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Court of Appeal: 'The new court has failed to meet expectations'

Policies to reduce the backlog and to increase judicial efficiency should be put forward and rapidly put into effect, writes Seth Barrett Tillman.

Seth Barrett Tillman Maynooth University

WITH THE RECENT publication of the Courts Service’s 2017 Annual Report, we now have statistics on the Court of Appeal’s first three complete years of operation.

We can now ask the question: Has the Court of Appeal—which was approved by the voters in the October 2013 referendum—successfully dealt with the judicial backlog of appeals which it was created to address? The answer is: No.

Meeting expectations

By any reasonable benchmark, the new court has failed to meet expectations. In 2014, a backlog of 1355 civil cases was transferred from the Supreme Court to the Court of Appeal. At the end of 2017, of those 1355 cases, only 649 have been resolved. That means that after more than three years of operation, the Court of Appeal has failed to resolve more than half of its original mandate, ie, its inherited appellate backlog.

At this rate, the legacy Supreme Court backlog will not be resolved for another three years. Dickens’s Jarndyce v Jarndyce was supposed to be stylised fiction, not a how-to-manual.

The Court of Appeal has its own list—apart from its inherited backlog. At the start of 2015, the court’s first full calendar year of operation, there were 2001 pending cases; three years later, at the end of 2017, there were 1898 pending cases.

At this rate, the list of pending cases will not be cleared for 57 years. 57 years.

Performance

Performance over the past calendar year was in the negative territory. The court started 2017 with 1821 pending cases, and, as explained, ended 2017 with 1898 pending cases—a net increase. Over the course of 2015, 2016, and 2017, the court resolved 753, 588, and 533 civil cases—a decline in productivity of just over 25% during the court’s first three calendar years of operation.

Likewise, over 2015, 2016, and 2017, the court resolved 373, 329, and 283 criminal cases—a decline in productivity of just under 25%. A 25% decline in productivity is staggering—yet, there is not one word of explanation in the 2017 Annual Report.

Is there a plan to turn this situation around? None is put forward by the Minister for Justice and Equality, the Judiciary, or the Courts Service. The bar and legal profession are silent as stones.

Government’s current focus

The current focus of the Government’s attention in the proposed bill on the judiciary is on how to choose judges—no minister or shadow minister is particularly concerned about how much work judges actually do once appointed. There is no ongoing monitoring of judicial performance, and no one is held to account for failure. And that certainly includes the cross-party political leadership who urged the Irish public to vote for this judicial fiasco.

It has been reported that the Chief Justice has asked the Minister for an increase in the number of judges on the Court of Appeal. But there are no commitments as to what will be accomplished with current and new judicial resources; there are no concrete criteria for measuring success or failure; there are no observable deadlines for resolving all the pending cases or even the smaller legacy backlog.

Apparently, consequences for failure are only for other people, not for well-heeled civil servants in judicial robes.

Backlog

The Court of Appeal has a complement of some ten judges. If three panels of three judges met every business day and resolved two cases per business day (excluding ten legal holidays and two weeks’ vacation per year), the court would resolve 1440 cases per year.

If they had kept to that pace like clockwork, the backlog would have been resolved months ago. That’s one case every morning, and one case every afternoon. That would require real change with regard to the norms of judicial craftsmanship. It would mean giving up on judges’ drafting lengthy opinions where each judge gets to give voice to his own unique wisdom on behalf of posterity.

While the judicial backlog remains gargantuan, the high judiciary might also consider giving up the luxury of multiple judgments and dissents. (Indeed, we just might find that shorter and speedier appellate decisions yield a simpler, fairer, more transparent legal system for one and all.)

Deciding two cases a day would also mean that judging will be real work: a tough, hard slog every day until the entirety of the backlog is actually cleared. But why shouldn’t Irish judges work hard—really hard? After Brexit, Irish judges will be the highest paid judges in the EU.

Waste of time

In the foreword to the 2017 Annual Report, Chief Justice Clarke wrote: “Despite utilising all available resources, appeals lodged in the Court of Appeal exceeded the number disposed of.”

I credit the Chief Justice with believing what he wrote here. But believing something is true does not make it so. Over the last three calendar years, the Court of Appeal has held well over 2000 oral arguments. Some of these hearings lasted a full business day—a few were even longer.

This is a vast waste of judges’ time. Appeals do not have witnesses or juries. So anything and everything an advocate would put forward as an argument in court, she could (and should) do so in a paper filing. Oral argument should be ended in all but the most exceptional cases (e.g., where the defendant is without representation, because indigent, and illiterate).

Appellate judges should make decisions based on written submissions and the trial court record. Doing so would free 1000s of hours of judicial time—at no cost to the Treasury. Had this policy been embraced from day one, the number of pending cases would be considerably lower than it is today.

Other policies to reduce the backlog and to increase judicial efficiency should be put forward and rapidly put into effect. But if the only policy reform put forward to fix Ireland’s broken judicial system is to pay high salaries for more judges—just remember that this is the same advice the same people gave you in 2013 during the referendum. How well has their advice worked out for you so far?

Seth Barrett Tillman is a Lecturer at Maynooth University’s Department of Law.

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Seth Barrett Tillman  / Maynooth University

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