An observation by the former president of the High Court, Mr Justice Peter Kelly, that only “paupers and millionaires” can afford to litigate in the court needs to be updated to “multimillionaires”, a retired judge has said.
The vast majority of citizens do not have proper access to law under the system as it currently operates, said Ms Justice Deirdre Murphy. To vindicate the rights of the citizen, it is “certainly arguable” that the State has a constitutional duty to provide a legal system that gives everyone access to the law.
In his 2018 comments, Mr Justice Kelly was pointing out that the costs of litigation effectively meant only “paupers” – because it is pointless pursuing them for any costs orders – and people with substantial financial resources can litigate in the High Court.
Addressing a large gathering of solicitors in Naas, Co Kildare, organised by Solicitors Growth, an educational network set up in 2021 to support small- and medium-sized law firms, Ms Murphy, who retired from the High Court last year, said State policies had changed the legal landscape “significantly” in the past 10-20 years and have made smaller firms an “endangered species”.
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A ruling by the Competition Authority preventing restrictions on entry to the Bar has resulted in about 2,500 barristers for whom there is insufficient work, she said. “When survival is the primary goal, the pursuit of fairness and justice will not be a priority.”
Another major factor is increasing corporatisation and commercialisation of law, she said. Law, instead of a vocation, has been reduced to a “business”, to be transacted on the basis of “billable hours”.
The “tyranny” of billable hours means young people joining big firms are under pressure from day one and unable to leave the office until they have met their billable hours quota, she said.
As a big briefer of the large firms, she asked why the State does not evaluate that work, nominate a fee for it and invite tenders. State work has increasingly been removed from smaller firms with a knock-on effect on the viability of those firms, which are the “immediate contact” for most citizens.
An example of the exclusion of smaller firms from State work was the imposition some years back of an €11 million insurance requirement for firms tendering for work from the National Asset Management Agency, she said.
Solicitors Growth should challenge the State’s briefing policy to achieve more equitable distribution of such work, she said. If smaller firms and independent barristers disappear, there will be no one left to take cases to challenge the power of the State “because the big corporate firms have no interest in doing that”.
The Ireland for Law project, promoting Ireland as a leading centre for international legal services and backed by the State, the Industrial Development Authority and big firms, has encouraged many international law firms to locate here and precipitated mergers with smaller- and medium-sized Irish firms, she said.
This international business, she said, is of “no benefit” to any Irish citizen other than a “small cohort” of top-earning barristers and solicitors.
The Government and IDA should explain how it is proposed to accommodate this business, including whether it will diminish the capacity of the High Court to perform its “core function” of upholding the law and determining and vindicating the rights of citizens.
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