The four-year backlog at the Supreme Court is an "unsustainable situation" with untold costs for society and the economy, Chief Justice Susan Denham has said.
Speaking in advance of next Friday’s referendum on a Court of Appeal, Judge Denham stressed that the Supreme Court was one of the busiest courts of its kind in the world, receiving 10 times more appeals than when the Constitution was adopted in 1937.
Voters will decide next Friday whether or not to establish a new appeals court between the High Court and Supreme Court. The proposal is a response to the bottleneck at the apex of the courts system, where there was a 21 per cent increase in appeals lodged last year. Judge Denham said 605 cases were filed at the Supreme Court last year, and 400 so far this year.
“Such numbers have caused delays in the Supreme Court - delays of a magnitude which are a real difficulty at present, with cases waiting four and a half years for a hearing… This state of affairs is unsustainable,” she said in a speech in Limerick this afternoon.
Judge Denham stopped short of advocating how people should vote in the referendum, saying it was necessary for the maintenance of the separation of powers that she not enter a political debate.
She added, however, that it seemed incumbent on her as chief justice and as head of one of the three branches of government “to in some way set out the context in which we operate and within which people are making their decisions.”
Unlike equivalent courts in other countries, the eight-judge Supreme Court hears appeals in all types of cases from the High Court, not only those with a constitutional element. Given that there was no “filtering system”, Judge Denham said, it was under huge pressure and had become “one of the busiest Supreme Courts in the world.”
In 2011, the Court disposed of 190 appeals with orders and written judgments. In 2012 this increased to 258.
“To emphasise just how busy we are, we can contrast this with the nine-judge Supreme Court in Washington, which gave judgments in 64 cases in 2012, or the twelve-judge Supreme Court in London, which gave judgments 77 cases, and the nine judge Supreme Court in Ottawa, which gave judgments in 83 cases.”
The Government’s proposal for a new court draws on the 2009 report of the Working Group on a Court of Appeal, which was chaired by Judge Denham - then an ordinary member of the Supreme Court.
In an apparent response to suggestions that the delays could be reduced by reform of the Supreme Court’s work practices, Judge Denham said the four-year backlog has grown in spite of new case management arrangements, such as written submissions, special lists and control of court time.
“However, as the Supreme Court of carrying out both the function of a Court of Appeal and a Supreme Court, the time for oral argument cannot be so limited as to infringe the litigant’s right to a fair trial,” she said.
In other countries, hearing times in the Supreme Court are limited more severely. “This is because, for example, in the USA, these cases have already had an appeal hearing before a court of appeal,” Judge Denham said. “Only the net legal issue of importance is before the Supreme Court.”
The chief justice said the Oireachtas and Government, by drafting and passing the legislation on the Court of Appeal, had "invited us all as citizens to re-imagine the constitutional framework of our courts system - to consider an investment in our constitutional infrastructure, to enable the superior courts work better to guarantee access to justice for all - strong or weak, rich or poor, individual or institutional."
