The Gazette 1980

GAZETTE

SEPTEMBER 1980

Is Your Barrister Really Necessary?

G.J.A. Sheean, A.C.I.I.

The following extract from a letter which I received recently serves to highlight the problems facing litigants. "This case was first listed for the previous Thursday and not reached. It was about to start on Friday but Judge X would not take it because it was an "All issues" case and could not be guaranteed to finish by 2.30 p.m. when he wished to depart for Dublin. When we got down to Hearing on Monday I discovered it was placed not first but fourth in the list and what was worse, the case behind it was taken first because there were witnesses from England. That case ran in one Court and A v. B in the other and we would have been back a fourth day had it not settled. Accordingly, the Plaintiff accepted the sum of £ 5 , 0 00 because the Costs were getting out of all recognition to the size of the claim". The pressure to settle in circumstances such as I have detailed, is severe and one must question if justice can be done between the two parties, under such conditions. The position of the Solicitors is an extremely difficult one as he is faced with having to placate not only an angry Client but also restive witnesses. Whilst delays can occur in the best regulated Courts, massive listings such as I have described cannot really be acceptable to responsible practitioners. One cannot examine the operations of the Courts without questioning the function of Juries in Civil Actions. Whatever view one has as to the merits of the Jury System their involvement is accepted as adding substantially to the length of Trial. Apart altogether from this I am firmly of the opinion that Juries have outlived their usefulness, if indeed they ever served a useful purpose, in Civil Actions. The original concept of a Trial by the Peers of litigants, i.e. people who knew intimately each party, has changed beyond recognition. The Jury System is largely of Anglo-Saxon origin and having adopted it we seem very slow to follow the British in abandoning it as being unsuitable in Negligence Actions. I have already made mention of the Committee on Court Practice and Procedure and this Body was set up in 1962. One of its Terms of reference was " To consider whether and if so to what extent the existing right to Jury Trial in Civil Actions should be abolished or modified". Much has been said on the subject in the meantime but no concrete proposals have emerged although there appears to be some support at Government level for their abolition. In my view, Juries introduce into cases, an uncertainty which is wholly unproductive although it must be admitted that the system at times appears to appeal to the gambling instinct of the litigants. One of the most humorous histories of the Jury System appeared in the book "Windward of the Law" by Rex Mackey S.C. I will content myself by closing this subject by a quotation from that book "When it is considered that the average Jury consists of 12 diverse individuals fortuitously drawn together in an artificial association to decide between conflicting stories upon which different

(Text of a paper read to the Law Society Annual Conference, 1-4 May, 1980) "Is Your Barrister Really Necessary" Ere I go into Court I will read my brief through (Said I to myself — said I) And I'll never take work I'm unable to do (Said I to myself — said I) My learned profession I'll never disgrace By taking a fee with a grin on my face When I haven't been there to attend to the case (Said I to myself — said I) (Iolanthe — Gilbert & Sullivan) These admirable sentiments were expressed in song by the Lord Chancellor in Gilbert & Sullivan's opera Iolanthe. Although written long before the turn of the century, much of W.S. Gilbert's satire still seems apt when translated into present day terms. Before examining the function of Counsel however, it is necessary to look a little closer at the operation of our Courts and here we find that the list of Jury Actions has reached massive proportions. The present delay in Dublin is approx. 20 months from the setting down of the Action to the date of the Trial, and in Cork the period is not much different. Later I will suggest that Solicitors contribute to a significant degree to this backlog but first, I would like to examine other causes. The Postal Strike in 1979 did nothing to alleviate the situation but undoubtedly a major factor was, and still is, the failure of the Department of Justice to implement legislation to increase the level of jurisdiction of the Circuit Court. This has remained at £2,000 since 1971. It s h o u ld be r ememb e r ed h owe v e r, t h at the recommendations which gave rise to the setting of the limit at that time, were those contained in the 5th Interim Report of the Committee on Court Practice and Procedure. That Report was published on the 20th April 1966. There are some indications that the limit of jurisdiction of the Circuit Court will shortly be increased to £15 , 000 and that of the District Court to £2,500. Whilst this figure of £ 1 5 , 0 00 in the Circuit Court is somewhat more than was recommended in the 20th Intermim Report of the Committee, this Report was in fact submitted on the 1st August 1978. If these new limits are implemented, they will only be effective in the short term unless there is a regular updating to keep pace with inflation. To cope with the backlog which I have described, presiding Judges have adopted the expedient of listing substantial numbers of cases for Hearing each day. In Cork last January, as many as 20 Jury Actions were listed for Hearing before two Judges each day. This often resulted in a state of near chaos. This procedure entirely ignores the convenience of litigants, witnesses, Jurors and Solicitors but needless to say, it operates entirely to the financial benefit of Counsel. It is sad to note that Solicitors appear to have no voice in the Courts by way of protest and appear to be unable to make representations to the Judge in regard to such listings.

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