pleadings and a large amount of supporting documentation.
Currently, the court limits the word count of initial submissions and, when the appeal commences, the time for oral submissions and closing reply (if not already agreed by the parties). Evidence is also limited to that adduced in the court below (so far as it is relevant and admissible) or additional evidence that a litigant has expressly been permitted by the court to present. On occasion (particularly where there has been a history of non-compliance), the court may use “unless” orders to automatically strike out or dismiss matters if there is non-compliance with procedure. With all its orders and case management, the court is very conscious of its duty to be fair to both sides, including lay litigants, and of the right to a fair process within a reasonable time protected by Article 6 of the European Convention on Human Rights.
Submission requirements could be part of an early screening process, ensuring that those who do not comply are rejected and increasing incentives for compliance. Considering that appeal court judges in Ireland are regularly faced with reviewing several boxes of evidence for individual cases, there still appears room to review options to further streamline submissions and oral proceedings. Such adjustments may require revisions to legislation and supporting court rules that lay out limits to evidence and supporting documents that will be accepted for consideration at appeal.
In comparison to UK and Ireland approaches, the United States has a long tradition of limiting document submissions and oral argument time, and well as limiting appeals to the review of written documentation only. While the latter may not be an option in Ireland, stricter rules for evidence submission, time limits of oral arguments, and possibly the option for appellants together with respondents to waive oral hearings, are all alternatives that could be reviewed for adjustment to the Irish legal environment.
4.1.7. IT solutions
Courts of Appeal have special needs due to the nature of cases coming to them, the particular legal issues heard and their role as a precedent setting court. These needs extend beyond typical automation and other IT solutions used and necessary for all court operations and at all court levels across the country.
Cases at the Court of Appeal level focus on considerations and the application of the law in the lower courts. Litigants to an appeal may argue that there was an error in prior proceedings or in the lower court judge’s application or interpretation of the law. The focus on legal questions and possible need to correct a lower court’s error mean that appellants must submit both the supporting evidence of such errors and the legal research to support their arguments. Furthermore, considering that appeals tend to trigger additional legal costs, cases reaching the Court of Appeal tend to be serious, higher value cases. This generally translates into voluminous submissions (even if court rules outline tight limits) and requires additional legal research to support well-reasoned judgements that may not only point out errors in a lower court decision, but more importantly set precedent for future decisions of its kind.
Combined with the fact that the courts are still largely operating in a paper-based environment, judges at the Court of Appeal are often presented with submissions in various electronic and paper-based formats. Information currently available on the Courts Service website (Court of Appeal, 2020[26]), as well as interviews with Court of Appeal (and High Court) judges, indicate that court rules for electronic document submission appear to outline guidance for the electronic submission of documents mainly in PDF form (except initial notices and submissions) and follow rules for paper submission.
The incorporation of guidance on submitting electronic documents is a positive step towards automation and away from the use of paper in court. The COVID-19 pandemic generated an expansion of the use of virtual hearing options, and consequently, the Irish courts at all levels introduced a range of procedural changes to reduce the need for parties to appear in court that also resulted in greater processing efficiencies. In April 2020, the Court of Appeal authorised the e-filing of appeal papers. With great flexibility, the Court allowed parties to use various cloud-based sharing services such as Google Drive, DropBox, iCloud and OneDrive (all subject to agreement between the parties and the court). Moreover, the court authorised and encouraged, under the same conditions, the use of court document management platforms such TrialView, if the parties provided for them.
Building on these developments, there is scope for introducing further all-encompassing digital measures such as e-forms that automatically merge into an electronic case management system when submitted. This is preferred in comparison to e-forms that are simply e-mailed to case management staff and which require printing or manual data re-entry to transfer the information into the case management system. There is also scope for more advanced and environmentally friendly IT solutions that reduce the use of paper and minimise the administrative staff time required for intensive document handling, retrieval and storage, or that can even help judges review documents and draft judgements. This should be coupled with efforts to strengthen digital skills and an increasingly paperless culture in Irish courts.
PDF files can be difficult to read if not transferred properly, and depending on the case may sometimes require additional tools to be searched and highlighted. These are essential functions for judges and well-qualified assistants. The Irish Court of Appeal (possibly along with one or two of the less busy but especially challenging lists at the High Court, such as the Commercial Court) could be a good location to pilot test more advanced document management systems and AI-driven software for content management that would assist judges write judgements and potentially reduce the time and effort of this all-important task (see Box 4.6 and Box 4.7 for examples from the Cyberjustice Laboratory in Canada and the Court of Appeal in England and Wales)
The use of artificial intelligence-driven software and technology in judgment-writing in Canada is a precursor in the development of cyberjustice. Since its creation in 2010, the Cyberjustice Laboratory of the Univeristé de Montréal has been analysing the impact of technology on justice and develops concrete technological tools adapted to the reality of judicial systems.
The Cyberjustice Laboratory aims to empower justice stakeholders through the development of chatbots, online dispute resolution (ODR) platforms, predictive algorithms, etc. Some of these tools are already in use in Canadian provinces: in British Columbia, the Civil Resolution Tribunal (CRT) aims to offer an accessible, affordable way to resolve disputes without needing a lawyer or attending court, as Canada’s first online tribunal. The Solution Explorer is the first step in the CRT dispute resolution process. It uses questions and answers to give people tailored, plain language legal information, as well as free self-help tools to resolve their dispute without having to file a CRT claim. The Solution Explorer uses a basic form of artificial intelligence called an expert system, which makes specialized legal knowledge widely available to the public. If the first step is unsuccessful and the parties do not manage to reach an agreement, the CRT assists the parties in preparation for adjudication by helping them narrow down issues and organise their claims. In turn, this lessen the extent of the judge’s involvement in the case and promotes efficiency in dealing with small claims.
Similarly in Ontario, The Condominium Authority Tribunal (CAT), a fully virtual court, uses an online dispute resolution system (CAT-ODR) to analyse the given facts in a case and propose a solution. These tools aim at reducing judges’ administrative burden, accelerating the judicial process and, where necessary, streamline judgment-writing.
Sources: Cyberjustice Laboratory, https://www.cyberjustice.ca/en/logiciels-cyberjustice/nos-logiciels/ ; Court Digital Transformation Strategy 2019-2023, British Columbia, Ministry of Attorney General https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/about-bc-justice-system/justice-reform-initiatives/digital-transformation-strategy-bc-courts.pdf ; Civil Resolution Tribunal https://civilresolutionbc.ca/ ; Condominium Authority Tribunal https://www.condoauthorityontario.ca/tribunal/
The development of such pilot programmes, like any other efforts to enhance court IT solutions, requires judges and court support staff to be included early on. They must also be enabled to take leadership of these programmes, especially if directly impacted, and effective training programmes must be developed with their collaboration.
Bundles refer to the compilation of all relevant documents and authorities that a litigant intends to present to the court. This practice is used by UK courts to ensure that judges can quickly and easily access information in one place. The Court of Appeal (Criminal Division) (CACD) provides an index to judges’ bundles in Word format. Traditionally, bundles were completed in paper form with an index, but UK courts have increasingly been moving to an electronic format. In November 2021, the Courts and Tribunals Judiciary posted updated guidance on e-bundles to ensure consistency and the efficient management of court hearings (Courts and Tribunals Judiciary, 2021[27]; Ministry of Justice, n.d.[28]). Within this guidance there are ten rules, including the format, page numbering or pagination, hyperlinking, optical character recognition (OCR) requirements, page orientation, default view, resolution, and file size for e-bundles. There is also additional guidance on how e-bundles should correspond to any paper bundles, and what to do if supplemental documents must be added after submission. The guidance stipulates the file name format method of delivery, and links to two videos that illustrate how to create e-bundles for lay litigants (Logue, 2021[29]).
In a digital bundle, each item on the index is presented as a hyperlink to the relevant document on a document content system. Opening the hyperlink will take the user directly to the Crown Court Digital Case System (DCS). Once uploaded, the Criminal Appeal Office (CAO) is then able to produce digital bundles by creating an index with a hyperlink to each document The court made full use of these bundles in DCS cases when it had to move to virtual hearing applications and appeals throughout the COVID-19 lockdowns. This is a system that appears to be working well and has been well received by the judiciary and court users. It has had a significant impact on the process of preparing bundles for the judiciary and has reduced the amount of paper used by the CAO (Court of Appeal UK, 2021[30]).
Source: (Courts and Tribunals Judiciary, 2021[27]), General guidance on electronic court bundles, https://www.judiciary.uk/announcements/general-guidance-on-electronic-court-bundles/; (Ministry of Justice, n.d.[28]), Practice Direction 51O – The Electronic Working Pilot Scheme, https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part51/practice-direction-51o-the-electronic-working-pilot-scheme; (Logue, 2021[29]), Court e-bundle requirements [complete 2021 guide], https://communities.lawsociety.org.uk/civil-litigation-features-and-comment/court-e-bundle-requirements-complete-2021-guide/6001815.article; (Court of Appeal UK, 2021[30]), In the Court of Appeal (Criminal Division), 2019-2020, https://www.judiciary.uk/wp-content/uploads/2021/05/6.7429_JO_Court_of_Appeal_Criminal_Division_2019_20_WEB-v2-with-tweak.pdf.
Today, standard document management software provides more than an organisational system to associate documents with case matters and limit access to certain court users. This software now regularly includes document versioning and audit trails that track user access to documents and a host of other features. It allows users to create, annotate and collaborate on legal documents and securely share and collaborate on documents with clients, co-counsel, experts and more. It also enables the conversion of scanned documents into optical character recognition format, which creates searchable, indexed PDFs. Other useful features include annotation tools, e-signature and customised security capabilities, including encryption. More advanced software also integrates AI tools and machine learning to search documents for information clusters, providing the ability to easily locate and extract key information previously marked (Black, 2020[31]).
Short-term:
Collaboration for enhanced data collection and time standards: Strengthen collaboration among the judiciary, the Courts Service and other relevant staff to collect data to track and assess the new judgement writing timelines, and with a view to inform the future implementation process of time standards and the related data tracking system.
Screening of cases: Consider the creation of a team of judges, possibly supported by judicial assistants or other legal staff, to screen incoming cases to identify unsubstantiated cases, as well as to assess submission gaps and appellant trends to inform the development of support options for lay litigants and other screening options. Overtime, consider developing more sustainable options for case screening (e.g., via an independent board or other body).
Enhancing use of e-documents: Continue efforts to develop and standardise the current guidelines for e-document submissions.
Pre-hearing processes: review and consider ways to streamline pre-hearing processes with a view to rebalancing tasks between judges and non-judicial staff (e.g., to consider where, when and if a judge needs to be involved and what tasks could be administered by a registrar or someone with a similar function).
Data: Ensure regular and systematic data collection on a wide range of issues affecting court performance, such as the average hearing time, or the number of hearings that require one or more full days.
Medium and longer term:
Procedural simplification and automation: Identify options for streamlining and requirements for the automation of case processes, including e-forms, requirements and standards for full e-filing, as well as more detailed data tracking of case processes and timelines, in collaboration with the Courts Service.
Time standards: consider introducing time standards, drawing from international practice.
Review of staff support: To ensure that judges can work as efficiently as possible, especially as more advanced case management and timelines are introduced and as automation progresses, consider carrying out a review of the availability and the needed competencies of administrative and research support staff for Court of Appeal judges to ensure necessary qualifications and enhance cost-effectiveness, including the option of introducing Staff Attorneys to support complex legal research functions.
Use of IT tools: Strengthen the use of IT tools to enhance efficiency, including testing document and content management software, including with artificial intelligence tools to facilitate documents search and analysis.
Online judgement banks: Strengthen the availability of internal online judgement banks/ repositories to support judgement writing.
Case management support team: Consider the creation of an initial case management support team, possibly led by a dedicated judge, to ensure proper judicial guidance, especially as case management advances.
Stakeholder engagement in automation processes: Ensure the involvement of all relevant stakeholders, including the judiciary, to provide needed guidance for the planned phased automation of all processes to secure a system that facilitates the tracking of individual cases effectively, and supports regular data-driven processes, staffing and user needs assessments in the long run.
Support for lay litigants: Consider to further increase the accessibility of information for lay litigants, especially regarding help in deciding to seek an appeal, and how to enhance the use of technology in resolving disputes.
In the High Court, the results of the time study underscore growing workloads and indicate the need for more judges and other court staff. At the same, they also point to several other issues that have led to the less effective use of human and other resources. The following sections explore potential efficiency improvements that can help ensure the optimal use of judicial resources and identifying cost-effective solutions.
4.2.1. Judgement writing
High Court judges spend a significant portion of their time writing judgements and carrying out the related research and reading. The High Court is a superior court of record, which means that it must deliver written judgements for resolved cases that will be published. Only in short and simple proceedings may a judge give an oral ex tempore judgement. As a precedent setting court, the High Court’s decisions not only relate to the case at hand, but may provide direction for a range of future legal disputes. This places special demands on the task of judgement writing. During the Delphi study, participating judges discussed the average judgement writing times for different case types in their experience, and agreed that in many case categories an average of four hours writing time is required per hearing hour. The more complex and contested the matter, and the more involved the legal arguments and sources to be referenced, the longer the hearing will last, and therefore judgement writing will take longer. The challenges of setting aside appropriate time to research, draft and refine judgements for complex cases has already been addressed in the Court of Appeal section (Section 4.1), and applies in the same way to the High Court.
The High Court has made efforts to ensure that judgement writing is not delayed, but the increasing pressures to simultaneously ensure that hearings are not scheduled too far in the future has often been a challenge. For example, while judges in the Non-Jury/Judicial Review Division should currently be scheduled to have a four-day writing week every fifth week, in practice this is challenging and not always possible. Judges assigned to focus on reading and writing are regularly asked to cover hearings when another division is shorthanded, or if an emergency arises. Judges mostly do not have assigned break times during the week to write judgements, at most they are able to sketch a skeleton judgement and decision. One reason for this back-to-back scheduling of hearings is the court’s effort to limit the waiting time for a hearing after a case is considered “ready to be heard.” As this contributes to delays in judgement writing, an alternative strategy to maintain efficiency in both hearings and rulings may be required.
As the High Court President identified in her submission to the Judicial Planning Working Group, several other common and civil law jurisdictions provide writing time immediately after the conclusion of a case. This is efficient as it reduces the time judges need to revisit and familiarise themselves with the substance of the case, and ensures that a judgement can be delivered in a timely manner. Especially when courts hold themselves accountable for timely availability of judgements by setting delivery timelines, as has recently been introduced at the Court of Appeal, delaying judgement writing to handle other cases can impede such a goal.
Set judgement delivery timelines and scheduled writing times established in other jurisdictions do not always imply that the judge can devote the days following the hearing to full-time judgement writing. Instead, they may have a limited hearing calendar to provide for at least half-day writing time for several days or longer, depending on the needs of the case and how much time can reasonably be set aside. Judgement delivery timelines are also frequently set as a percentage range to achieve, instead of a timeline. Box 4.9 illustrates how timelines are used in New Zealand and Norway.
The High Court of New Zealand set general judgement delivery timelines of three months for all reserved judgements; however, the court regularly reports on the percentage of judgements delivered within these timelines.
Similarly, the Nedre Romerike Tingrett Court in Norway regularly reports on judgement delivery timelines, along with other key time performance measures. The Chief Judge, each judge and the chief administrator receive monthly reports generated from the electronic case management system. The judges reported that the timelines and regular reports were useful, but were concerned that they stressed timeliness over the quality of the decision. To ensure that judges are not pushed to issue judgements too quickly, the Chief Judge has the power to intervene if needed.
Source: (Court of New Zealand, 2022[32]), Judgment delivery expectations (webpage), https://www.courtsofnz.govt.nz/the-courts/high-court/high-court-judgment-delivery-expectations-inquiry-process-and-recent-judgment-timeliness/; (CEPEJ, 2012, p. 12[33]), SATURN Guidelines for Judicial Time Management https://rm.coe.int/saturn-guidelines-comments-and-implementation-/16809ebb21.
Timelines developed by a court need to consider court capacities to draft judgements accordingly and the needs of the case types handled, as well as remain linked to overall judicial performance expectations and provide flexibility for unusual cases. The creation of time scales could therefore be a sensible approach. To be effective, time scales can be combined with regular assessments to identify if and why timelines may not be adhered to, and some enforcement powers resting with a Court President or Chief Judge could be put in place.
Courts in other jurisdictions have also introduced style guides for judgement writing, along with training on more efficient judgement writing skills. Such guidelines are not just aimed at recently appointed lawyers coming to the bench, but address judges throughout their career to hone their skills in effective writing that is clear, concise and may save time (Cooper, 2015[34]). The Canadian Institute for the Administration of Justice, jointly with the National Judicial Institute of Justice, goes further by offering advanced judgement writing courses specifically aimed at experienced judges (Canadian Institute for the Administration of Justice, 2022[35]).
Many courts today are also exploring software solutions, such as those outlined in the Court of Appeal section, to assist judges in effective judgement writing by providing easily searchable access to both guiding decisions and to their own decision bank. Content management software could particularly be of use, especially when submissions are voluminous.
Well-trained legal staff to assist judges with research and provide drafting support are employed as “court clerks” in some jurisdictions. In the United States, clerks are assigned directly to a judge in the higher courts in many state courts (Sheppard, 2008[36]). Similarly, judges in the Netherlands’ Commercial Court, created in 2019 and consisting of a District Court (that hears the kind of matters handled at the High Court in Ireland), a Court in Summary Proceedings and a Court of Appeal, are supported by several law clerks to help with drafting judgements, etc (Rechtspraak, n.d.[37]). In Ireland, if this were implemented, it may require the adoption of more appealing conditions for highly qualified applicants, or even the creation of a new figure other than the current Judicial Assistants.
It was reported that no such support mechanisms for judgement writing exist at any court level in Ireland, and that except for the newly established judgement delivery timelines at the Court of Appeal, no processing timelines have been established for any of the major case process steps at the High Court or other court levels. As mentioned, High Court judges are also currently experiencing limited administrative and research support.
4.2.2. High number of interlocutory hearings and adjournments
The time study and additional data collection efforts indicated that in civil and family law cases, High Court judges spend significant time on interlocutory hearings, some of which lead to settlement and others are essential for moving the case to conclusion; however, several result in adjournments without moving the case forward. Masters and County Registrars could be helpful figures to lead some of these case steps to avoid overloading judges with these hearings.
High settlement rates are common in most common law countries. Courts in the United States and the United Kingdom, for example, have developed different approaches to ensure that cases are generally brought to them after out-of-court settlement options have failed and where at least one party is ready to seek a judicial decision. Legislation has been adjusted in these jurisdictions to provide judges with the power to limit adjournments, require early disclosure, hold parties and their lawyers accountable for not meeting agreed-upon or generally established timelines for submissions, conduct case conferences to limit the number of contested issues, limit submissions to essentials only, and a range of other measures to efficiently move the case along while still providing settlement options as long as they do not delay the process. Similar recommendations, including the introduction of effective adjournment rules and discontinuance by default, were mentioned in the Kelly report (Kelly, 2020[38]). Some of these measures require additional judicial time to manage them, but not all and not for all cases. Furthermore, limiting contested issues early on can advance settlements and mean that they will not need to be addressed in detail if a full hearing is held, nor in the judgement, which saves judicial time towards the end of the process.
The court process at the Commercial Court in the United Kingdom encourages and promotes settlement by requiring the parties to define the issues at an early stage (before a first Case Management Conference). This facilitates the evaluation of the parties’ positions following disclosure and/or exchange of witness statements and expert reports. Trial dates are also fixed with reasonable lead times, which focuses parties and lawyers on whether the impending trial is the best option to resolve the case (Judiciary of England and Wales, 2021, p. 25[39]). This does not mean that cases moving forward never settle after a few days of the hearing, but rather that events leading up to this stage are more controlled and streamlined by the court, making late settlements less frequent.
Well-designed and resourced court support for settlement is accepted nowadays as a part of the court process in the UK. For example, “Negotiated Dispute Resolution” (NDR) is often built into the Commercial Court’s processes to facilitate settlement (Judiciary of England and Wales, 2021[39]). The Court and Tribunal Service provides the court with regular reports to assess settlement rates, including when matter listed for hearing settled before or during the hearing.
Source: (Judiciary of England and Wales, 2021[39]), Business and Property Courts: The Commercial Court Report 2020-2021 (Including the Admirality Court Report), https://www.judiciary.uk/wpcontent/uploads/2022/02/14.50_Commercial_Court_Annual_Report_2020_21_WEB.pdf/.
Settlements is an area where further and more detailed data collected regularly can provide insight into case trends beyond the basics (e.g. number of cases incoming, listed, and generally settled in and out of court) to further support the development of effective case management approaches and allow for tracking compliance with timelines. The Courts Service provides a general breakdown of cases settled after coming to the court, except for Commercial Court Cases.5 These data indicate that the percentage of Commercial Court cases that settle at the substantive hearing, i.e. after significant judicial effort has been invested, has increased to over 30% since 2016 (see Table 4.1). While settlement at the hearing saves the judge significant judgement writing time, it would be important to understand why these settlements come so late in the process, if the hearing delays limit the incentives for earlier settlement, and, most importantly, whether more judges to ensure cases are heard in a timelier manner are the most appropriate remedy. Without more information to address these questions, effective solutions remain challenging to develop.
As mentioned above, for most other case types, the data related to the number of interlocutory hearings, number and reasons for adjournment, and settlement rates at different stages are not regularly compiled and analysed. Data collected by the High Court to shed additional light on hearing length and the number of hearings held in Chancery cases (see Box 4.10 above) indicate a relatively high frequency of interlocutory hearings and adjournments for most case types reviewed. Additional data would allow clarification of whether judicial efforts to support settlements before the substantive hearing are effective or are enabling parties to extend the process or use it for negotiation actions that should have taken place before a case is listed. The small case sample review indicates a relatively high frequency of interlocutory hearings that result in adjournments that do not move the case forward, called “ineffective” hearings in the United Kingdom. There may be several reasons for a high number of ineffective hearings, such as potential gaps in the law, a need to revise certain court rules and case management to increase efficiency, resource gaps, or external influences that are difficult to control, such as the COVID-19 pandemic. Further information on the underlying reasons for these hearings would enable the development of targeted solutions.
High rates of adjournments are a major contributor to case delay and eventual case backlog. The High Court identified areas where delay and backlog occur for most case categories and some key case events, which provide valuable insights. However, detailed data to understand the frequency of interlocutory hearings and their outcomes are not regularly available. Neither are data to establish the extent and length of delay across the key events generally collected in other courts that reflect what users tend to be most impacted by, i.e. filing to substantive hearing, and hearing to judgement delivery. Establishing an agreed definition of “backlog” would make it easier to establish whether any of the identified periods are within a range of acceptable delay or have reached the “backlog status”, which would require a different response and level of attention.6Some of the reported delays may have serious consequences for the parties and for the broader justice system. The currently reported 18 months delay to get a hearing date when the accused is in custody, for example, is not just a long time for the person still considered innocent and for victims, their families, and the relevant witnesses, it also triggers significant costs for the State. It would be key to define what is an acceptable time period until a hearing is held considering the seriousness of the cases handled at the High Court. At the same time, the Court President in her submission to the Working Group also referred to a number of serious cases that were filed in the courts in 2019 and earlier (and will have been investigated for some time before). These significant delays in criminal cases negatively impact the victims, witnesses, the accused, and the state, and therefore the reasons for the delay would be important to assess. At the same time, the system capabilities need to be able to meet timeline goals.
Good practices of case data collection and reports for the courts to use and build into their management approaches are available (and to some extent published) in the United Kingdom.
The England and Wales Commercial Court report, for example, provides:
Number of paper applications (an option for parties to choose instead of an oral hearing, which speeds up the process).
Number and percentage of hearings listed that were “not effective”, i.e. hearings vacated, adjourned, or settled on the day and/or in advance of the hearing date.
The European Commission for the Efficiency of Justice (CEPEJ) has suggested data dashboards that outline core data needs for courts across all EU jurisdictions, and has recently provided an action plan for court digitalisation, including the creation of data dashboards that allow for backlog tracking.
Source: (Judiciary of England and Wales, 2021[39]), Business and Property Courts: The Commercial Court Report 2020-2021 (Including the Admiralty Court Report), https://www.judiciary.uk/wp-content/uploads/2022/02/14.50_Commercial_Court_Annual_Report_2020_21_WEB.pdf/; (Csúri, 2022[41]), CEPEJ: Action Plan on the Digitalisation of Justice, https://eucrim.eu/news/cepej-action-plan-on-the-digitalisation-of-justice/.
Responses to the backlog in Ireland, after defining “backlog” for each case category, requires more concerted responses. This may include creating teams of legal staff at the court to assist with compiling all backlogged cases, reviewing them to screen out cases that settled but were not reported as such, compiling issues lists, and frequently bringing in additional temporary judges to develop solid case management plans with the parties to resolve these cases.
The significant delays and backlog that continue to develop as a result of the COVID-19 pandemic, despite all efforts to curb them, pose challenges around the world. Technology tools developed in the United States systematically and regularly identify, track and respond to case backlog situations (National Center for State Courts, 2022[42]). Courts in Ontario, Canada created special Intensive Case Management Courts in several locations (Ontario Court of Justice, 2021[43]), and detailed reviews of the backlog situation and experiences with online hearings were conducted in the United Kingdom to develop response recommendations (Byrom, Beardon and Kendrick, 2020[44]).
Generally, all backlog reduction options outlined above and used in many courts require additional temporary staff and judicial resources, along with solid case assessments, case management techniques and data.
4.2.3. Personal injury cases
Of all cases handled at the High Court, personal injury cases by far account for the highest number of judicial hours needed to process all cases. The time study indicated that together with medical negligence cases they account for over 19% of the time judges at the High Court require. Currently, six judges are assigned to the Personal Injuries Division. Similar to other divisions, the judges are working on both personal injury cases and handling other case types.
Considering the significant impact these cases have on judicial workload overall, improving case processing would help enhance efficiency at the High Court. As the time study and additional data collection has shown, these cases can take anything from half a day to many weeks, depending on their complexity. The number of medical negligence cases, which tend to be particularly complex, are reportedly increasing. In addition, as mentioned earlier, growing numbers of cases that were envisioned to be handled by the Cervical Check Tribunal are instead being handled by the High Court. The more complex personal injury cases and all medical negligence cases tend to require expert witness assessments and submissions, which prolong the period between hearings and can delay scheduled hearings if expert submissions are not submitted in time. Difficulties with getting expert witnesses to provide opinions or be ready to testify in a timely manner is a common cause of delay in many countries. There is no information currently available to understand if this is an issue in Ireland.
The High Court reported that the use of pre-action protocols and new rules of court were proposed to manage these cases more efficiently and expeditiously. The new rules were submitted in draft form in 2010. However, to implement them, Section 32 A of the Civil Liability and Courts Act 2004, as inserted by the Legal Services Regulation Act 2015, must be commenced. This highlights a special challenge the High Court faces when implementing enhanced case management processes. Reviewing the mechanisms in place to communicate and collaborate with others responsible for ensuring the needed legislative changes are implemented, or that other options to respond are developed, could be a consideration.
On occasion, cases listed to be heard on a particular day cannot be covered as envisioned and must be postponed. A “lottery” system is applied to assign the remaining few hearing slots, which can cause delays. The High Court President suggested that the main reason for parties to personal injury cases settling their cases is due to the limited hearing times available, although it may also be for other reasons, such as the pressure of the judicial proceedings. Improvements in the efficiency of procedures, coupled with additional resources, may help avoid these situations.
The time study data indicate that more judges would be needed to handle both personal injury and medical negligence cases if no adjustments to current processes are made. It is likely that more efficient processes and better case management, supported by better technology, would reduce the need to increase the numbers of judges significantly. Notwithstanding the need to address resource issues, personal injury and medical negligence cases may lend themselves to first be the focus of new case management efforts. This would require a collaborative, joint effort by the Courts Service, High Court judges and others, including the Department of Justice, to develop better case management options, including better regulations and data. The court and Courts Service would need to be supported by appropriate resources to engage in such an effort.
4.2.4. Case management, case management data and court performance measures
The High Court continues to explore and revise its practices and procedures to create efficiencies wherever possible. This is especially the case in the Commercial Division. Established in 2004, this Division can be chosen by litigants as an expedited option for certain high-value disputes, although court fees are higher. The Commercial Division rigorously case manages all cases in its list; however, there are reports that even the processes at this special division could be delayed. Although litigants in Commercial Court proceedings have an expectation that their hearing dates are fixed, occasionally hearings must be postponed because no judge is available. A particular challenge is that many judgements are delayed for several months after the hearing. Current case management approaches may require updates to accommodate the wide range of cases handled at the court. In addition, there is room to simplify and streamline case processes that remain complex. The development of time standards and data collection efforts would enable assessments of bottlenecks and causes of delay.
As the Court President noted in her submission to the Working Group, 172 cases commenced in the Commercial Court in 2019, increasing to 185 in 2020, despite court closures due to the pandemic. These figures, together with the results of the time study, suggest the need for improvements in judicial processes and resources to be able to handle growing caseloads.
Given that litigants are willing to pay much higher fees to have their cases heard in the Commercial Division, the increasing numbers of filings are a positive sign of confidence in the court, and show that an appropriate response is needed to ensure that these demands can be accommodated efficiently and effectively. Investing in this division would tie in with the government’s aim to grow Ireland’s potential to become a hub for international litigation. After Brexit, Ireland is the only common law, English language jurisdiction in the EU, creating some extra challenges when it comes to ensuring EU recommendations, guidelines and standards leave room to acknowledge this difference, not just for the courts. At the same time, this also creates opportunities for the legal and other sectors. Other European nations have recognised the need for English language courts for commercial matters. There are English language courts focusing on commercial matters in Paris and the Netherlands, and legislation to allow the creation of such courts in Germany and Belgium has been pending for a few years (Moseley, 2018[45]; Tucker, 2017[46]).
There is significant room for more effective case management across the High Court divisions, with the legislation in force limiting the options and effectiveness of applicable case management techniques. Litigants and their representatives still largely control how cases can move through the courts’ processes. Until the courts can take greater control after a case is brought to them, effective case management will remain a challenge. In the United Kingdom, reforms of the civil procedures that modified existing dynamics were implemented following the Lord Woolf report of 1996. In Ireland, the most recent effort outlined in the Review of the Administration of Civil Justice report, the Kelly Report, aims to introduce similar approaches (Kelly, 2020[38]). While it is beyond the scope of this study to conduct an extensive legislative review, an initial reading of this report identified a range of recommendations that would help the courts manage their cases more efficiently. However, the Irish courts’ powers to control the case process is limited. Addressing this would require a co-ordinated effort along the whole justice chain, potentially involving a reform of legislation, creating awareness and incentives for upgrades in the business models of private law firms that further efficiency, and the education of potential court users and the general public of the benefits of certain court process reforms.
The development of meaningful approaches supported by those engaging with the courts is one reason behind the creation of a Commercial Court User Group in Ireland. This type of User Group also exists in the United Kingdom (Judiciary of England and Wales, 2021[39]). The Scottish Civil Justice Council provides a similar forum to address civil law matters, including civil law cases in the courts (Scottish Civil Justice Council, 2021[47]). A less involved approach with similar intention was created in 2006 by the Danish Court Administration when it established a collaborative forum where court representatives meet twice annually with representatives of professional users of the courts and public authorities who provide particulars to legal proceedings. This forum seeks to identify specific problem areas and considers proposals for improved quality, efficiency and service, with special reference to case administration time (Stockholm Institute for Scandianvian Law, 2010[48]).
Beyond a change in legislation, some court rules may also require updating, especially as they relate to interlocutory hearings. Again, without a more detailed review of all processes, it is challenging to suggest adjustments, but the relatively high numbers of interlocutory hearings that do not effectively move the case towards resolution point to a need for change. Currently, several types of pre-trial applications heard at the High Court on Mondays, such as requests for access to certain documents (discovery), are being heard remotely, and the intent is to continue this practice. It may also be feasible to test the use of a paper application as used at the Commercial Court in England and Wales, for example,7possibly as a combined online submission to be read by a judge who then either issues the decision on the same platform or via video link. Forms currently in use for streamlining and reduction could also be reviewed (Kelly, 2020, p. 136[38]). The introduction of detailed and stricter standards for the submission of documents may also be helpful, and could limit submissions to the essentials and establish format and style rules, including standards for acceptable digital documents (the latter would also be a requirement for further efforts to automate all court processes and facilitate effective e-filing and e-processes).
“Case management” is the all-encompassing term for the application of various techniques to manage cases, depending on the court and case needs. Each court assesses the best option to effectively manage different cases and will generally apply different tools across different case types and court levels. Since case management has evolved, starting in the 1970s in the United States, volumes of literature and tools have been created globally to capture experiences and help courts choose and adapt approaches to their own needs. A concise summary of key case management principles was published by the Standing International Forum of Commercial Courts in 2020 (SIFoCC, 2020[49]). A similar overview was published in Australia, where a National Court Framework was developed (Federal Courts of Australia, n.d.[50]). A more detailed overview of different case management approaches developed for different court levels was published by the Florida State Courts (OPPAGA, 2009[51]). Drawing inspiration from these practices, Ireland may wish to develop a similar overview of key case management principles and approaches that is appropriate and targeted to the Irish context.
Most court systems also require the development of several approaches and techniques tailored to different case types. Often, as appears the case in Ireland, case management is understood as a process that involves a judge (occasionally court staff) managing each case at each step of the process, regularly involving more than one intensive case management conference. Such active case management, if well designed, can be very effective, but is also resource intensive, and is generally only meaningful for more complex cases. For simpler cases, especially those handled at high-volume courts, different case management tools must be applied that are tailored for the cases’ particular characteristics. For those cases, fast-track processing with less complicated, more streamlined processes that follow a set of general timelines for all cases of this type are a better fit. Courts that handle a broad range of cases, even for case types that include a broad range of complexity, benefit especially from the development of a multi-track approach: a fast track for simple cases; a regular track, also with set timelines and other case management rules, for the bulk of cases of medium complexity and judicial time requirements; and a complex track that involves more intensive case management by a judge. These are all supported by adequate processing rules and overall time standards. In this sense, strict enforcement of the applicable rules by the judiciary would be particularly relevant to ensure that court time resources are used in the most appropriate manner, especially to avoid delaying tactics and procedural mistakes by private parties that affect overall efficiency.
The introduction of a new Order 63C in the Rules of Superior Courts, introduced in 2016 (“the case management rules”), provided for a comprehensive regime for case management iin chancery and non-jury cases. By court direction, these rules were paused pending the provision of the appropriate and necessary resources (Kelly, 2020, p. 91[38]). It may also be considered whether the case management processes envisioned in the rules were the best fit considering the mixed complexity of these cases. The time study and additional data collected by the court indicated a significant range of cases, from those resolved quickly to others that continue through several interlocutory hearings until they settle late or are resolved in a long substantive hearing. This also highlights the difficulties faced when the needed detailed case process data are not available. This does not mean that the data needed to begin developing effective case management options must be available for multiple years, as a solid sample case file review can provide much of the needed data to begin designing case management techniques to fit the case type targeted. Pilot testing the new design, measuring and analysing the results to fine tune the new approach before it is applied more broadly, and continued monitoring of results tends to lead to meaningful case management options that work over time.
The High Court President has suggested a root-to-branch review of judicial and other resources available at the court. For this, building on and implementing the suggested process changes included in the Kelly report will be crucial. In addition, especially after such changes have happened, there will likely still be need for a detailed mapping of the civil, criminal and family law processes at the High Court, as envisioned by the law and court rules. Such a detailed assessment and the process map can provide a solid understanding of bottlenecks and process inefficiencies, and their causes. It would need to be developed for the design of an effective case management system, and therefore can be designed to serve both purposes.
Equally important to developing and effectively implementing case management techniques specific to different case types is the availability of reliable case data to track how cases of different types are progressing from filing through to the delivery of judgements, as well as appeal rates and outcomes. In this regard, while this study was not focused on Courts Service operations, the results highlighted the existing limitations in justice data, limited staff to do analytical work and insufficient use of modern court management approaches. This indicates that a wider organisational review of the whole of Courts Service, including the necessary skills and structures, could be beneficial. Improvements in these areas would generate efficiencies in other areas, as well as enable automation.
What data exactly must be collected and analysed will depend on what other elements tend to influence the movement of cases and the related system needs, such as judicial and court staff time, availability of resources at the DPP or An Garda, legal aid providers, and family and other social services. Experiences in other countries have also shown that the availability of local lawyers is another element to consider when assessing various resource needs for the effective handling of cases in more rural areas. This may be more important for the District and Circuit Courts, but could also influence how well High Court cases heard outside of Dublin move to resolution. The data must align with any time and other performance standards the court sets for itself. This would facilitate targeted data collection that serves evidence-based planning and efficiency.
The IT systems currently used by the Courts Service provide some data to build upon. Looking ahead, what data the judiciary requires will need to be defined, and current and future data collection systems will need to be (re)designed accordingly. The Courts Service in turn would need to work towards ensuring that any data to be collected are clearly defined, data collection standards are established, staff are trained to properly collect data and related user manuals are available. The Courts Service would also need to have the staff and resources available to develop the needed analytical reports for the Court Presidents, the Chief Justice, individual judges, Courts Service managers, registrars and the Board of Courts Service. Such data collection efforts would help support the courts in functioning more efficiently, in line with the Courts Service mandate. In addition, other institutions may find specific parts of these datasets useful for policy making and planning, such as the Department of Justice, the DPP, An Guarda, TUSLA and many others. If full support in this field could not be established within the Courts Service, the court itself may also employ staff to support its case management functions and conduct the related data collection and analytical work.
For the High Court, steps would need to be taken towards data driven case management and developing a more comprehensive set of court performance standards. For this purpose, judges would need to define what data they need for what purposes, with sufficient time and information to do so. To ensure the court operates as efficiently as possible, it would be helpful for data to be available to not only assess trends in incoming and resolved cases by overall case types, but also by complexity, and data must be available to support effective scheduling, tracking timelines and adjournments, understanding settlement trends, and the need to track changes in resource needs. Similarly, it is recommended that the High Court develop meaningful time standards for key process steps, such as those the High Court President identified as likely locations for delays and backlog, and define backlog for different case types.
Many resources for the development of effective time standards, other performance measures and needed resources are available from organisations such as the CEPEJ (CEPEJ, 2012[33]), the National Center for State Courts (NCSC) (Duizend, Steelman and Suskin, 2011[52]; National Center for State Courts, 2017[53]), as well as courts such as those in Scotland, the Commercial Court in England and Wales (Judiciary of England and Wales, 2021, pp. 22-32[39]) and the Netherlands Commercial Court in Amsterdam (Netherlands Commercial Court, n.d.[54]). These courts already have several years of experience in working with data for effective case management and overall court performance. The High Court and other courts in Ireland can build upon this experience to develop approaches that fit their environments. More details on data-driven case and court management are provided in Chapter 6.
To ensure that High Court judges have the required capacities to develop, implement and consistently adjust any case management approaches implemented, they need case management training, as well as the time to lead the development of better case management approaches and implement and track their effect. Considering the variety of case types and broad range of complexity of cases handled at the High Court, case management requires special attention on a daily basis, especially when existing IT systems do not provide much case management support.
The main management responsibility rests with the High Court President, who also has a significant case load and belongs to several important committees. This is in line with the internationally recognised principle that it is essential for presiding judges to carry a certain workload to ensure that they continue to understand the demands of litigation (Council of Europe, 2016[55]). List judges share some of this responsibility for the management of select case types. Considering the need for greater and more systemic attention to case management, as well as defining and tracking timelines and performance measures, the introduction of specialised personnel mainly responsible for court-encompassing case management tasks (a judge or lawyer) to support case management functions could be considered. Such positions are common in courts in the United States. In Europe, the position of Vice President of the Court shares management responsibilities, but is generally found in apex courts. The Commercial Court in England and Wales has an experienced a lawyer to help judges triage applications (Judiciary of England and Wales, 2021[39]).
The need for training and the increased allocation of specialised case and court management staff also applies to other courts staff and Courts Service managers. It may be helpful to further clarify the roles and responsibilities of the judges and Courts Service Staff regarding keeping track of data, developing analytical reports and developing resulting recommendations.
The Commercial Court in England and Wales provides examples of effective case management approaches and data used to inform management and planning decisions. The court’s annual report and detailed commercial court guide are useful sources of information that may be considered in Ireland – see Box 4.11and (Judiciary of England and Wales, 2021[39]). One important feature that enables this court to develop effective case management approaches that are applied as envisioned is the Commercial Court Users Committee. The court’s ability to resolve commercial disputes in a way that serves the interests of national and international commerce depends in part upon a steady exchange of information and constructive suggestions between the court, litigants and professional advisers. There are separate user committees for the Admiralty Court and for the financial list (Judiciary of England and Wales, 2021, p. 5[39]). In Ireland there is a Commercial Court Users’ Group, and a User Group that covers all areas of the work of the High Court. There are also separate engagement forums concerning the modernisation programme. Box 4.12 illustrates recent case management enhancements at the Commercial and Admiralty Courts in England and Wales.
The Commercial Court in England and Wales and its Admiralty Court handle claims generally valued above GBP 5 million, and many cases worth considerably more, including several valued over GBP 1 billion every year. The number of complex and very high-value cases reaching the court has increased in recent years, and with it the time demands on the judges due to greater efforts to prepare, longer hearings and more time for judgement writing. Informed by regular data reports, the court continues to develop options to address new challenges, usually beginning with a pilot project to test if the envisioned response option will achieve the desired results.
Auditing of claims
During the 2020/21 court year, the court piloted auditing claims brought before it with the aim to divert select smaller and less complex claims to the London Circuit Commercial Court, Circuit Commercial Courts in a location convenient to the claim or the parties, or an appropriate County Court. From 2022, all claims issued in the Commercial Court will be audited before a Case Management Conference is scheduled to ensure that the court’s resources are focused on cases requiring its expertise, and that smaller cases can benefit from the shorter lead times in the Circuit Commercial Courts.
More effective scheduling for pre-reading and judgement writing time
Court rules ensure that judicial time spent dealing with evidence from witnesses and oral submissions in court is kept to a minimum. Nevertheless, the complex nature of commercial cases requires judges to pre-read a large amount of material from a “pre-reading list” supplied by advocates who are also responsible for providing an estimate of the required pre-reading time and of the required hearing time (Judiciary of England and Wales, 2020[56]). These estimates, combined with the court’s estimates for judgement writing time, are then built into the court’s timetable. The judges rely on realistic reading lists, accurate estimates of pre-reading time and on the parties updating the Listing Office if the estimate changes as trial approaches. The court is regularly provided with case data trends by the Courts and Tribunals Judiciary Service to identify potential bottlenecks and delay issues. In early 2020, such data indicated increasing inaccuracies in time estimates for hearings and pre-reading time. In response, the Judge in Charge, together with the Judge in Charge of the London Circuit Commercial Court, issued specific guidance to the advocates that also outlined consequences of repeat and significant inaccuracies in these estimates. Meetings with the Commercial Court Users Committee are used to explained the new guidance in detail and to stress that cases submitted with gross inaccuracies in the estimates will be taken off the hearing list, are likely to be relisted without any expedition, and the costs of the second hearing disallowed (Judiciary of England and Wales, 2020[56]).
Other approaches to improve the effectiveness of case management in the Commercial Court in England and Wales include:
Submission of a list of common ground and issues. The solicitors and counsel for each party must produce a list of the key issues in the case, specify any common ground between the parties, and any disagreements as to the relevant features of the factual matrix (HM Courts and Tribunals Service, 2022, p. 25[57]).
Case Management Conference (CMC) or Costs and Case Management Conference (CCMC). This is a very streamlined hearing to set a timetable until trial. The hearing will also consider the parties’ budgets, if applicable, the Disclosure Review Document (DRD), and, where possible, the resolution of any connected outstanding contested matters. The parties are required to co-operate. The court generally expects to be able to approve the DRD in no more than one hour as part of the hearing (HM Courts and Tribunals Service, 2022, pp. 45-46[57]).
Shorter and flexible trials. The Shorter Trials Scheme is designed for cases that can be heard in less than four court days. It includes a timetable that aims at resolution of the dispute within a year. The Flexible Trials Scheme was designed to allow parties to adapt trial procedures to their specific case. It aims to limit disclosure and to confine oral evidence at trial to the minimum necessary. It includes the option to choose solely written evidence and submissions for select steps, and thus shorten the time to a final resolution (HM Courts and Tribunals Service, 2022, p. 46[57]).
The Disclosure Pilot Scheme. This was designed in response to concerns of court users that the existing disclosure process did not sufficiently engage parties, may not use technology as efficiently as possible and can distract from the principal issues in a case.1
Less complex claims. Such claims are determined by their nature, value, complexity and the likely volume of extended disclosure. If the value is less than GBP 500 000, the claim should normally be treated as a less complex claim. The regime provides clear guidance about defining issues for disclosure (drafted at a high level of abstraction and normally no more than five in number), and provides a simplified form of the DRD, among others. Parties to every case, independent of financial value or complexity, are to consider if the case may be treated as a less complex claim.
Lead times. The court aims to keep the lead times, the time between the date a hearing is fixed and the date on which the hearing will take place, within certain targets. These lead times are regularly updated.
CE-File. Since 2017, all court documents are required to be filed electronically via the CE-File system. This system is also used extensively for applications on paper, ranging from consent orders, applications for permission to serve out of the jurisdiction, and contested applications where the parties have chosen to deal with the matter on paper. Applications made via CE-File must include all the relevant documents, and all documents must be appropriately labelled when uploaded to CE-File. Non-compliant applications will be rejected (Courts and Tribunals Judiciary, 2021[58]).
Working electronically. Generally, the court has shifted towards requiring the submission of “paperless” bundles, with limited exceptions when requested by the judge. Electronic submission is the default position in the new Commercial Court Guide. Parties are now required to file electronic bundles in accordance with the latest directions (Courts and Tribunals Judiciary, 2021[27]).
← 1. For initial results see section 10 of the Commercial Court Annual Report 2019 to 2020.
Source: (Judiciary of England and Wales, 2021[39]), Business and Property Courts: The Commercial Court Report 2020-2021 (Including the Admiralty Court Report), https://www.judiciary.uk/wp-content/uploads/2022/02/14.50_Commercial_Court_Annual_Report_2020_21_WEB.pdf; (Judiciary of England and Wales, 2020[56]), Notice from the Judges in Charge of the Commercial Court, https://www.judiciary.uk/wp-content/uploads/2020/10/Time-estimates-Notice-2020-1.pdf.
4.2.5. Hearings in provincial venues
As outlined earlier, the High Court sits at several provincial venues throughout the year. Hearings at provincial venues are important for access to justice throughout the country. The workload calculations for the High Court therefore needs to take into account the work done in Dublin together with the manpower needed to service its sittings around the country. Travel time and cost for the judges who sit in those venues must be taken into account, as well as the fact that for at least half of the legal year two judges are away from their assigned principal civil divisions in Dublin, in particular the Non-Jury/Judicial Review List and the Chancery List.
There seem to be relevant backlogs and delays at provincial venues. Table 4.2 shows the delay in obtaining a trial date for a personal injuries case when ready for hearing at venues outside of Dublin. Moving forward, new ways to enhance the efficiency of provincial court hearings could be considered to ensure effective access to justice for litigants across Ireland, while maintaining an appropriate workload for the High Court.
To understand what triggers these delays and to develop response options, the operations of the High Court in provincial locations should be reviewed closely. Delays reportedly relate to the length of time that elapses between the date a case is set down for trial and the date when it secures a hearing. Therefore, enhancements in case scheduling, notifications and other issues that may contribute to delays may be beneficial. In addition, the increased use of written procedures and online tools to process interlocutory events and more options for virtual hearings may be viable alternatives.
4.2.6. Review of Circuit Court appeals
Appeals to the High Court from the Circuit Court are determined on a full re-hearing of the case, and the appellant is not obliged to identify the grounds of appeal in the notice of appeal (Kelly, 2020, p. 81[38]). Depending on the subject matter, these appeals are generally included in the common law non-jury list, the personal insolvency list and the family list. Together they account for over 500 cases, most of which require full hearings and significant judicial time.
In line with international standards, the constitutionally guaranteed right to an appeal most often requires a justification for the appeal established by law. The unmitigated acceptance of all appeals could encourage frivolous appeals and undermine public confidence in the lower courts, while not utilising judicial resources in the most efficient manner. To better understand the impact of Circuit Court appeals, and cases stated from the District Court, collecting data on the percentage of appeals overturned, and why, could be considered.
A significant number of unjustified appeals does not mean that the appellants aim to prolong the process, as lay litigants in particular may not always be aware of appeal justification requirements or may not understand the appeals process. It is important to screen appeals early on to identify those that are not substantiated and to develop support systems, especially for those who are unrepresented. Options for screening appeals and assistance options created in other jurisdictions have already been outlined in the Court of Appeal section earlier in this Chapter and apply here as well.
4.2.7. Lay litigants and the need for more effective support structures
As mentioned earlier, the percentage of lay litigants appearing in the High Court is not available. Given that Courts Service data indicate a 30% lay litigant rate for the Court of Appeal, the percentage may be similar or higher at the High Court. Experiences in other countries have shown that the percentage of lay litigants coming to a court and the challenges they face tend to vary by case type (see Box 4.13). Building on existing structures and by engaging through the Service Access to Justice Civil Reform User Group, more effective support could be envisioned for lay litigants.
In England and Wales, data indicate that litigants in person (i.e. lay litigants) appear less often in the Commercial Court than in some other courts (Judiciary of England and Wales, 2021[39]). Nevertheless, the Commercial Court has special filing and other procedural options for such litigants, along with other assistance mechanisms, and the courts can adjust procedural requirements if appropriate:
The Commercial Court and the London Circuit Commercial Court, in conjunction with COMBAR and Advocate (an access to justice charity), facilitate access to assistance and representation free of charge when applications with a time estimate of one day or less are submitted.1
The Bar Council of England and Wales publishes an online, free of charge “Guide to Representing Yourself in Court”.
The RCJ Advice Bureau publishes a free series of “Going to Court” Guides available online through the Advice Now website.2
Court rules also specify that the court expects solicitors and counsel for other parties to do what they reasonably can to ensure that the litigant in person has a fair opportunity to prepare and bring forward their case. The court bases its rules and expectations on related guidelines published in 2015 by the Bar Council, the Law Society and the Chartered Institute of Legal Executives.3 If the claimant is a litigant in person, the Judge at the Case Management Conference will normally direct which of the parties have responsibility for the preparation and upkeep of the case management bundle.
← 1. See the Commercial Court and London Circuit Commercial Pro Bono Scheme Protocol, https://www.combar.com/wp-content/uploads/2020/07/Scheme-Protocol-July-2020-Final.pdf (last visit 30/03/2022); See Advice Now website at (last visit 30/03/2022); See “Litigants in Person: Guidelines for Lawyers”, June 2015, (last visit 30/03/2022).
← 2. See Advice Now website at www.advicenow.org.uk (last visit 30/03/2022); See “Litigants in Person: Guidelines for Lawyers”, June 2015, (last visit 30/03/2022).
← 3. See “Litigants in Person: Guidelines for Lawyers”, June 2015, Litigants-in-person-guidelines-lawyers-June-2015.pdf (last visit 30/03/2022).
Source: (Judiciary of England and Wales, 2021[39]), Business and Property Courts: The Commercial Court Report 2020-2021 (Including the Admiralty Court Report), https://www.judiciary.uk/wp-content/uploads/2022/02/14.50_Commercial_Court_Annual_Report_2020_21_WEB.pdf.
4.2.8. Staff support and alternative judicial resources
In Ireland, it may be useful for adjustments to be made to support staff resources, including lawyers to support judgement writing, secretarial staff, sufficient numbers of qualified registrars, and staff to support enhanced case management approaches and related data tracking. Embedding these investments in a longer-term strategy would ensure their sustainability and cost-effectiveness. As electronic processes and IT solutions expand, additional support to effectively use such solutions will also grow in importance. There may also be options to shift certain case events for several case types away from judges to the High Court Masters (who will then likely need to be increased in number, subject to the governance changes mentioned). The High Court President has suggested that a significant amount of the work done in the Monday motion lists could be handled by Masters. It was also pointed out that such a shift in work would require more detailed review, especially considering that the parties have a right of appeal, a Master’s decision to a High Court judge which could result in delay and extra costs instead of procedural efficiency and savings.
Any such shift in workload would need to involve a review and possible adjustment of co-ordination, direction and oversight responsibilities to ensure that established processes are streamlined and connect smoothly to High Court directions and operations. Currently, there is only one master in the High Court, a civil servant outside the managerial oversight of the President of the High Court. The effective and smooth co-ordination of operations and decisions could be arranged under the current structure if the High Court President is provided with the appropriate mandate to oversee this work. The removal of these decisions from the court without the required control mechanisms can lead to lack of litigant confidence in the master’s decisions and render such a process ineffective.
The proposed consolidated Courts Act published by the Law Reform Commission in 2010 suggested that “The Master of the High Court shall, in respect of the discharge generally of his or her functions and exercise generally of his or her powers of a judicial nature be subject to the general direction of the President of the High Court” (Law Reform Commission, 2010[60]). The enactment of this provision, or a similar provision, could potentially address the issues outlined.
Adjusting the operations and structure of the Master of the High Court to facilitate an effective shift of parts of the current workload of judges to this position appears to be a promising efficiency option. The development of a pilot project to assess the impact of moving parts of the Monday motions lists for select case types to the master would be helpful to understand what is needed in terms of procedural and structural adjustments, human resources (including administrative support, data and IT support), as well as outreach to court users to develop the needed support for such a shift.
Another option to provide needed judicial resources to address temporary shortcomings due to long-term illness, or as a result of unforeseen circumstances such as the COVID-19 pandemic, is the use of temporary judges, taking into account all due safeguards for judges’ independence. The options to bring in retired judges or judges for temporary assignments are currently unavailable in Ireland. It is relevant that new appointments to replace judges leaving the High Court (and other courts) are completed by the time the incumbent leaves to enable a seamless transition and avoid additional strain on the court. This is crucial at the High Court, as judges scheduled to retire are not assigned cases that require longer processes given that they are not allowed to deliver judgements after retirement. These overarching human resource management issues will be addressed in more detail in the Chapter 5.
Judgement writing schedules: Consider developing judgement writing schedules for different case types, including timelines and a non-binding Style Guide, and review options for staff and IT support for judgement drafting.
Case management options: Strengthen collaboration with the Courts Service to review case management options, taking into account that personal injury and medical negligence cases may lend themselves to be an initial focus of new case management efforts. Consider using a solid sample case file review as the basis for the needed data to begin designing case management techniques to fit the case type targeted.
Reducing backlogs: Develop an initial strategy for involving back-up judges and/or considering the creation of backlog teams, including legal and Courts Service staff, with a view to implementing backlog reduction strategies (e.g., compiling backlogged cases, and developing solid case management plans with the parties to resolve these cases, reviewing the operations of the High Court in provincial locations in order to identify enhancements in case scheduling, notifications and other issues, and exploring opportunities for the increased use of written procedures and online tools to process interlocutory events and more options for virtual hearings).
Data needs: Determine necessary case process data to begin the development of time standards, backlog definitions and eventually broader performance measures through a collaborative effort among the judiciary, the Department of Justice and the Courts Service. In collaboration with the Judicial Studies Director, ensure advanced case management training for judges and any case management teams and consider further clarification of the roles and responsibilities of the judges and Courts Service Staff regarding keeping track of data, developing analytical reports and developing resulting recommendations.
Court rules: In advance of legislative changes resulting from the Kelly Report, judges may want to consider prioritising the immediate development of early court rule changes and directions, especially those that could be introduced before laws are changed to streamline case flow and enhance court control, for example, options to encourage early discovery, creating adjournment rules, clearer submission requirements and timelines that can be enforced, and e-document submission rules.
Case management pilots and leadership: Continue efforts to review and develop case management advancements for different case types, ensuring that judges have the information needed and by beefing up data collection efforts by case-type. Consider the development of differentiated case management pilots can be considered, possibly starting with personal injury cases. Consider the creation of a lead case management judge position to focus on court performance.
Quasi-judicial staff: Consider reviewing the role of and reporting structures for the High Court Masters and related quasi-judicial staff, including to support more effective case management and possibly handling interlocutory hearings and other relatively simple matters (e.g., Monday motions).
Support staff: Review the availability and the needed competencies of administrative and research support staff for High Court judges, including lawyers to support judgement writing, secretarial staff, sufficient numbers of qualified registrars, and staff to support enhanced case management approaches and related data tracking, which could support sustainability and cost-effectiveness of judicial operations in the long-term.
Judicial engagement: As the Courts Service’s IT division continues the development of more advanced case management systems, ensure that judges remain engaged to provide their insights on the detailed process mapping.
Lay litigants: Building on existing structures and by engaging through the Access to Justice Civil Reform User Group, consider providing more effective support for lay litigants, including special filing and other procedural options.
The Circuit Courts face a range of challenges beyond the limited judicial resources that tend to add to its workload and delay the timely resolution of cases. As mentioned, there is scope to update and streamline the current processes by reviewing the multiplicity of often lengthy and complex paper forms8 that litigants and the court need to complete, submit and distribute. Local variations in operations by the County Registrar and Courts Service staff also impact judicial efficiency for all case types, depending on the cooperation mechanisms existing between local Court Registrars and assigned judges.
The below section addresses key elements identified as contributing to longer processes and increasing the judges’ workload at the Circuit Courts, and potential options to address them.
4.3.1. Addressing case backlog and adjournments at the Circuit Courts
The International Covenant on Civil and Political Rights (Article 14) and various other regional human rights treaties, including the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 6), the American Convention on Human Rights (Article 8), and the African Charter on Human and Peoples’ Rights (Article 7), require that cases are disposed by courts without undue delay and within a reasonable time.
Excessive backlog of cases can thus be seen as undermining these rights, which can also affect litigants’ businesses’ and public trust in the courts. Backlog can also place an additional burden on judges and court staff as it can trigger or result in multiple changes in timelines, and cause multiple notifications, or even hearings. This could generate duplication of tasks and additional work, possibly resulting in long delayed cases.9
Backlogs in criminal cases seem to be growing due to the pandemic despite joint efforts to reduce the flow into the system. Reports from Ireland, the United Kingdom and the United States indicate, for example, efforts by law enforcement to postpone arrests and citations if possible, prosecutors limiting filing charges for low-level offenses, a reduction in the issuance of warrants or the suspension of existing warrants, increases in release without bail to reduce pre-trial detention, and settlements of pending cases through plea bargaining (Jackson et al., 2021[61]; Desroches, 2020[62]). Equally important is the need to provide special victim support during backlog situations to keep victims informed and engaged to ensure that they are not discouraged to appear in court, virtually or otherwise, when the time comes (Victims Commissioner, 2021[63]).
In Ireland, there appears to be a need to strengthen case and process data to assess bottlenecks, inefficiencies and their causes in order to support creating better processes that can help reduce the burden on judges and court personnel, and to better serve the Irish people, especially the most vulnerable. Access to meaningful case processing and management information can help alert the Court President and individual judges to potential delays and processing issues. Similarly, County Registrars or court registrars could use this information to screen submissions for adjournment requests and alert the judges. Such a co-ordinated, data informed approach is usually applied in jurisdictions where case management is well established and understood, and considered a collective responsibility for moving cases along.
This challenge was highlighted over a decade ago in Ireland, when the Reform and Development Directorate of the Courts Service supported the development of court rules to reduce delay for the Circuit Courts, specifically reducing the many interlocutory applications. A revision of first instance court rules was introduced in 2014, which, among others, shifted some pre-hearing actions to the Country Registrar (Kelly, 2020, p. 45[38]). Nevertheless, Circuit Courts are still receiving repeated interlocutory applications, sometimes stretching matters over years, particularly in family law cases. This may not only be due to process inefficiencies, but also other reasons, some outside the control of the courts. If family support agencies are overwhelmed and experts to provide needed assessments are scarce, matters will be adjourned more frequently. When access to mediation services and counselling is limited, the courts become the one place people rely on, especially those with limited means who mostly appear in court without representation.
To address backlogs more effectively (and more holistically), the Circuit Courts would need accurate case processing data that show per case type how many, and ideally which cases, are waiting to be heard by the court, and since when. It would also be important for courts to know “the age of pending” caseloads to understand how many cases are backlogged and for how long. Without better data to track the number of adjournments and why they occur in what type of cases, developing reasonable adjournment rules can be a challenge.
Generally, case backlog refers to the proportion of cases in a court’s inventory of pending cases that have exceeded established timeframes or time standards (International Consortium for Court Excellence, 2020[64]). What that exactly means would need to be defined by each court for different case types. Not every case pending at the end of the year has been waiting to be heard for a long time, and every case requires a reasonable time to get ready before it can be heard by the court. The definition of this “reasonable time from filing to the actual hearing" (not just listing to be heard) depends on the case type, possibly the additional complexity of select cases, reasonable preparation time for both parties, procedural requirements, availability of staff and judicial resources at the court and, to some extent, the local legal environment. Currently, there are few time standards for case processing in Ireland beyond the limited time frames prescribed in the law.10
As different case types require a range of times to disposition, different courts must apply their own definitions of backlog. For example, Federal Immigration Courts in the United States define backlog for immigration cases as “cases pending from previous years that remain open at the start of a new fiscal year” (Governmental Accountability Office, 2017[65]). Local courts in New South Wales, Australia have set time standards for civil and criminal cases, aiming to complete 90% of civil cases in 9 months and 100% in 12 months (Local Court New South Wales, n.d.[66]). The State Courts in Massachusetts regularly update and publish very detailed time standards for all court levels on their website. In Massachusetts, the Probate and Family Courts have a limited jurisdiction otherwise comparable to the Circuit Courts. All probate, equity and domestic relations (including paternity) cases (except joint petitions for divorce, joint petitions for modification of child support and complaints for contempt) are assigned to be processed on three different tracks, based on their complexity. The time standards for track one aim for case completion within 3-6 months, track 2 is within 8 months and track 3 is within 14 months (Commonwealth of Massachusetts, 2006[67]). A description of the process other courts have used to establish such time standards and backlog definitions is included in the latest edition of the Global Measures for Court Excellence (International Consortium for Court Excellence, 2020[68]).
Maryland in the United States can provide a model to consider both for developing meaningful backlog definitions and adjournment rules, and for creating effective processes for family cases. The Baltimore County Circuit Courts have a well-designed family court system that is widely recognised as a good model (see Box 4.15). The courts serve the suburbs of Baltimore city with a population of over 800 000, comparable to counties surrounding Dublin. The court has a long history of good case management, is well resourced and is effectively supported by the Administrative Office of the Courts. Importantly the court can also draw upon a range of good family support services.
The Family Differentiated Case Management (DCM) Plan in the Circuit Court of Baltimore County is consistent with case time standards adopted by the court’s Judicial Council and constitutional requirements. The goal of this DCM plan is to ensure that 98% of family cases, except for a group of contested divorce cases, are concluded within 12 months (365 days) of the filing date, and that 98% of contested divorce cases are concluded within 24 months (730 days) of the filing date. A concluded disposition can be by judgement or dismissal. For simpler cases, the warranted time frame may be shorter than 12 months.
Source: Circuit Court of Baltimore County, Maryland https://mdcourts.gov/html/courtoperations/pdf/dcmfamilybaltimorecounty.pdf
The OECD team shared detailed case management information from the Maryland Circuit Courts with Irish Circuit judges and a member of Courts Service’s Family Law Reform Program group. The judges considered if and how this approach could be implemented in the Irish Circuit Courts. Their initial reflections are shown in Box 4.16 and highlight options that could be tried at the planned pilot court in Limerick.
Improvements to case progression approaches:
According to the judiciary, for a new case management approach for family cases to be effective it would benefit from being led by judges to ensure options to sanction failure to engage. An expansion of the current case progression approach is not necessarily viewed as effective for more complex and contested cases.
Case progression conducted by the Irish County Registrars is reportedly efficient at identifying family cases similar to those assigned to track 1 cases in Baltimore. This is especially the case if they reach agreement before the “defence” or “answer” is filed (these were categorised in the Irish time study as Uncontested Status Cases). Once a defence is filed, all cases are treated as medium conflict in Irish Circuit Courts (track 2 in Baltimore).
There appears to be room to better identify high conflict cases in Ireland (track 3 cases in Baltimore). Recommended international good practice is that the most contested cases are identified early and tightly case managed by the assigned judge (O’Mahony et al., 2016[69]). Involving judges in the early stages of these cases may help address concerns that many high conflict cases seem to be in case progression lists for lengthy periods. This may add to delay, expense for the parties and additional emotional damage to children. At the same time, implementing tight control of high conflict cases in Ireland would require efficient procedures, tools and sufficient staff support. Assigning such cases to unassigned judges may be challenging unless virtual hearing capacities exist.
Settlements:
While judges can encourage settlements where possible in the Circuit Courts, there is currently no court involvement in settlement. There is no equivalent for the Settlement Conference used in Baltimore, carried out by a magistrate judge (the equivalent to a District Judge in Ireland). This tool may be considered as part of a well-integrated case management approach.
Family support programmes:
In Ireland, there is access to a free Family Mediation Service, which is co-located in some court houses, but independent. Further awareness in the judiciary about this service may enable further use by family dispute parties.
At present, social, psychological and child welfare support needed is privately sourced and paid for by the parties in Ireland. Drawing inspiration from the Baltimore system, social worker and other professional support in the courts could enable the screening of cases and identification of appropriate services for families, insofar as possible. Options to connect courts to offers of parenting courses could be explored. In the United States, local universities are often willing to conduct such assessments, and some may even have their own offers of parenting classes.
A court-run access supervision service, as available in Baltimore, could be effective, although it would require significant resources. There is currently one private access supervision service in Ireland, which has a good reputation but is reported to be expensive.
Good causes for postponement:
The list of the Postponement Good Cause Requirements used in Maryland could be considered in Ireland. Currently, individual judges use similar criteria and find it effective, but this is not yet a shared and published set of requirements. A challenge to be considered is that where is good cause for postponement, the case may be moved to the end of the list, which could mean an 18-month delay or more.
Source: (O’Mahony et al., 2016[69]), Child Care Proceedings in Non-Specialist Courts: The Experience in Ireland, https://doi.org/10.1093/lawfam/ebw001.
In early 2022, the COVID-19 pandemic continued to lead to some delays and backlog in Ireland. Jury trials, for example, temporarily stopped for the Circuit Courts in January 2022. Criminal trial dates are currently generally set for 2024. There appear to be insufficient courtrooms to hold jury trials under regular conditions, with health and safety measures requiring social distancing reducing the number of usable court rooms. There also seem to be an insufficient number of registrars to support hearings, which can have an impact on the operations of courts and prosecutors.
Rising backlog is a challenge for most case types, but can have particularly serious implications for criminal cases. In this context, several countries (Canada, the United Kingdom and the United States) have introduced significant additional efforts to more holistically address the urgent backlog situation in criminal case processing. These initiatives focus both on increasing prosecutorial, judicial and court staff resources (including through temporary staffing options), and on increasing victim and witness services, as well as the availability of alternative sentencing options, such as restorative and community justice alternatives (Government of Ontario, 2021[70]; National Audit Office, 2021[71]).
How best to respond to case backlog depends on the case types involved and other issues, such as available alternative processes and resources. Again, access to reliable data to project backlog development and the impact of different solutions are needed.
As an example, in July 2020, the Lord Chancellor in England and Wales announced the creation of 10 Nightingale Courts to tackle the impact of coronavirus on the justice system (UK Government, 2020[72]). Their role was to hear civil and family cases, tribunal work, and non-custodial criminal cases. The aim was to provide more room in existing court buildings for hearings where cells and secure dock facilities are needed, including jury trials where the defendant is in custody. To accommodate these temporary courts, sports arenas, hotels and conference centres were rapidly transformed.
To ensure that these additional courts could hold the envisioned number of additional hearings, the Courts Service of the United Kingdom (HMCTS) hired 870 additional court staff, including 121 part-time and 53 circuit judges by 2021 (National Audit Office, 2021, p. 41[71]).Up to 72 temporary courts were created at the height of the pandemic, eventually triggering push back after a National Audit Office review indicated the significantly higher costs of running hearings at these alternative court venues. After a while, the extended hearing hours established at these extra courts also triggered significant resistance, especially from solicitors and barristers. In early 2022, some 30 Nightingale courts were expected to continue to address the continued high backlog, especially in criminal cases (UK Government, 2022[73]) (National Audit Office, 2021, pp. 8, 33[71]).
In 2021, the Scottish Courts and Tribunals Service developed and published the document, COVID-19 Modelling High Court Jury Trials (Scottish Courts and Tribunals Service, 2021[74]). This modelling approach looked at six different scenarios to determine their potential impact on the courts’ ability to hold timely jury trials:
1. Use of multiple courtrooms to accommodate juries under physically distancing rules.
2. Creation of smaller juries, reducing the number of jurors from 15 to 7, maintaining physical distancing and reducing the accommodation requirements from three court rooms to two.
4. Trial Without Jury but with a sitting with any combination of two sheriffs, two Justices of the Peace and two or more professional lay jurors on the bench.
5. Introduction of remote jury centres, where the jury is in an external non-court facility but linked and participating by live video and audio.
6. The “Remote Jury Centres Plus” model, with jury arrangements external and using additional trial court rooms in other sheriff courts.
Such modelling results would indicate impact on the courts, resource requirements, time expected to be required to return to pre-COVID hearing levels and when such model could begin to be implemented. While not necessarily taking into account the same variables and adapting it to the local Irish context, this evidence-based approach to forward planning of judicial resources may be relevant in Ireland.
With a similar aim, the US-based National Center for State Courts recently announced the development of a new automated tool that would assist courts in developing data models to understand the impact and resource needs of different backlog reduction options for courts in general. This tool is being designed to model different options and to assist the courts in thinking through the process of developing these options (Box 4.17).
The National Center for State Courts (NCSC) is in the process of launching a tool to help courts identify, measure and reduce case backlogs. This tool will help courts of all types identify the number and types of pending cases, while also projecting potential backlogs trends with and without interventions. This backlog reduction simulator helps courts explore the potential benefits of different interventions using strong data visualisation capabilities so that courts can effectively share the information with partners and funding bodies. To help quantify the future caseload impact of potential backlog reduction interventions, the simulator creates projections based on the following data:
Other factors such as estimated clearance rates, time standards and the number of cases disposed of in the last year may also be considered. The simulator results can help courts identify trouble spots and provide a starting point for troubleshooting. Interventions may range from additional bench time to hearing notice reminders, depending on where the backlog is occurring.
Source: (National Center for State Courts, 2022[42]), Case Management Elevated: Backlog Simulator Tool, https://www.ncsc.org/__data/assets/pdf_file/0027/71856/CTC2021-Backlog.pdf.
Multiple adjournments of hearings may be a significant contributor to case delay and backlog in the Circuit Courts and at other court levels in Ireland. Generally, making adjournment orders is an integral part of case management and necessary to ensure that parties have fair and equal access to justice. Procedural codes and court rules for granting adjournments therefore need to be developed with a clear understanding of what timelines are meaningful for each case type and action, and how to enforce them for all parties. Such rules need to clearly state when and why adjournments can be granted, and how often. Justified requests for adjournments, such as sickness, require a substantiated amount of time to gather evidence and are valid reasons that legislation and rules can provide for (Royal Commission into Family Violence, 2016[75]). Adjournments may also be ordered to synchronise a civil matter with an associated criminal matter, to clarify child and parenting arrangements, or to provide more information about the matter before the court (Gelb, 2015[76]).
However, there are also cases where a party does not (or no longer) have a legitimate reason for seeking to delay proceedings, as well as cases where adjournments are made because the court is not ready. To avoid these types of delays, the court would need to have a good system in place to track granted adjournments and their reasoning for the entire process, not just when the case comes to the judge. Furthermore, a system would need to be in place to remind parties, judges and others of deadlines, and to hold them accountable for delays without justification.
A study in Scotland to better understand the pattern of adjournments in lower-level courts highlighted the importance of tracking frequency and adjournment reasons to better manage the entire case process (Leverick and Duff, 2001[77]). An interesting example of such data tracking is provided by the Scottish Courts and Tribunals Service (SCTS), which publishes easy to read quarterly reports on case numbers and processes, including adjournments for all court levels (Scottish Courts and Tribunals Service, n.d.[78]).
Since the start of the pandemic, it has been reported that adjournments have significantly increased globally, which could be a result of both difficulties to hold hearings, individuals getting sick or being quarantined, and possibly current directions that relax adjournment rules.
Adjournment rules exist in Ireland, but interviewees indicated that they often have limited detail and may not always be applied by judges. Without sufficient data and no system to track adjournment requests and orders by type and per case, it can be difficult for judges to check if adjournments have been granted before and for which reasons. It can also be difficult to encourage greater adherence to procedural rules. In 2013, a call was made by the Expert Group on Art. 13 of the EU Convention on Human Rights to create more effective rules that limit the number of adjournments in Irish courts. The 2020 Review of the Administration of Civil Justice also suggested that adjusting rules and developing a tracking system would be in the interest of justice. It was suggested that this tracking system should require judges (and/or registrars) to review the reasons for adjournment, and not grant them unless there are sufficient reasons (Kelly, 2020, p. 42[38]).
Interviewees also reported that there is a limited threat of dismissal of cases if information is not provided in time, for example, as parties can re-issue cases without effective limits.
Given that most preliminary case management decisions at the Circuit Court level are made by the independent County Registrar who, among others, holds case progression hearings, they also have the power to grant adjournments of case progression hearings that should not last longer than 28 days (Kelly, 2020, p. 104[38]). As mentioned, data to track adjournments that occur before a case comes to a judge are not collected. With the County Registrar not part of the Courts Service, nor the judiciary, proper information tracking and co-ordination could be a challenge as the related accountability structures are missing. Investing in a well-designed automated system that encompasses the entire process could help resolve part of this issue. In the short term, changes to forms that require these entries as part of the case file for registrars’ and judges’ access could be introduced.
At the same time and as mentioned elsewhere, such efforts can be supported by the use of digital tools to enhance efficiency of procedures. At the Circuit Courts, the online licensing system piloted during 2019 was ready to be scaled up and was fully operational in mid-2020. This enabled law firms to lodge, pay and track licensing applications without having to go to court. As a result, from July and October 2020, close to 44% of licensing applications were received online (Courts Service, n.d.[79]), presumably implying less intensive use of judicial resources, although further data would be needed to draw conclusions.
4.3.2. Other case management and alternative settlement options
The case management processes conducted by the County Registrar were reported as another important area for potential efficiency options. County Registrars are independent office holders and not answerable to the judiciary, the Courts Service or each other. They control the workflow and fix the hearing lists, and judges reported experiencing very different operations across locations. While some have experience in specific areas of law (i.e. family law) and thus can better assist with monitoring workflow and court procedures, others may be less engaged, which can lead to differences in how well cases are prepared. Similarly, while Court Registrars in some locations co-ordinate well with the judiciary, in others there is scope to improve co-ordination. Efficient list management by Country Registrars can enable a judge to devote a maximum amount of time to hearing and determining cases, which leads to faster disposals and better access to and quality of justice for litigants. Initial case management actions conducted by County Registrar are also opportunities for alternative settlement options, except mediation, to be explored first. 11. Sufficient data are not currently available to fully understand if and how often mediation is offered and applied in different case types, or at what point in the process.
In Ireland, mediation and the use of other settlement options in the commercial sector is high and growing (Taddia, 2021[80]). However, a 2018 review of mediation in divorce cases, conducted after changes to the law were made, indicated a generally low uptake of mediation, partially due to the lack of access to mediation services (McGowan, 2018[81]) (Legal Aid Board, 2021[82]).
To ensure that litigants are offered early opportunities to choose a non-litigation route, it would be important for those responsible for facilitating this decision to have the training, time and standing to be accepted by both parties. Information about the needed time and capacities of County Registrars, court registrars and judges to deliver other settlement options is not available in Ireland. Particularly where public funding is scarce, commercially available options are often costly, and courts should find alternatives. What is developed depends on what is needed most to divert cases from appearing on judges’ hearing lists, and what outside resources may be built upon. Legislative developments may also be required to ensure that judicial diversion to mediation is a legal option and that judges have the authority to direct parties to such solutions. One such option has been developed in two counties in Virginia, United States. The Neutral Case Evaluation Program is primarily a targeted case management approach towards settlement options, but it also directs actions to reduce hearing time if a case continues to a hearing despite all efforts (see Box 4.18). In Ireland, however, civil legal aid is not available in the majority of cases, including for ADR. One possible approach would be for judges to direct parties to a negotiation between representatives ahead of the trial, without the need for a third person’s involvement.
Concerning criminal cases, procedural reforms focusing on early disclosure and early plea enters may be beneficial for more efficient processing. Useful guidance may be drawn from the lessons learnt of the United States’ Effective Criminal Case Management project, a national initiative designed to discover and document effective practices that drive high performance in handling felony and misdemeanour cases in the US state courts. The project concluded in 2020 and considered a very large dataset of nearly 1.2 million cases from over 130 state courts in 21 states (NCSC, 2020a[83]).
To facilitate settlement in cases seeking monetary damages, the Circuit Courts of Fairfax and Fauquier counties in the State of Virginia have established Neutral Case Evaluation (NCE) Programs. These programmes involve judges and experienced pro-bono senior-level attorneys acting as neutral case evaluators and meeting with parties and their counsels in settlement conferences to provide an honest evaluation of the case potential and correct any misconceptions parties may have about the value of the case. The programmes focus on case categories such as personal injury, contract cases with liquidated damages, and medical and legal malpractice. Formal rules of evidence do not bind conferences, their conduction is left to the evaluator's discretion, and they usually take place four weeks before trial, with counsels required to go in with full settlement authority. Within conferences, evaluators may give an estimate of jury awards, assess oral presentations by self-represented parties or counsels, explore areas of agreement, develop discovery plans to expedite settlement discussion, and determine follow-up measures that could contribute to case development. Almost ten years after its inception, only 8-15% of over 1 000 cases referred to NCE conferences have ended in a trial.
Source: (Virginia’s Judicial System, n.d.[84]), Local ADR Programs, https://www.vacourts.gov/courtadmin/aoc/djs/programs/drs/local_adr_prgms.html.
An effective system to notify parties of hearings dates and remind them of document submission deadlines and any changes to such dates is essential to ensure that timelines are adhered to and hearings can proceed. This has grown in importance since the pandemic, with increasing uncertainties and greater frequency of shifts in deadlines and hearing dates. The current notification system is largely paper-based and does not include an automated appointment or reminder system for parties. The ability to contact parties is reported to be challenging, particularly because the current forms to collect necessary contact information do not capture cell phone numbers and email addresses. Even when this information is collected, it is written on a separate note, which may be misplaced. Strengthening the notification system and amending the information forms could be a useful consideration.
There is also scope to strengthen effective case management approaches that link the entire process. Interviewees supported a widely held view, also stated in the 2020 Kelly review, that across all courts, with varying degrees by case type, court level, location, judge, Country Registrar, County Registrar and court registrar, there is a “leisurely approach to court management” (Kelly, 2020, p. 111[38]). Reportedly, there is a need to strengthen a general level of understanding of what case management means among registrars, Courts Service staff and judges. It was also noted that some judges may resist seeing case management expanded, which could be overcome once they have been exposed to good case management examples that match their jurisdiction and courts.
4.3.3. Enhanced case management for family law cases
Considering that Circuit Court judges spend most of their time dealing with family law cases, the ineffective processing of these cases has a significant impact on their workload. During the pandemic, virtual hearings were not used in contested family law cases, except occasionally to hear witnesses in locations when possible. As a result, backlog and delay increased during the pandemic. Without clear backlog data it is challenging to quantify the extent of the problem, despite it being recognised for some time. For example, a 2014 study of separation and divorce cases found that 18% of the contested divorce and separation cases were filed three or four years before the case was heard in court (O’Shea, 2014[85]).
More recently, there appears to be some progress made in relation to backlog. For example, on 28 January 2022 the OECD team conducted a sample review of all family law cases listed for hearings to gain a better overview of the current situation. This included all family law cases listed on the Courts Service website for February 2022, across all Districts Courts.12 The review showed that except for two daily lists, all lists included cases originally filed before 2020, with some going back to 2017 or 2015, which shows progress compared to 2014. This is a better result than the 2014 study, in which 10-58% of separation and divorce cases were six years or older (O’Shea, 2014, p. 10[85]), although further improvements could be made.
The combined impact of inefficient, delayed processes and limited judicial resources on child abuse and neglect cases was highlighted in a 2005 study conducted in the United States. The study showed the following main impacts:
Increased time between filing and scheduling contested hearings due to decreased judicial time for hearings.
Delayed contested hearings due to insufficient time to list hearings.
Insufficient time during hearings to focus on the safety, permanency, health and well-being needs of the individual child.
Lack of time to adequately prepare for and conduct hearings, which may result in more errors and impact safety and timely permanency for children.
Inadequate time for off-the-bench judicial activities resulting in a lack of necessary collaboration with child welfare and other agencies and service providers.
Source: (Flango, Gatowski and Harding, 2004[86]), Building a Better Court: Measuring and Improving Court Performance and Judicial Workload in Child Abuse and Neglect Cases, https://www.ojp.gov/ncjrs/virtual-library/abstracts/building-better-court-measuring-and-improving-court-performance-and.
Difficulties in addressing systemic inefficiency considerations for family law processes appear to have persisted for some time in Ireland. A 1994 Law Reform Committee Report on Family Courts (Law Reform Commission, 1994[87]) focused particularly on:
The organisation of the family law business of the courts (including the issue of a possible unified jurisdiction) and court accommodation.
The selection and training of personnel, including judges and legal practitioners.
Support services and the link between judicial and other mechanisms for resolving family disputes.
The desirability and feasibility of a specialised family court.
Some changes have been implemented since then, but many of the recommendations remain to be addressed. There also appears to be a need to further monitor progress made on the basis of the Kelly Report, which, for example, indicated that more solid case management approaches were applied by the Courts Service in family law cases, but not in others (Kelly, 2020, p. 105[38]). The Family Law Reform Program launched by Courts Service in 2021 identified a list of issues to address, including the adjournment of 70% of cases in some courts, a need for greater clarity of responsibilities for administration, significant disparity of listing and scheduling practices across different venues, and needed improvements to notification systems (Courts Service, 2021[88]).13
As mentioned, there appears to be some overlap of jurisdiction between court levels. Reportedly, this appears to be a particular issue in family law cases, where jurisdiction is concurrent and overlapping between the High Court, Circuit Court and District Court, and where a number of different proceedings can be initiated arising out of the same events. In these situations, the applicant chooses the court in which proceedings are commenced, with the result that the same family law case could have proceedings in two District Courts, two Circuit Courts and the High Court at the same time. These trends may not be detected by the courts as there is no connected case management system. Data on the frequency of these cases to quantify this observation would enable an assessment of whether any changes are needed and if legislative action is required. It would be useful to consider this matter in detail to ensure that parties follow new rules or approaches to facilitate dispute resolution and case management. This might be particularly relevant for high-conflict family matters. These issues are covered by the draft Family Courts Bill, which will aim to address these challenges with emphasis on resolving the matter of jurisdiction overlap.
Limited mediation services are available for family cases. The Legal Aid Board currently provides court-based Family Mediation offices in Dolphin House Dublin, Limerick, Letterkenny, Nenagh, Cork, Carlow, Ennis, Tralee and Mullingar, and non-court-based family mediation is offered in some other city locations and counties. A 2 February 2022 website check of available current waiting times for these services indicated a range from two weeks in Ennis to 26 weeks in Mayo, with an average of 12.8 weeks (although waiting times were not indicated for some locations).14 Building on existing practices, the Department of Justice in collaboration with other entities is leading on drafting a strategy in the context of family legislative reforms which will include actions regarding further use of ADR in family cases.
4.3.4. Support for lay litigants
Providing more effective support structures for lay litigants can be especially important at the two lower court levels. While no data are available, the number of lay litigants is reported to be high and rising in Ireland. The 2014 O’Shea study about separation and divorce cases in the Circuit Courts identified that lay litigants represented 22% of cases at that time (O’Shea, 2014[85]). In California, the caseload of most judges now consists primarily of cases in which at least one party is self-represented (IAALS, 2019[89]). The same has been observed over the past ten years in court systems across many countries, especially common law countries, where the role of the judge differs significantly from that of a judge in a civil law country (which is also one for the reasons the number of judges in civil law countries is generally higher than in common law countries) (Legal Aid Board, 2021[82]).15 Self-represented litigants often have difficulty preparing complete pleadings, meeting procedural requirements and clearly articulating their cases to the judge (or County Registrar). This shift in court parties offers both opportunities and challenges for judges, highlighting the crucial role they play in making sure that those self-represented obtain access to justice. One initial step has been the establishment of the Access to Justice Civil Reform User Group, as mentioned, to engage with lay litigants and provide them with useful information.
Most support options available to lay litigants in other countries are in the form of detailed and easy to understand web-based information, forms, help options and online dispute resolution (ODR) options. Ireland is currently taking steps in this direction, as highlighted in the Court of Appeal section (Section 8.1), which also apply to the lower courts. These tools may also be developed for victims and witnesses in the context of criminal trials, who would also benefit from clear and accessible guidelines to participate in legal proceedings. The Scottish Court of Session has created a guide for lay litigants on basic information about the courts and what to expect, how to file or oppose motions, relevant offices, fees, contact information and hours (Scottish Court of Session, 2017[90]). Some European countries, such as the Netherlands, have put in place the provision of legal aid in civil matters, leading to a reduced number of self-representing litigants. Nevertheless, options for assistance to reduce the significant cost to the state and to ensure that litigants can access the courts when needed are available. The Dutch legal aid system encompasses three tiers for providing legal aid that combines a range of public and private sources of assistance (see Box 4.20).
Established under the competence of the Ministry of Justice and Security, the independent Legal Aid Board (Raad voor Rechtsbijstand, LAB) is entrusted with the administration, supervision, expenditure and implementation of the Legal Aid System in the Netherlands. This includes matching the supply of legal experts with the demand for legal aid, and the supervision and quality control of services provided. A three-tier system has been developed to provide different levels of support needed, with the aim of being cost-effective and involving private sources when appropriate.
Tier 1: Legal aid online self-help, information and support available is on the Rechtwijzer website (Rechtwijzer means Roadmap to Justice, www.rechtwijzer.nl), and on the website of the Legal Services Counter. Rechtwijzer offers interactive “decision trees” that help people assess their situation. It also provides easy-to-understand information and guidance on possible solutions for the most common legal problems. It combines publicly run guided pathways for common legal problems with online products and services from private service providers. In 2020, Rechtwijzer was supplemented with Rechtwijzer EHBO (“first aid for solutions”), aimed at the early identification of multiple legal problems.
Tier 2: Legal Services Counters (LSCs) act as the “front office” (primary help). Financed by the Ministry of Justice and Security, LSCs run 30 offices and 13 service points around the country. These offices share a website and call centre. Legal matters are clarified to clients and information and advice is given. Clients may be referred to a private lawyer or mediator, who act as the secondary tier of legal aid. Clients may also apply for help from a subsidised lawyer or mediator directly. If necessary, clients can also be referred to other professionals or support agencies, such as legal advisors or Consumer and Rent Tribunals.
Tier 3: Private lawyers and mediators provide legal aid in more complicated or time-consuming matters (secondary help) in the form of certificates. A lawyer (or mediator) submits an application to the LAB on behalf of the client. If legal aid is granted, a certificate is issued that allows the lawyer to deal with the case. Lawyers and mediators are paid by the LAB to provide their services to clients of limited means. Generally, they are paid a fixed fee according to the type of case (with fixed surcharges if applicable), although exceptions can be made for more time-consuming cases.
Source: (Netherlands Legal Aid Board, 2021[91]), Legal Aid in the Netherlands, https://www.rvr.org/publish/pages/4883/brochure_legal_aid_in_the_netherlands_june_2021.pdf.
Increasing offers for remote hearings, especially in the more outlying provinces, could be useful to reduce the time, effort and cost involved with court appearances for lay litigants in Ireland. There are benefits and drawbacks to remote hearings for lay litigants that must be considered. The pandemic has advanced the use of remote hearings in Ireland, where the courts can also draw on years of studies conducted in the United States and other countries to assess the impact of this option on different case outcomes and litigants. In 2017, the US-based Self-Represented Litigation Network published a detailed study, Serving Self-Represented Litigants (‘SRL’) Remotely – A Resource Guide (SRLN, 2017[92]). The report describes how eight US state-level jurisdictions use remote service delivery technologies to help self-represented litigants, allowing them to access information, forms and other assistance without having to travel to a courthouse. The data collected for that publication showed that the provision of services remotely was of benefit to both the court and the self-represented litigant. With even more advanced technology available today, and more people exposed to remote conversations and services, remote hearings may provide a viable option to better serve lay litigants in Ireland.
In Ireland, there is an option to use a “McKenzie friend”, which is a lay person who can help with preparing forms and accompany the litigant in the court room to take notes, but can not to speak for them in court. Initially established in the United Kingdom in the 1970s, many common law countries now use this option, with varying rules. A 2017 article published in the Irish Judicial Studies Journey indicated that requests by lay litigants to be accompanied by a McKenzie friend had increased (Baker, 2017[93]). At the same time, consultations and studies undertaken in Canada, New Zealand and the United Kingdom, among others, highlighted concerns around the use of McKenzie friends, including incorrect advice, hidden self-interests, and lack of quality and accountability measures (Lord Chief Justice of England and Wales, 2016[94]; Law Commission of New Zealand, 2012[95]; NSRLP, 2020[96]). These reports indicate that a better option is access to pro-bono attorneys or support from law school legal aid programmes, such as in the United States.
With growing numbers of lay litigants, judges in many countries may need to take a more active role in the case if one or both parties are self-represented. Until recently, there has been limited guidance for judges on how to meet the challenges of ensuring access to justice for all litigants while running an efficient calendar. Assisting litigants presenting their cases themselves, while remaining neutral, may require targeted approaches (Carpenter, 2017[97]).
Courts in the United States have recognised that judges could benefit from more detailed guidance, information and training to be able to better respond to lay litigants appearing in front of them. In some US states, the courts have provided more detailed directions, especially for trial court judges, and California , have gone further and developed a complete bench book for judges on the topic, as highlighted in Box 4.21 (Judicial Council of California, 2019[98]). The US-based Self-Represented Litigation Network, together with the National Judicial College, National Council of Juvenile and Family Court Judges (NCJFCJ), NCSC and individual state judicial education programmes, offer judicial training curricula on presiding over cases involving self-represented litigants, including video examples of effective judicial practices, and have provided a detailed guide for judges (IAALS, 2019[89]). This could be considered for adaptation by the Irish Judicial Council and the Judicial Training Institute.
In 2019, the California Judicial Council developed a benchbook for judges to address many of the questions and issues judges face with when dealing with lay litigants. The main issues the benchbook focuses on are:
Who are the lay litigants coming to court and what are the main issues they face?
Expanding access to the court without compromising neutrality.
The law applicable to a judge’s duties in dealing with lay litigants.
Source: (Judicial Council of California, 2019[98]), Handling Cases Involving Self-Represented Litigants: A Benchguide for Judicial Officers, https://www.courts.ca.gov/documents/benchguide_self_rep_litigants.pdf; (IAALS, 2019[89]), Ensuring the right to be heard: Guidance for trial judges in cases involving self-represented litigants, https://iaals.du.edu/sites/default/files/documents/publications/ensuring_the_right_to_be_heard_guidance_for_trial_judges.pdf.
Appeals against District Court decisions can be a particular challenge. It appears that when lay litigants are involved, appeals cases are prone to adjournments as they may not be ready when listed, a lawyer may not have been secured, or the date was not confirmed with all parties. These matters could require full re-hearings and may take a full morning during a sitting day, which means additional Circuit Court cases would not be heard that morning. Reportedly, a significant number of appeals made by lay litigants are often legally unsubstantiated. As at the higher court levels, Ireland may benefit from considering the development of a mechanism to screen appeals without substance. If better information and other help is easily accessible, fewer litigants may want to go through with an appeal.
4.3.5. Staff support for judges
There are currently 20 judicial assistants (JAs) and 18 criers supporting the Circuit Courts. Both criers and JAs are allocated by the Courts Service to a judge, and travel with them when needed. Initially, Circuit Court JAs were recruited on a similar basis as for Superior Courts, but this was changed to a separate competency-based exam and interview. JAs have an undergraduate law degree and are on a three-year non-renewable contract. They initially attend an induction programme, followed by an ongoing programme of training.
JAs keep the judge’s court diary, and maintain and file the judge’s minute books and private records of proceedings so that they are readily available when called upon in the event of adjourned proceedings or otherwise. Recently, JAs have taken on additional responsibilities in ensuring compliance with COVID-19 measures. JAs also provide the judge with necessary clerical/secretarial support, although in practice, judges also complete a large portion of secretarial work. Circuit judges must carry an extensive and bulky mobile library, which is maintained by the JA, who is also required to keep orderly files of precedents and legal articles to ensure that they are available when required. IT skills are particularly useful, and will be more so in the future when automated systems are introduced and paper files are reduced.
Similar to other court levels, several Circuit Court judges interviewed suggested that the skillset of young lawyers who apply for support roles may not always necessarily match what judges require. It was also suggested that the standard three-year contract may not be ideal, as candidates receive alternative job offers and turnover is high.
The current JA job description states that candidates must have successfully completed a Diploma in Law from Kings Inns, have a good understanding of the work of the Irish courts system, a knowledge of modern legal research methods and materials, and some experience conducting legal research (this can include academic research or research during court case preparation).
More specifically, the job description is listed as:
Summarising facts, legal submissions, case law and relevant material as directed by the judge for inclusion in draft judgements.
Proofread draft judgements, assist in research for draft judgements.
Assist the judge in the preparation of lectures, conference papers and speeches.
Prepare case summaries, assist with legal drafting and proofing.
Duties at the court are described as:
Acting as liaison between the judge and the parties to litigation (if required).
To note evidence and submissions as directed (IrishJobs, 2019[99]).
The type of support staff Circuit Court judges need differs depending on their assignment. Judges outside Dublin who need to travel may have different needs than those sitting permanently in Dublin. In addition, judges who travel to a restricted number of places may have different needs than those who travel to many different or remote places. There are also differences depending on the types of matters judges are assigned to, such as family cases. Judges themselves have varied IT skills and need different levels of support to make the best use of systems, software, equipment and for troubleshooting.
Generally, Circuit Court judges may benefit from greater support for legal research that applies to the court. Administrative and clerical support, support for case file management, communication with others at the courts as well as with litigants about hearing times, submission requirements and timelines are also important areas to consider to strengthen available support. This combination of research, organisational and interpersonal skills can be difficult to find among regular law school graduates. Considering the limited research range required, and the strong focus on administrative and logistic support needed, the requirements of this role could be a match for paralegals.
In view of the mixed experience of the support available reported by Circuit Court Judges, a review of actual needs, reflection on differences in support requirements, and how this might meet current JA job requirements could be beneficial. A first step would be to assess judicial needs, followed by an analysis of how that matches or not with current judicial assistant’s skills as stated in the job descriptions. Job descriptions and hiring practices may then be reviewed as needed to attract the needed candidates.
Examples from other courts could also be explored. For example, Chancery and Circuit State Court judges in Mississippi are supported by a combination of legal staff with different skills sets and at different skill levels, namely, staff attorneys, law clerks, law student research assistants, paralegals and secretaries.16 Depending on the needs of a particular judicial position, this may involve a direct assignment to one judge or to a group of judges. Supervision is received from a judge or group of Judges at the Trial Court level, although the applicant would be an employee of the Administrative Office of Courts, which is responsible for the administration of the courts and provides the staff required for those responsibilities.
Even a solid assessment of position needs may not always provide the necessary detail if staff with similar positions support a range of judges operating in different locations and with different assignments (with varied requirements of support). A good approach to better understand what is actually needed and where would be to conduct a pilot study. The North Dakota State Courts, for example, are currently conducting a pilot study to assess options to replace positions that are no longer an appropriate match for the support District Court judges need today (see Box 4.22).
The Judicial Support Pilot Project (JSPP) gives the presiding judge in each district, in consultation with the district judges of the district, several options to find a judicial support model that fits the size, structure and depth of support desired by each district. The JSPP offers three optional positions in lieu of recruiting a court reporter, electronic court recorder or electronic court recorder/transcriptionist:
1. JSPP District Court Paralegal
2. JSPP Staff Attorney-District Court
The pilot project ran for 18 months, from 1 September 2020 to 31 March 2022. Detailed job descriptions and other employment conditions were developed during this time. The status of employment for the duration of the project was laid out, as well as transition arrangements if the pilot project continues or becomes permanent. The JSPP positions are non-classified (at will) regular employee positions, and employees are entitled to state benefits.
Source: (State of North Dakota Courts, 2022[100]), Judicial Support Pilot Project, https://www.ndcourts.gov/Media/Default/district-courts/Judicial%20Support%20Pilot%20Project%20impl%20guidelines%20as%20approved.pdf.
The current selection and assignment process could be reviewed in Ireland, in particular from the standpoint of judicial participation. While some judges are part of the interview process, they do not always have the chance to interview those who will be assigned to them.
It may also be useful to review the supervision and reporting structures for staff directly supporting judges, who are employees of the Courts Service. While judges are their direct supervisors, the accountability, reporting and discipline lies with the Courts Service. Comparative models in this regard are varied. In the United States, judicial assistants are hired directly by courts, while in the United Kingdom it is the Her Majesty’s Courts and Tribunals System (HMCTS), and it varies widely in continental Europe. Either structure could be suitable if the staff and work of Courts Service is well coordinated with the judiciary and follows its directions in hiring, assignments and staff management. Equally important is to ensure that judicial assistants are hired with a clear understanding of what is needed by the relevant judges, and for individual judges to be able to provide input into hiring and managing their support staff.
Circuit Court judges can also draw upon judicial research staff, who are part of the Research Department in Dublin, if they require more involved or academic research; however, it was reported that this currently does not happen often. Any review of Circuit Court support staff would also need to consider when and how often Circuit Court judges need this assistance, and how it can be best provided.
Courtroom and file management support during hearings is provided by Court Registrars, who are designated to provide support for the administration of the court list and court files, swear in juries and witnesses, and draw up the formal court order after it has been pronounced in court by the judge. They do not provide support for non-case related administration or activities. OECD interviews revealed that registrars are not always available to schedule or handle hearings every week for a range of reasons, including hiring delays, lack of back-up options and less flexible work arrangements in some locations. The current number of registrars appears to be limited, and turnover is reported to be high, which may eventually affect the efficiency of judges.
Procedural mapping and simplification: Consider reviewing, updating and streamlining the current processes (litigious and alternative pathways), including by reviewing the paper forms that litigants and the court need to complete, submit and distribute. Consider standardising operations by the County Registrar and Courts Service staff across different locations.
Data tracking for case management and court rules: Put in place better data tracking processes (e.g., for case processing data, age of pending caseloads, number of adjournments) to inform the development of solid case management and court rules (and adjusted legislation) to control adjournments and require early discovery, including via streamlined cooperation efforts with the Courts Service.
Differentiated case management options for family cases: Considering the complexity range of family law cases handled at the Circuit Courts, the development of an initial pilot test for introducing differentiated case management options for family cases could be assessed.
Support needs assessment. Review the judicial support needs to ensure that judges have the staff support required, including quasi-judicial positions as well as the Judicial Assistant job requirements. This should be undertaken in collaboration with the Courts Service to collect the relevant information, assess the results and develop support staff options.
Backlog reduction teams: Assess the creation of special backlog reduction teams to focus on backlogged cases only, underpinned by a clear definition of backlog and supported by additional resources.
Lay litigants, victims and witnesses: Strengthen collaboration with the Courts Service to provide better support for lay litigants, including through the creation of accessible, easy-to-understand legal information sources and additional ODR options in line with the actions foreseen by the Kelly Review Group report. Consider providing training to judicial and support staff to effectively deal with lay litigants in a manner that addresses their specific needs while remaining neutral and cost-effective. The development of similar tools and efforts may be helpful for victims and witnesses in the context of criminal cases.
Data tracking for family courts: As the Family Court pilot is evolving, develop more streamlined processes and solid data tracking in collaboration with the Courts Service, along with mechanisms to assess what is being implemented and to strengthen collaboration with family service agencies.
Notification system: Consider modernisation of the notification system to enable it to track notification outcomes, and pilot the automation of notifications.
Digital tools and virtual processes: Benefiting from experiences throughout the pandemic, enhance the use of digital tools, including scaling up virtual processes in provincial venues and assessing the impact to inform additional implementation options.
Support for non-litigious pathways: To ensure that litigants are offered early opportunities to choose a non-litigation route, consider putting in place the necessary support (e.g., training, time and standing to be accepted by both parties) for those responsible for facilitating this decision (e.g., County Registrars, court registrars and judges).
Provincial venue coverage: Assess provincial venue coverage and consider online options to support a better understanding of resource implications and options to adjust in-person hearings.
County Registrars operations: Enhance the efficiency of existing processes and collaboration mechanisms for County Registrar operations, especially to enhance cooperation between judges and County Registrars to facilitate judicial control of case lists; as well as continue efforts to better understand the potential and limits for expanding County Registrars’ responsibilities over quasi-judicial decisions.
Sitting days: Consider assessing court sitting days across provinces to ensure the ensure the capacity to respond to the growing population and caseload
The District Courts are very high-volume courts, which is the main reason for the specific issues they face. Studies from the United States have shown that high-volume court operations present significant and particular challenges to litigants, defendants, victims, witnesses, judges, court staff and those responsible for their effective administration (Hannaford-Agor, Graves and Miller, 2015[101]). The high number of cases brought to the court means that large numbers of people are coming to the courts, and large numbers of requests need to be accommodated, hundreds of forms processed, and large numbers of files prepared, reviewed and processed every day.
Many District Court events are short, lasting only a few minutes. This rapid pace can make it particularly difficult for litigants who are unaccustomed to court proceedings to follow which cases are heard, what the court has asked for, and when and what they should do next. Further, during interviews it was reported that following the number of calls and adjusting to the quick pace of the District Courts in Ireland could even be initially challenging for barristers. This pace may affect the right of litigants to follow the procedures they are involved in in a manner that is understandable to them.
The rapid sequence of cases is due to a variety of factors, one being the reportedly high number of adjournments, which can result in judges having to move quickly from one case to the next. Results from the Delphi study indicate that hearings for a large range of cases, from simple to more substantive, remain short, lasting 30 minutes to an hour. While this may be appropriate for uncontested issues, concerns were expressed that the high number of cases listed to be heard every day may cause extensions of the sitting day into off hours, or a need to rush through the process. In this context, judges reported increasing challenges to adequately consider all elements of a case.
The number of judicial positions at the District Courts have not been reviewed since 2008. At the same time, several venues reportedly require infrastructure repairs and better Internet connectivity to be able to accommodate virtual hearings. Therefore, this court level may particularly benefit from investments in infrastructure and automation, further staff support, and improved case management.
There appears room to strengthen co-ordination and standard operating procedures between the Courts Service and District Courts outside of Dublin. While efforts are underway to develop more unified approaches, operations appear to apply different models depending on location, and the co-ordination of case scheduling with judges is reported to be limited in some cases. In this regard, modernising and unifying data collection systems to provide case management information could be considered. The Courts Service highlighted that data collection and case management used for civil and family cases is supported by around 35 separate systems for civil, criminal and family cases. These systems differ among localities and are based on the Lotus Notes software, which was put in place as a temporary solution when the Courts Service was created in 1999.
Overall, similar to other countries, in Ireland it would be relevant to strengthen the match between investment in court operations and the courts where most users are located. This may imply the re-balancing the allocation of resources to venues where they are most needed, while ensuring accessible justice throughout the country. While most cases resolved at District Courts tend to be less complicated, they still require effective support and management as they are important to people who are bringing them and often involve fundamental issues such as employment, housing and family matters, and in many cases criminal matters.
Following a 2012-13 study of ten state court systems in the United States, there was a growing recognition that courts need to refocus attention on lower courts. While this study (referred to as the Landscape Study) reviewed mostly civil state court operations (Hannaford-Agor, Graves and Miller, 2015[101]), it presented a different picture of civil caseloads to perceptions often held by civil trial lawyers and judges, and showed how much the civil workload had changed across all courts over the prior two decades. The key findings included that 80% of civil caseloads consisted of contract cases, small claims, and “other civil” cases involving agency appeals and domestic or criminal-related civil matters. Complex tort and real property cases comprised only 1% of civil caseloads. Most cases involved relatively modest monetary values, and litigants represented themselves in more than three-quarters of cases. These findings prompted the US Conference of Chief Justices to endorse recommendations that courts should refocus their attention on the lower-level courts with high-volume caseloads (Hannaford-Agor, Graves and Miller, 2015[101]).
The results of this study also indicated that the due to the high costs of litigation in the United States, the fact that most litigants brought lower value cases to the courts meant that the costs of litigating a case through trial would greatly exceed the monetary value of the case. This explained the relatively low rate of cases going on to a formal substantive hearing.
The study also highlighted the changing nature of the adversarial system, which traditionally assumed the presence of competent attorneys representing both parties. The Landscape Study dataset showed that in a relatively large proportion of cases (76%), at least one party was unrepresented, usually the defendant. This often created an asymmetry in legal expertise that requires effective court oversight and more judicial time to avoid unjust case outcomes. Small claims case lists, on the other hand, had an unexpectedly high proportion (also 76%) of plaintiffs represented by attorneys. This suggested that small claims courts, which were originally developed for self-represented litigants to access courts through simplified procedures, have become a less costly forum of choice for attorney-represented plaintiffs in debt collection cases in the United States (Hannaford-Agor, Graves and Miller, 2015[101]).
Some of the findings of this study could be relevant for Ireland, notwithstanding the many differences in legal, historical and political context. As shown in Chapter 3, overall numbers of civil and criminal cases have increased at District Courts in the past ten years, while decreasing in the High Court.17 While there are insufficient data to assess if the percentage of cases that go to trial instead of settling has changed at the District Court level over the past decade, judges reported experiencing similar trends to the United States. Increases in the number of lay litigants were also reported by District Court stakeholders.
A comparison between data reported by the Courts Service in 2000 and 2020 (Courts Service, 2022[102]) shows that the number of small claims cases heard has significantly declined, while the number of applications that did not qualify has increased. While this might be partially due to some legislative changes, there appears to be a significant interest in taking advantage of small claims processes that could be strengthened in Ireland.
With several parallels, some of the recommendations developed in the United States as a result of the Landscape Study (Hannaford-Agor, Graves and Miller, 2015[101]) may also be options to consider for the District Courts (and other court levels):
Adjustments to the legislative framework and court rules support efforts to better streamline processes. The number and complexity of processes and forms are reduced to ensure that cases that should be heard by a judge are not forced to settle due to lack of litigant capacity and financial means.
Litigants have access to accurate and easy to understand information about court processes and appropriate tools, such as standardised court forms and checklists for pleadings and discovery requests. A range of self-help options should be available for lay litigants, and court processes should be reviewed to prevent situations that can be confusing to them.
Court administrators and judges ensure that the courtroom environment for proceedings on high-volume case lists minimises the risk that litigants will be confused or distracted by crowded court rooms, excessive noise or inadequate case calls.
Case management options at the lower courts reflect the fact that while most cases can be handled in a relatively streamlined fast track manner, some cases may require more court involvement. For those cases, different case process options should be available either as a full track, if the caseload supports that, or as an option for the judge to choose when individual cases require more attention. Cases should be reviewed early on to identify if they require more time and scheduled accordingly.
The latter point may be particularly relevant for many of the family cases in the Irish District Courts. Judges also reported that increasing numbers of more complex cases in other case categories are coming to the court, which would require more time to be heard, including preparation time and decisions drafting. This situation may require consideration in case scheduling and resource allocations.
4.4.1. Enhanced assistance for lay litigants
There is scope to strengthen support for lay litigants coming to the District Courts in Ireland, building on current efforts to address this growing need through the Modernisation Programme and the implementation of the Kelly Report. A range of examples of easy to understand and use information has been outlined in the sections addressing similar needs at the Court of Appeal and Circuit Court, and could be applicable, with appropriate adjustments, at District Courts.
4.4.2. Diverting select case types to online dispute resolution and other processing options
District Courts currently handle certain case types that could potentially be handled through different processes or by other services. Using online dispute resolution (ODR) for select District Court cases, especially licensing and select road traffic cases, could be particularly promising.
Licensing cases in particular could be handled outside, or at least with less involvement of the courts. This would require a legislative reform that would need to take into account the implications for the funding structure of Courts Service, which benefits from payments of stamp duty from applicants. As noted, in most countries, review and approval for licences are fundamentally an administrative responsibility, not a judicial matter. Licensing decisions made by administrative agencies or serious violations of licensing requirements may require a judicial decision if appropriate review and appeals processes are not available within the related administration. In most civil law jurisdictions, complaints against licensing decisions issued by the relevant administrative agency are reviewed and decided by the agency’s complaints division; only appeals against these decisions can be brought to administrative courts. Similar internal complaint review processes tend to be available in many common law countries, again leaving only appeals against such decisions of the administration to potentially go to court, if at all (for an example of such a process handled by an administrative agency, with complaints handled by a special board.
While a range of other agencies are also responsible for specific licensing approval, review, complaint and enforcement decisions in Ireland, there are some types of licences (such as certain liquor licences) for which approval rests with the courts, mainly the District Courts. For example, initial requests to apply for an alcohol licence for a café or restaurant can be made online and are reviewed by the National Excise Licence Office. However, the complete application and all forms required are then “filed” at the local District Court, where it must remain in a waiting loop for a 30-day period during which others may file an objection. If no objection is filed, the licence may be issued (Government of Ireland, 2022[103]). This process could be a candidate for full automation, and any resulting objections could be dealt with through ODR mechanisms, regardless of whether this role remains at the District Court or is fully handled by another entity. Such an ODR process could also lend itself to centralisation, meaning that even if judges continue to be part of these licensing approval and complaint processes, they could be fully handled online, with a judge residing in a few locations depending on case numbers (to avoid judges needing to travel around the country to handle these matters), or possibly assigned on a rotating basis to handle such cases exclusively one day or more per week. The Delphi study results indicated that licensing cases on average take three minutes, which implies limited effort per event, but they still add to a full case list.
At the same time, diverting licensing cases away from the District Courts may not free up significant time for judges. The time study result indicated that the total time needed to handle all licensing cases takes a minimum average of about 1 264 hours per year, translating into 0.7 FTE positions. At the same time, these cases greatly contribute to administrative court staff time and traffic at court venues, and the rapid process could be confusing to lay litigants.
While a new e-Licensing process was launched by Court Service in the summer of 2020, it is currently only for applications and only to legal firms. This may be a good first step towards a full online licensing process as available in jurisdictions in the United States (see Box 4.24 below) and United Kingdom (see Box 4.25), for example. This possibility could be analysed further to consider the trade-offs, as it would likely entail a review of the legal framework applicable to licensing.
Application for, review and control of liquor licences in Virginia, similar to other US states, is the responsibility of the Virginia Alcoholic Beverage Control Authority (ABC). The ABC implemented an online system to make the licensing and permit process to sell or serve alcoholic beverages less complicated and replace traditional paper practices. Effective since January 2022, all applications will be processed using this system.
The online system, VAL (Virginia ABC Licensing), has two components. The first is an online back office where employees can review, process and approve licence applications or amendments, manage and track inspections, review and track educational components, and track investigations or adjudications and outcomes. The second is a public facing online portal where the public can submit and track applications or amendments, upload documents, and pay fees or penalties. The portal will give 24-hour online access and replaces the need for individuals to attend the ABC in person.
VAL is being implemented in phases, and the ABC is sending letters to individuals with personal identification numbers, along with guidance on how to create an account on the portal and link any historic applications or business activity. A production support team has been created to assist customers in using the portal (Virginia ABC, 2021[104]).
Complaints about liquor licence violations can also be submitted to the ABC online or via a toll-free phone number. The ABD has special agents that investigate complaints. Substantiated complaints are heard in administrative hearings before an ABC board served by administrative judges.
Source: (Virginia ABC, 2021[104]), Licensing FAQs, https://www.abc.virginia.gov/licenses/license-faqs.
In the United Kingdom, local authorities are responsible for managing licensing, including receiving applications, payments and approvals, as well as for creating their own licensing policy and review body. This can take the form of a division within a local staffing office or a formal review board. While some receive applications in person, in paper or via email, others have set up online portals to receive applications (Local Government Association, 2021[105]). Several licences, such as premises licences, can be applied for directly using the UK government’s online application portal. When an individual submits an application, it is directed to the relevant local authority for review and evaluation. Filling out the form requires the user to download the form and use Adobe Reader, submit electronic copies of relevant documents, and pay the licensing fee electronically.1 For businesses, the UK government has created a License Finder to help identify if a licence is needed and if so, which one.2
Many governing local authorities also have their own online portals or information for submitting applications. The City of Westminster, for example, receives 9 000 applications per year, making it the largest licensing authority in the United Kingdom. Its licensing department has a team of 14 practitioners who manage the licensing regime and review and issue licences (City of Westminster, 2021[106]). The city council has created a website where applications can be submitted, reviewed and commented on. The site is divided by type of application and allows for the electronic payment of any fees. An online register of licences is available where the public can search for relevant application notices or events. The city council even includes a link to its weekly newsletter, where interested parties can subscribe to be kept up to date on any approved or rejected licences in the area (City of Westminster, 2021[106]).
In Scotland, licensing is also handled by the local authority, although individuals must also receive a Scottish Personal Licence, which requires an element of payment and online training. Once a Scottish Certificate for Personal Licence Holder Qualification is received, an individual can make an application to their local authority. In Glasgow, this can be done in person by booking an appointment online or by post (Glasgow City Council, 2021[107]). In comparison, in Edinburgh individuals can upload their application and pay for it online. Licences are then reviewed by Edinburgh’s Licensing Board, which consists of ten city councillors and meets monthly. If interested, individuals can subscribe to email updates from the city council’s Licensing Service (The City of Edinburgh Council, 2021[108]).
← 1. See –for example an application for a premises license, available online at https://www.gov.uk/apply-for-a-licence/premises-licence/city-of-london/apply-1 (Last visit 03/04/2022); For reference, the UK’s government licence finder is available online at (.
← 2. See –for example an application for a premises license, available online at For reference, the UK’s government licence finder is available online at https://www.gov.uk/licence-finder/sectors (Last visit 03/04/2022).
4.4.3. Road traffic cases
Simple traffic cases, but not all road traffic cases, could also be reviewed to move away from judges. At the moment, through the Fixed Charge Penalty system, simple cases that imply a fine only reach the courts if the offender fails to pay once they have received a fixed charge notice. More complex road traffic cases, especially repeat offenders that endanger others or result in injuries, belong in the court. For these matters, enhanced scheduling and case management approaches are needed. The structure of an effective case management approach depends on the cases that will likely be handled in court, local circumstances and the number of cases of various degrees of complexity, which requires more detailed data about cases coming to District Court judges. Data needed include that which will enable distinguishing traffic (and other) cases by complexity and case process trends, i.e. if they are likely to plea early, shortly before a hearing or proceed to a full hearing. Based on this information, the court can decide if and what processing options would be meaningful.
Importantly, diverting smaller traffic court cases to Online Dispute Resolution (ODR) and other solutions may increase efficiency and free up judicial time to focus on the more serious matters. Currently, all road traffic cases require a minimum of approximately 15 813 hours annually, translating into approximately 8.8 FTE judicial positions. If all or most cases that end in a plea were handled via ODR (with possibly some going to a full hearing), it could free up to 4 FTE positions that could focus on more serious matters and other court work, especially family law cases. An example of how an ODR process is used by courts in the US state of Connecticut that could be beneficial in the Irish courts is shown in Box 4.26.
The Connecticut Superior Court introduced an ODR process for traffic cases that combines filing and submissions with virtual review. The Online Ticket Review has reduced the number of days from citation to adjudication from more than 180 to less than 60. In addition, the online process allows the prosecutor to better tailor sanctions for defendants based on driver history, charged offences and other relevant factors. Connecticut’s Online Ticket Review programme is “opt-in” and has a 76% acceptance rate. Participants can either plead guilty and pay the fine online or plead not guilty and use the website to tell their version of the incident, including uploading photos or other documentation. A prosecutor reviews the facts of the case using live data from the Connecticut Department of Motor Vehicle’s licence and registration databases, the court’s case management systems, and any crash report information uploaded by law enforcement. In approximately 16% of cases, the state chooses not to prosecute based on the information provided by the driver. Citizens appreciate that using the system means having their day in court without taking time away from work and family obligations. Before the online system was implemented, an average of 200 cases were decided during each three-hour court session, or an average of less than one minute per case. Because of time constraints in the face-to-face setting, it was not possible for the prosecutor or the judge to ensure the accuracy of information presented. Through the ODR platform, the prosecutor has ready access to driver history, licence and registration status, subsequent infractions, and pending cases, and can take whatever time necessary to gather and review relevant information. If the case qualifies, the prosecutor makes a settlement offer within two weeks. Some 80% of motorists/defendants accept the offer and are immediately directed to a payment page.
Source: (JTC, 2020[109]), JTC Resource Bulletin: Case Studies in ODR for Courts, https://inns.innsofcourt.org/media/194295/2020-01-28_odr_case_studies_v2_final.pdf.
Depending on the number of cases before the court, it may be efficient to set up a fast small claims track for simple cases that do not go to ODR, a general track for most cases, and a complex case track for serious cases such as intoxicated driving offences, repeat offenders and vehicular homicide. Such tracks require establishing meaningful time standards for different case steps and an allocation of adequate time for hearings, as applied by the registrars. Ideally, this would be supported by an effective case management system. A simplified version could be tested beforehand, as undertaken in the United States and other countries before automation reached its current level of sophistication.
While ODR solutions for traffic law cases may take longer to develop, solutions to more efficiently address traffic cases that are currently coming – and will always come – to the courts could be considered and tested now. In locations where the case load allows, such as Dublin and possibly Cork, the creation of a special traffic court option may be considered. This would require an additional assessment of available data to have a better understanding of what would be meaningful and could deliver impact. If the data indicate, for example, that the caseload would support a special traffic court in Dublin or Cork (even if just for a day or a few days per week initially), then different processing tracks or scheduling bundles would need to be considered. The use of bundling different traffic case types to be heard in different sitting day time slots is in place in Arlington County, Virginia (see Box 4.27).
The Arlington General District Court has three judges, including the Chief Judge, who hande all civil, criminal and traffic cases. They serve the jurisdiction of Arlington County, which has a population of about 233 500. The jurisdiction is served by several police departments responsible for the enforcement of traffic violations. The court schedule reflects efforts to increase hearing efficiency and limit adjournments:
9:00 a.m. Arlington County Police Department (ACPD) and Metro Traffic Cases
10:00 a.m. ACPD (M, Tu, Th, F)
10:00 a.m. Metro Washington Airport Authority (Wednesdays only)
11:00 a.m. Virginia State Police (Monday - Friday)
1st Friday – Parking Ticket Case List
2:00 p.m. Bus and Photo Red Lights
4th Wednesday – Hot Lane Case List
Source: (Virginia's Judicial System, n.d.[110]), Court Schedule: Traffic Court (webpage), https://www.vacourts.gov/courts/gd/arlington/home.html
4.4.4. Creating more targeted case management approaches
District Court judges apply a range of case management techniques. Court lists are monitored and registrars proactively indicate to judges when an adjourned date’s list is full. Rules are also in place for the scheduling of new cases. Several new approaches were also introduced due to the COVID-19 pandemic. For example, Callover is now handled by using staggered daily timeslots for hearings. This is an important case management improvement that assists judges and litigants, and is planned to become a permanent approach. If the needed data are made available, they can be used to inform the design of new case management options that will result in more effective processes that are also easier for litigants.
Considering that the range of case types coming to the District Courts includes several that require higher levels of attention and support, case management is more involved at the District Court than might be expected. As mentioned, cases at this level are not all simple, fast to process cases. The limited data available point to the benefit of considering at least a two-track system, and possibly a separate track for select family cases and/or a traffic case track in Dublin and a few other locations with a significant case load. It may also be useful to review family cases early on, flag those likely to require different levels of attention and schedule them accordingly. More effective case management and more effective scheduling would be beneficial. Currently, judges seem to be faced with different scheduling approaches across different locations, driven by variations in estimates by registrars as to how many cases can be handled in a day and how much “overbooking” is appropriate. According to stakeholder interviews, this is partly why cases are adjourned when there is not enough time in the sitting day, or why sitting days are increasingly getting longer. Sitting day data show the continuous increase of special sittings and out of hours sittings.
Strengthening data availability can help courts develop more effective case management options and better human resource management plans. To date, judges can approximately estimate how many matters they can handle without compromising procedural requirements or quality of justice. For example, judges reported that based on their experience, depending on the case complexity mix a judge may be able to effectively handle 10,000, maybe up to 13,000 matters per year. Considering that the various case types handled at the District Court require very different attention from the judges, a targeted approach may enhance judicial resource management.
4.4.5. Small claims and simplified, fast track proceedings
National and EU small claims procedures are available in Ireland, and where they exist a special small claims registrar is assigned a significant role in early case management and the settlement of these cases. In 2020, a total of 3,231 Irish small claims cases were received. Of these, 626 were settled by a small claims registrar, 205 were resolved by default, and 202 were withdrawn or not proceeded otherwise before coming to a judge (these were all reported as “disposed out of court” in the 2020 annual report). Only 486 were left to be adjudicated by a judge.18This appears to be a relatively effective use of a process using an alternative non-judicial source – and could be applied more widely and uniformly. The current online process available for these cases appears to help, but may benefit from updating, especially if it can be adjusted to an ODR process, as outlined for traffic court cases in Box 4.28.
At the same time, out of all cases received, 1,169 (half of all cases) were not covered by the Irish small claims procedure. The number of small claims cases handled at the District Courts compared to the number of applications received has significantly declined over the years. The number of small claims cases received in 2000 (3 150) was only slightly lower than in 2020 (3 231). Of these, 36 were not covered by the Irish small claims procedures in 2000, compared to 1,169 not covered in 2020.19This may partly be due to the fact that claims valued up to EUR 2 000 qualified in 2020, compared to the equivalent of EUR 1 269 in 2000. The maximum value of EU small claims been increased to EUR 5 000,20which is the same as national small claims cases in Scotland.21A review of the reasons why claims submitted did not qualify could provide some insight to inform needed changes.
The small claims registrar tends to be the regular and only registrar working in a particular court location, given that the small claims registrar is linked to the local District Court. As a result, the use of small claims options varies across the country. Reportedly, registrars in some courts try to mediate, whereas in others they do not. In order to strengthen consistency, it may be beneficial to explore further coordination across the courts throughout the territory, the appointment of a central supervising entity or centralising this function. The 2020 data available from the Courts Service show that most small claims cases were received (1,374) and handled in Dublin. Over 50% of these cases did not qualify. The registrars settled 135 and judges adjudicated 72, which is rather low. In the next largest jurisdiction, Cork, 214 cases were received, 67 did not qualify, 60 were settled by registrar and 10 adjudicated by a judge. There is significant potential to upscale the use of the registars as mediators if they have the time and proper training, and if litigants receive the needed information ahead of time.
In Scotland, sheriffs or summary sheriffs can make decisions on matters in the Sheriff Court for claims that are GBP 5 000 or less. Typically, this includes matters around the payment of money, debt recovery, or similar orders.
This “Simple Procedure” replaced the small claims procedures in 2018 and deals with summary causes. Parties can track their progress online using this procedure, but must try to settle their dispute first. In 2018-19, 29 613 cases were disposed of (28 249 cases in), and in 2019-20, 28 250 cases were disposed of (32 345 cases in). During these two years, there was a 14% increase in the number of cases under the simple procedure, but disposals decreased by 5%.
Previously, small claims matters in Ontario were dealt with at the Superior Court of Justice, which is one of the busiest courts in the country. However, a small claims court was created for claims up to CAD 35 000 (Canadian dollar), and matters in this court are typically resolved in less than a year. The small claims court uses modern technology, including an e-filing and claim submissions portal. This court is presided by deputy justices – senior lawyers who are appointed for a term by the regional senior judge. There are 90 sites across Ontario.
Source: https://www.scotcourts.gov.uk/taking-action/simple-procedure/simple-procedure---making-a-claim; (Scottish Government, 2021[111]) Civil justice statistics in Scotland: 2019-2020, https://www.gov.scot/publications/civil-justice-statistics-scotland-2019-20/pages/3/; (Ontario Government, 2019[112]), Ontario Making It Faster, Easier, More Affordable to Settle Small Claims, https://news.ontario.ca/en/release/54269/ontario-making-it-faster-easier-more-affordable-to-settle-small-claims; (Ontario Superior Court of Justice, n.d.[113]), Small Claims Court, https://www.ontariocourts.ca/scj/small-claims-court/.
The small claims process in Ireland could be further modernised. A growing number countries are changing optional small claims proceedings into an effectively structured lower value claims fast track case management process (comprised of simplified, streamlined submission requirements and processes). This process is primarily handled by non-judicial staff, similar to the Irish small claims registrar, by using ODR mechanisms. Processes used in Scotland and Canada could possibly be considered in Ireland (Box 4.28).
Some countries have also adopted more comprehensive court-based dispute resolution options adjusted to a range of different lower value and less serious cases, or other cases that may benefit from mediation and arbitration. The aim is generally to better serve those with less means, and to provide a range of more streamlined dispute resolution options to reduce courts’ workload. Washington DC, United States, provides one of the oldest examples of such a system. In 1985, the Intake and Referral Center was the first Multi-Door programme established in the Superior Courts of the District of Columbia (the DC Superior Courts are the general jurisdiction trial courts for the city). Trained Dispute Resolution Specialists were, and still are, available to assist those coming to the courts to help them consider options for the resolution of their disputes. If the Dispute Resolution Specialist is unable to conciliate the dispute, the citizen will be referred to an appropriate legal, social service or dispute resolution organisation (District of Columbia Courts, n.d.[114]).
In the same year, the Small Claims Program became the first dispute resolution programme offered to the public to enhance access to justice. Mediators are available daily to help parties reach a mutually satisfactory resolution of disputed claims of USD 10 000 or less. In 1991, small claims mediators began to take on collection cases with claims of USD 25 000 or less. In 2019, approximately 58% of the small claims cases entering mediation were resolved. Related to this, a Family Mediation Program began operation in late 1985. Initially, cases entering family mediation came to the programme on a voluntary basis and involved issues of child support, custody, visitation, spousal support and property division. Mediation continues to be available prior to filing a formal complaint in court or at any time after filing a complaint, even on the day of trial or at the hearing. Specially trained family mediators also mediate cases with tax and pension issues. Cases ineligible for joint mediation are those involving the use of weapons, serious injury by one party to the other, a long history of repetitive violence, or child abuse. Court-annexed, non-binding arbitration was initiated in 1987. Over time, mediation has grown in popularity, but the option of arbitration remains open to clients of the Superior Court (Superior Court of the District of Columbia, n.d.[115]).
4.4.6. Review of indictable criminal cases
District Court judges could benefit from a review of criminal cases that are indictable and bound to the Circuit Court. Historically, all criminal cases, no matter how complex or severe, started at the District Court, and this is still the case today. While the Director of Public Prosecutions (DPP) and the District Court judge have some discretion in a range of case types, and the accused may choose an offered option, if a case should be heard at the District Court or the Circuit Court, the law designates select serious matters that must be heard at the Circuit Court or even the High Court level. In these types of cases, District Court judges reported having primarily an administrative role, with tasks including conducting a call for return for trial, providing information related to the book of evidence when it is served, explaining their rights to the defendants and then sending the case to the Circuit Court. Unless the District Court is needed for pre-trial custody or bail decisions, this apparently mainly administrative part of the process is possibly delaying scheduling at the Circuit Court. There were approximately 21,500 indictable cases sent forward for trial from the District Courts to the Circuit Courts in 2020.22 While some of these actions take only a few minutes, they tend to trigger multiple adjournments. Therefore, additional data would be necessary to clarify if removing them from the DC court judges’ calendar would have a significant impact on their workload. However, it could reduce a processing step for what are actually Circuit Court cases and, if an in-person event, reduce traffic at the District Court.
4.4.7. Review of family law case processes
As with the Circuit Court level, it may be useful to pay particular attention to the needs of different types of family law cases coming to the District Courts in Ireland. Not unlike for their Circuit Court colleagues, the workload data indicated that District Court judges spend large amounts of time handling family law cases, including some judges assigned exclusively to such cases. The range of contested and uncontested cases is large, making the appropriate scheduling of hearing slots relatively challenging. Recent family law changes are likely to divert a number of these matters from Circuit Courts to District Courts, shifting the challenges down. It is relevant to highlight that private family law cases differ from child care cases relying on public law (for instance, taking a child into state care), with the latter being significantly more complex and time-consuming.
Therefore, Ireland may consider reflecting on the ways to deal with these cases, including through possible diversion of complex child care cases to the Circuit Court. Experiences from other countries have shown that mediation could be an option for some types of private family law cases. Even in cases where the parties may disagree on some matters but are still willing to talk, mediation could be a better solution as it may be faster and less costly, and can even lower the conflict potential and help lay the groundwork for more amicable future communication. Special court-annexed family mediation programmes have evolved in many countries (see Box 4.29), and to some extent in Ireland; however, mediation sources, especially at the court, are limited. Ireland is currently working to strengthen the Legal Aid Board’s family mediation service.
The Family Court of Western Australia conducted a one-year mediation pilot from July 2019-20, whereby mediations were conducted by two senior registrars. During the pilot, litigants were offered the opportunity to participate in a one-day mediation to explore setting the dispute in whole or in part. During the pilot, 312 mediations were conducted, with 52% of completed mediations resolving all issues and 23% resolving partial issues. This activity saved 334 days of judicial sitting time.
Upon completion of the pilot, three additional registrars were appointed on a permanent basis to increase in-court mediation services. As a result, it was expected that in 2021 the court would have the additional capacity of 800 full and half day mediations.
In terms of training, the registrars must have extensive experience practicing family law, and complete training to become accredited mediators.
Source: (Family Court of Western Australia, 2020[116]), Mediation Pilot: Final Report, July 2019 to June 2020, https://www.familycourt.wa.gov.au/_files/Publications_Reports/Mediation-Pilot-Final-Report-Jul2019-Jun2020.pdf;
See (Family Court of Western Australia, 2020[117]), Annual Review 2020, https://www.familycourt.wa.gov.au/_files/Publications_Reports/FCWA_Annual_Review_2020.pdf.
A significant number of family law cases trigger adjournments in Ireland, reportedly partly because the court schedule is too tight to handle all matters as needed. Without more solid data to assess adjournment frequency and reasons, it is difficult to develop and implement more effective adjournment rules. Furthermore, many of the family law cases involving children require continuous decisions on maintenance issues that could be eliminated or reduced to short online check-ins if legal requirements were better adjusted and sufficient family support agency services were available. As noted, the courts have increasingly taken on family case management responsibilities that might be better placed in family services. If separate family law courts are created, this would need to be reflected in their design.
Establishing the exact amount of time judges spend on family law cases, especially childcare cases, appears to be challenging, primarily due to limited data collected. Judges estimated spending, on average, a minimum of 10 to 15 minutes per hearing. Most of these cases are renewed on a monthly basis because parents do not agree on longer periods for payment or visitation schedules, and interim orders cannot be extended for more than 29 days. Some cases stay five years in the system without any final order. Judges estimated that on average, around 18 hearings are needed per case, more depending on the complexity of the case. Registrars estimated that the average number of hearings was ten, but that would imply that cases will be dealt with within a year, which seems rare. In order to go beyond estimates and understand true resource requirements, it would be important to collect data to identify how many individual hearings are held in a particular case. It would also be important to review data collection on “cases” (currently considered as numbers of applications incoming and handled) to present a clear picture of the caseload with a view to understanding workload, processing and resource requirements. More data are also needed to assess trends in case complexity, which can greatly impact judicial time requirements. Importantly, domestic violence was reported to be an increasingly time-consuming area, but the data to assess this are not yet available.
These are all areas that could be considered as part of the current family law changes being planned. Given that mediation and other services are more limited in provincial venues, designing a pilot for such locations could make a difference. One option could be to collaborate with Tusla and relevant service providers to arrange for mobile family service teams to be available when the court is sitting in a particular venue. As several of the smaller venues do not offer much space to accommodate other services, this may be an opportunity to explore if other public spaces not used regularly can accommodate IT supported courtrooms and flexible family service centres, always taking into account the specific needs of complex family procedures where appropriate.
4.4.8. Development of a new court data collection process
To develop more effective processes and case management options, the District Court (and other courts) would greatly benefit from better and more reliable case data. Better data are also a prerequisite for putting in place a more effective automated case management system to allow for more targeted scheduling, case tracking and resource allocation, etc. This workload study has created a set of case data and identified existing sources that could inform the development of a solid data collection system to support more effective case management approaches and other change needs in the future. While many cases come to the District Court, the range of case types, as well as their complexity, is less than in other court levels, with the exception of child care application cases which are often long and complex. This could position District Courts as an ideal place to pilot a new case data collection approach that could focus primarily on effective case and court management.
In addition to the software platform planned by the Courts Service to build a better case management system, it would be important to invest in defining the data needs of courts to better manage their cases, overall operations and resource allocation. This could begin with a review of District Court filings using case counts (not counts of applications, orders offences, etc., even though these should also be collected to understand case processes and flows) based on record numbers and definitions aligned with the court hearing lists. This could be followed by defining which further case process information by major case steps and decisions should be collected. This would provide essential information to better understand the processing needs of the different case types coming to the District Courts. Such a review would need to assess the percentage of more complex cases in each case category, frequency and reasons for adjournments, processing bottlenecks and backlog situations, frequency and timing of settlement and plea decisions, number of and types of cases being appealed to the Circuit Court and outcomes, and percentage of lay litigants by case types and role, and related case outcomes.
In addition to the core data elements that would need to be available for every court level, it would be important for District Courts to have information about specific case details. For example, data for incoming enforcement cases should distinguish between enforcement of fines and enforcement of judgements, as these can lead to differences in hearing time and decisions. Stakeholder interviews revealed a significant backlog in the enforcement of fines, although further information is unavailable. In view of this, Ireland may benefit from considering alternative solutions to the enforcement of fines, unless and until any issues arise. More broadly, investment in developing the detailed information elements about cases could help the development of more effective options to respond to inefficiencies and backlogs in the future. Data needs are further discussed in Chapter 10.
Short-term:
Piloting data collection and case management approaches: Given their position, consider using District Courts as a suitable starting point to develop pilots for better data collection to inform the creation of more targeted, differentiated case management approaches, strengthen collaboration with the Courts Service to develop these initiatives including the ability to track backlog and adjournment frequencies and reasons by case type, in order to inform new rules and legislation. This could begin with a review of District Court filings using case counts based on record numbers and definitions aligned with the court hearing lists, and could be followed by defining which further case process information by major case steps and decisions should be collected.
Staff support options: Ensure District Court judges receive effective staff support. For this purpose, consider developing an initial central support staff pilot team, and test online staff support options for judges in different assignments.
District boundaries and alternatives: Assess district boundaries and consider alternatives for provincial coverage, possibly creating larger districts to allow for more flexibility in assigning judges across an area, and including court kiosks to access information, ODR and virtual options.
Consider reviewing citizen’s justice pathways, including their journey to access legal information and assistance, to access lawyers including legal aid, and to understand the existing legal mechanisms at their disposal such as the courts and ADR mechanisms. Building on this analysis, develop options to address gaps in this area. Consider adjustments to the legislative framework and court rules to support efforts to better streamline processes and forms to enable access to a judge to all litigants irrespective of their financial capacity or legal literacy, provide access to accurate and easy to understand information about court processes and appropriate tools (e.g., self-help options) and ensure appropriate courtroom environment for proceedings (to reduce the risk that litigants will be confused or distracted by crowded court rooms and excessive noise).
Mid-term:
Small claims and online dispute resolution: Enhance collaboration with the Courts Service to test targeted online dispute resolution (ODR) and better small claims processing options for licensing and simple road traffic cases. If the needed data are available, consider creating a special traffic court in Dublin. In the longer-term, consider reviewing the cases that should come before a judge and those which may need to be diverted to non-judicial avenues or automation.
Data: Strengthen the Courts Service’s focus on collecting data to inform the development of enhanced information systems, and provide appropriate support for lay litigants.
Family law cases: As the family law reform activities continue to evolve, they offer opportunities to pilot differentiated case management options and mediation for family law cases, as well as to explore co-location with family services for sittings in provincial venues or mobile venues to enhance access to and alignment with needed services. This may include collaboration with Tusla and relevant service providers. Consider optimal ways to deal with complex child care cases, possibly through possible diversion of to the Circuit Court.
Case management teams: To support the growing focus on data-driven and more differentiated case processing (for simple and mode complex cases), consider the creation of case management teams, supported by a dedicated case management judge or senior legal staff.
Role of Court Presidents: Consider expanding the capacities of the President of the District Court to draft practice directions or guidelines for the whole District Court or for particular districts in collaboration with their assigned judges as necessary, to facilitate coordination and coherence.
Inclusiveness: Ensure the creation of spaces for judges in rural areas to receive adequate training and be able to attend exchanges with colleagues, both virtually and in-person.
Allocation of resources: Strengthen the match between investment in court operations and the courts where most users are located, through possible re-balancing of the allocation of resources to venues where they are most needed, while ensuring accessible justice throughout the country.
Long-term:
Indictable criminal cases: Consider reviewing the process currently used for indictable criminal cases bound for the Circuit Court, and assess options to shift responsibility from District Court judges. Promote a progressive upscaling of the use of Registrars as mediators by fostering allocated time and proper training, and providing litigants with the required information ahead of time.
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Notes
← 1. Internal document provided to the OECD by the Chief Justice of Ireland in November 2021.
← 2. See the website of the International Consortium for Court Excellence at https://www.courtexcellence.com/.
← 3. For appeals that require application for leave at a lower court, this guidance recommends that time standards start during this period and the two courts work jointly to ensure timely forwarding of the notice of appeal. Alternatively, this period could be designated as a discrete interim stage and measured separately.
← 4. The group is comprised of members of the Conference of State Court Administrators, the National Association for Court Management and the Court Information Technology Officers Consortium.
← 5. This does not mean that such data are not collected for the superior court, but that they are not regularly compiled to assess and track settlement trends.
← 6. For a definition of backlog see for example, International Framework for Court Excellence p. 69, available at https://www.courtexcellence.com/__data/assets/pdf_file/0030/54795/GLOBAL-MEASURES-3rd-Edition-Oct-2020.pdf (Last visit 29/03/2022); Langbroek, P. and M. Kleimann (2016), Backlog Reduction Programmes and Weighted Caseload Methods for South East Europe, Two Comparative Inquiries, https://www.rcc.int/download/docs/Court-Backlog-Study_FINAL_za%20web.pdf/f2bdb2ae4d27f8588034538cb54b6011.pdf; and National Audit Office (2021), Reducing the Backlog in Criminal Courts, https://www.nao.org.uk/wp-content/uploads/2021/10/Reducing-the-backlog-in-criminal-courts-Summary.pdf. For the Norwegian experience, see Grendstad, G., W.R. Shaffer, J. Øyrehagen Sunde and E.N. Waltenburg (2020), From Backlogs to Quality Assurance. The Development of Law Clerk Units at Norwegian Courts, https://doi.org/10.36745/ijca.352.
← 7. Paper applications are frequently used at the Commercial Court of England and Wales where the parties agree to resolve the whole or part of their dispute, and for minor adjustments to case management directions where the court can be satisfied that the change will not have an adverse impact on a trial date or other undesirable consequences. Paper applications are generally used where all parties agree that the matter can be dealt with on the papers, although certain types of paper applications are routinely made in the absence of such agreement (e.g. applications for permission to serve a skeleton argument or statement of case longer than the prescribed maximum, or applications made without notice for permission to serve proceedings out of the jurisdiction) (Judiciary of England and Wales, 2021, p. 36[39]).
← 8. Reportedly, most of these forms are statutory forms that cannot be changed by the courts alone but require related action from the Department of Justice. Generally, this also means that the Circuit Court Rules Committee submits a request that such changes are made. If any such actions have started is not confirmed yet.
← 9. In the United Kingdom, for example, some cases are being set trial dates for 2023 and later, and the Guardian recently reported that solicitors involved are considering whether these matters could be submitted for violation review (Bowcott, 2021[118]). https://www.theguardian.com/law/2021/jan/10/covid-leading-to-four-year-waits-for-england-and-wales-court-trials
← 10. The earlier mentioned recently introduced requirement for Court of Appeal judges to submit their judgments within a specified timeline are an example. However, they were not developed using data and systematic qualitative input from all involved. Their feasibility and effectiveness will be tested after judges have applied them in the coming months.
← 11. See Circuit Court Rules (Mediation) 2018; 2(ii) https://www.irishstatutebook.ie/eli/2018/si/11/made/en/print
← 12. Legal diary of the Irish courts can be found here: http://legaldiary.courts.ie/.
← 13. (Courts Service, 2021[88])– internal document shared by the Family Law Reform Programme Group to the OECD in December 2021.
← 14. See https://www.legalaidboard.ie/en/contact-us/find-a-mediation-office.
← 15. The legal aid landscape in many continental European jurisdictions is also quite different from what is found in many common law countries. The number of trade unions, associations and consumer organisations that also provide legal aid tends to be high, and in counties such as Germany and the Netherlands, legal aid insurance is bought by significant portions of the population. In the Netherlands, for example, the number of legal aid insurance policies has stabilised at around 42% of the Dutch households since 2010 (see (Legal Aid Board, 2021[82]) https://www.legalaidboard.ie/en/).
← 16. For detailed job descriptions see Courts of Mississippi (2021), https://courts.ms.gov/aoc/forms/aoc_jobdescriptions.pdf.
← 17. This does not mean that the overall workload at the High Court declined, as the caseload there is likely to have shifted to even more complex cases that require more judicial time (there are just limited data to show this).
← 18. This figure from the Courts Service special files provided in 2021 differs from what is reported in the 2020 Annual Report as it did not include the 172 cases adjudicated in a hearing.
← 19. See Courts Service Annual Reports, 2000 and 2020 (Courts Service, 2022[102]).
← 20. The maximum value of EU small claims is incorrectly stated as EUR 2 000 in the 2020 annual report. See https://www.eccireland.ie/consumers-rights/european-small-claims-procedure/ (last visit 17/02/2022).
← 21. See for example https://www.scotcourts.gov.uk/taking-action/simple-procedurehttps://www.scotcourts.gov.uk/taking-action/simple-procedure (last visit 17/02/2022).
← 22. Courts Service, special files shared with the OECD, 2021.