24th February, 2020
In a recent interview , Irish law’s centre of gravity is moving online – slowly but surely – says Chief Justice Frank Clarke.
The chief justice wants the legal profession to not just modernise, but to innovate and embrace the digital era. In fairness, he’s leading by example, scrolling through his smartphone camera roll like a pro.
“I’m not bad for a person of my age,” he concedes, and offers that he is reasonably tech-minded.
He reveals that the Supreme Court has its own WhatsApp messaging group, called ‘The Supremes’.
Modern methods of communication are marvellous, he agrees, once one is not ‘too’ careless about what is said on them. But therein lies a paradox, because expanded means of communication are a trap for the unwary.
The chief justice ponders the blurred lines between what is public and what is private in the digital era. The distinction has not yet been properly drawn, he feels, given the prevalence of public shaming over privately expressed thoughts.
“Because some bits of social media are public, people don’t yet make the distinction between what is public and what is a private conversation. If you say something privately, then it is private.
“In the past, it would have been regarded as unconscionable to go reading your friend’s private letters in their bedroom because you happened to be there, so why is it any different now?
“If they went on about something in public, down at the local hall, you could tackle them. Opinions that might have been aired late at night in the pub to one person are now being published to everyone in the country.”
On the growing menace of unguarded online commentary on matters before the courts, sometimes from elected public representatives, the chief justice says he has taken a limited step – but the only one that is within his direct control – which is to ban direct comment from a courtroom.
“If there’s to be any wider control over online commentary, it really would require wider legislation. But I think there are risks, particularly to jury trials. The professional legal media know the rules.
“The same doesn’t necessarily apply with amateurs, or people with an agenda. It is probably something that may well need legislation. The judiciary can’t do it by themselves.
“It needs legislation, because we can control what happens inside the courtroom; but we can’t control what happens outside, without a law. If someone goes home and tweets at night, there isn’t much we can do about it.”
The chief justice believes that instant takedown orders from a court would be one effective step, with potential penalties for serious breaches. It’s part of a wide-ranging problem though, he says.
Need for more judges
“I think it’s fair to say that we would all feel that there aren’t enough judges in Ireland, certainly in the trial courts.
“Happily the Court of Appeal has got six extra judges recently, and that should be enough to solve their problems. And the Supreme Court is fine for numbers. But I think that the three courts that hear substantive cases, I would have thought, are all understaffed.
“If you look at the number of judges per head of population in Ireland compared with any other country, we’re at the very bottom end of the scale.
“I have been trying to persuade Government to set up a working group to take an objective look at the numbers we need, not just now, but into the medium term. I still remain hopeful that that will be done – I think it will be done.”
Why such a dearth of judges?
“Maybe for historical reasons – the population fell under three million in the late ’50s. It’s now nearly five million. Also, we are living in a more complex society, so that tends to generate more litigation. Some of the litigation is, of itself, more complex and, therefore, will take longer.”
While a combination of all of those factors has significantly increased the need for judges, he believes that pay and conditions are adequate to attract the necessary talent.
“There have been a lot of very good appointments to the superior courts in recent times, so I think it’s hard to argue too strongly that pay is working as a deterrent,” he says.
While he expects a reasonable influx of cases here, post-Brexit, he cautions that Ireland is reasonably small, and London is not going to stop being a major centre for international litigation just because of Brexit.
“There may be some elements of the business that may want to remain within the EU. A small share of what London has would be significant in Ireland’s context.”
He reckons that Irish people are slightly above average in their appetite for litigation, comparative to other jurisdictions, and muses that this could be partly the result of a historic feeling of being left on the outside of the State and institutions.
“We need creative ideas for discouraging people who don’t really need to go to a court to find a solution to their issues.”
This will give the courts more time to deal with their core business, he believes. “We would need fewer judges if we had more ways of diverting people away from unnecessarily going to court.”
Access to justice
As part of his vision for the next century for Ireland’s courts, the theme of improving access to justice is particularly close to Frank Clarke’s heart.
“You can have great laws and great judges and fine lawyers, but if the system doesn’t reasonably allow people to access it, then it isn’t really much use,” he says.
“There are a number of strands, and not all of them are within the control of the judiciary.”
“The Courts Service has adopted a major vision, which will involve a significantly increased use of IT, both in administering the courts, filling documents, and in presenting evidence. We would like to think that that will make courts a lot more efficient and easier to use, both for practitioners and their clients – and therefore cheaper.
“Slowly but surely, the centre of gravity of everything that happens in the courts is going to go online,” he predicts. “People are going to have to start using it.”
Courts’ information technology is quite ancient, because recession cutbacks meant the tech budget more than halved in the deepest recession from 2009-12.
“It became a sticking plaster job, to keep the show on the road,” he says.
But the hiatus may have yielded some advantages, he concedes. “We are a long way behind, but we can also see what works – and what hasn’t worked – in other countries.
“Some of the Australian states have gone almost totally digital, in a fairly quick period of time. And it seems to have worked, so we’ve been taking advice from them.
“It’s not rocket science, but you need systems that are secure and can be worked easily by the people interacting with them – that give added value,” he says.
“The only point in doing this is if it creates efficiencies for everyone concerned,” he adds.
As regards the new Personal Injuries Committee, he comments: “I have emphasised how it is independent of everyone, including me, and I think, because of that, it should be allowed to go about its work, and not be interfered with or ‘strong-armed’ by anyone – even me!”
And in relation to the need for more civil legal aid, he says: “Every year in the budget, there are many mouths wishing to be fed. When you’re competing with people on trollies in hospitals or schools, or even with more policemen on the beat, it’s sometimes hard to win the argument, but I do believe there’s a strong case for an increase in civil legal aid. Criminal legal aid is fine, it works well, but civil legal aid is the poor relation, and it deserves better.
“Obviously people with plenty of money can go to court – and sometimes people with no money, where there’s no risk of a practical costs order being of any relevance, and who can persuade lawyers to take their case, either on a pro bono or no-foal, no-fee basis, and have, perhaps, greater access than people who have something to lose.
“But it’s the people in the middle who don’t have enough money to pay [for court], but who have a lot to lose…
“I don’t think you’re ever going to have a perfect system, but it’s allowing people who may well have rights that could be enforced in court to have a reasonable chance of doing that – that has to be the aim of everything.”