knowledge | 24 November 2016 |
Court Reforms Have Dramatically Reduced Waiting Times for Appeals but Risks Remain
Until 2014, Ireland did not have an intermediate appeal court. This led to a significant backlog in the number of appeals waiting to be heard. The establishment of the Court of Appeal saw a dramatic reduction in waiting times but these have now started to increase again.
In our 2014 briefing introducing Ireland’s Court of Appeal, we explained that a key reason Ireland needed a Court of Appeal was that there was then a largely unrestricted right of appeal from the High Court to the Supreme Court. Ireland needed an intermediate appeal court for “ordinary” appeals (where the alleged error in the original judgment does not affect the wider law or public interest), which would allow the Supreme Court, like other final appeal courts, to deal only with cases involving issues of general public or constitutional importance. The absence of an Irish intermediate appeal court had caused a significant backlog in the Supreme Court, with appeals waiting up to five years for hearing. Waiting time in the Supreme Court will shortly be eliminated entirely. However, waiting times for full hearings in the Court of Appeal have nudged above a year and there is a strong case for additional judges in that court.
The Supreme Court
Since the Court of Appeal opened in October 2014, the Supreme Court hears new appeals only on points of law of general public importance or where it decides that the interests of justice warrant a Supreme Court appeal. All new appeals involve a leave application; the Supreme Court itself certifies whether an appeal meets the threshold and can be heard - if it does not, leave is refused. This means the Supreme Court now concentrates on the cases of greatest significance, where its decision is likely to have systemic effect or significant effects far beyond the parties to the individual case.
When the Court of Appeal opened, the Supreme Court transferred 1,350 pending appeals to the Court of Appeal, but retained 821 “legacy” appeals. The Supreme Court has, where possible, sat in two panels since 2014 to work through “legacy” appeals which did not involve issues of general public or constitutional importance (which merit a panel of five or seven judges). By doing so, it disposed of 708 appeals in 2014 and 447 in 2015.1 The older appeals - and the problem of waiting times - will be concluded by the end of 2016.
The Supreme Court is also keeping pace with new leave applications. Having received 94 applications for leave to appeal in in all of 2015, it received 116 leave applications up to the end of August 2016, but it decided 114 such applications in that eight month period.2
The Court of Appeal Act 2014 gave enhanced case management powers to the Supreme Court and Court of Appeal. Current statistics show that these powers were necessary and are being used effectively. The new business of the reformed Supreme Court is proactively case managed under the direction of the Chief Justice throughout the process, resulting in both the clearing of the backlog and the expedition of new cases in a much shorter time than expected.
In 2017, new Supreme Court appeals are generally expected to be completed within six months if leave to appeal is given and the case goes to full hearing. Where leave is refused, the timeframe will obviously be shorter. While very complex appeals may take longer, these are projected to be completed in less than 12 months.
The elimination of a five year backlog in just two years is an astonishing and unacknowledged success story and a vindication both of the necessary reforms in 2014 and the work of the Supreme Court judiciary and staff subsequently, without additional resources.
The Court of Appeal
The Court of Appeal faced Herculean challenges when its doors opened on 29 October 2014. Its immediate caseload comprised:
- the continuing stream of ordinary appeals from the High Court which do not now qualify for the Supreme Court;
- the 1,350 pending appeals transferred from the Supreme Court; and
- in effect, another 660 criminal appeals inherited from the former Court of Criminal Appeal.
This created the dual challenge of working to clear “legacy” appeals while processing new appeals without unreasonable delay. Because of the number of judges currently assigned, the Court of Appeal generally sits in two panels, one hearing civil and one hearing criminal appeals.
For civil appeals, the Court of Appeal adopted a system of parallel listings for initial directions (case management) hearings for both new appeals and transferred legacy appeals. In 2015:
- new expedited appeals3 were usually listed for directions within four weeks of lodgment (urgent appeals, including habeas corpus, bail, extradition and child abduction cases are accommodated at shorter notice through additional urgent sittings where necessary) and for hearing eight or nine months from lodgment;
- new ordinary appeals were usually listed for directions within seven weeks of lodgment and for hearing eight or nine months from lodgment;
- “legacy” appeals were listed for directions in batches as the appeal papers were processed, and were usually listed for hearing eight or nine months from the directions listing.4
However, by November 2016, the waiting time for hearing had increased to 13-14 months, though this remains a remarkable improvement on the position that prevailed as recently as 2014.
In its first full year of operation in 2015, the Court of Appeal completed 750 appeals.
While the new court was regarded by Irish legal professionals as “exceeding expectations” and “improving Ireland’s international reputation”,5 doubts were raised about whether the court has enough judges to fully address the legacy and new caseload. The judiciary quickly recognised that the Court of Appeal would benefit from additional judges to allow two civil appeal panels to sit.6 Such recommendations should be given considerable weight, because they are based on statistical analysis of case throughput, not merely on impression. Also, aside the prejudice to parties of waiting longer than they should, the State is at risk of claims under Article 6 of the European Convention on Human Rights if cases are not brought to a timely conclusion. The net overall reduction of appeals pending in the Court of Appeal during 2015 of 187 appeals was regarded by some as implying that it would take a decade to clear the “legacy” backlog,7 though this suggestion is hotly disputed.
Incontrovertibly, the 2014 reforms have slashed waiting times for appeals. Concerted work, including much longer sitting days, has massively reduced the “legacy” backlog. Bringing quicker finality to litigation is better and cheaper for litigants. The 2014 reforms also removed the former menace of tactical appeals, where unsuccessful parties made unmeritorious appeals hoping to pressurise the winning party to make concessions to settle the case to avoid waiting years to win the appeal. The recalibration of the system has been effective, but there are potential signs that the Court of Appeal is stretched in its current size. To avoid any regression, it is important that the waiting times, especially for civil appeals, are carefully monitored. If these reach unacceptable levels, extra judges must be appointed to facilitate a second civil panel in the Court of Appeal.
- Courts Service News, October 2016
- Courts Service News, October 2016. Leave applications are, very unusually for Ireland, determined on paper in the first instance, so can be processed quickly
- Categories of appeal defined by rules of court (Order 86A, rule 7, RSC) considered suitable for fast-track appeals
- Written answer to Parliamentary Question 23008/15 by Minister for Justice and Equality, 16 June 2015
- Smith and Williamson, Survey of Irish Law Firms, 2015/16, page 10
- “New Court of Appeal seeks more judges to reduce legal delays”, Irish Independent, 27 November 2015. Such a request is not unreasonable in a context where Ireland was found to have the lowest number of judges per 100,000 inhabitants of 47 countries examined by the European Commission in 2010; the ranking is unlikely to have improved significantly since
- “Court of Appeal backlog ‘could take over a decade to clear’”, Irish Times, 19 September 2016
This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.
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