The Gazette 1987

GAZETT Viewpoint Civil L i t i ga t i on — a Case f or Change?

GAZETTE

JULY/AUGUST 1987

INCORPORATE D LAWSOCIETY OF IRELAND Vol.81 No. 6 July/Aug .

In this Issue Viewpoint

1987

of a hierarchic system of courts is equally valuable. The conclusion need not necessarily be reached that integration is either necessary or desirable, but an examination of why particular cases are allocated to particular levels of court is useful. The principal basis of alloca- tion is, of course, financial and, while it might be argued that the significance of a claim for a few hundred pounds is as great to a person of modest means as one of twenty thousand pounds or more to a wealthy person or organisa- tion, it would be difficult to argue that the High Court should be the forum for resolving such a claim. The total input of time by all those involved in the case would be out of proportion to the amount involved. In fact, the triple-decker nature of our system may already provide the most suitable solution, with the Circuit Court providing a reasonably accessible venue for a wide spread of claims at a cost well below that of the High Court, yet providing time for a more careful examination of the issues than is possible in the District Court. It is, however, when we look at the allocation of specialist areas of law among the courts that ques- tions may be raised about our pre- sent system. Many landlord and tenant claims are statutorily directed to the Circuit Court. The rateable valuation of the property (not per- haps the most useful of guidelines) determines whether other landlord and tenant disputes are to be heard in the Circuit or High Court. There seems much to be said for abolishing this artificial distinction and giving general jurisdiction to the Circuit Court to determine all landlord and tenant matters. On the other hand, it is not at all clear that all matters involving limited companies need necessarily come within the purview of the High Court. There are applications which have to be made from time to time in relation to companies of (Contd. on p. 177) 175

Investor Protection

177

The attention given to the objec- tions by the Judges and the Bar in England to proposals from the Lord Chancellor's department for res- tricting vacations and lengthening the sitting hours of courts has obscured some of the other more interesting proposals contained in the Lord Chancellor's Civil Justice Review published earlier this year. Two proposals in particular are deserving of more careful consid- eration, one that courts should monitor the progress of cases more rigorously and the other suggesting the integration of County (rough equivalent of our Circuit) and High Courts in one system. The tradition of the English judicial system has been that the courts are there to provide a forum for the conduct of civil litigation for the convenience of the parties, with a Judge acting as a referee. If the parties do not wish to pro- ceed urgently with their litigation, then it is only when the case is perceived by the court administra- tion to be clogging up the files that the parties will be required to either pursue or abandon the matter. Un- fortunately, this approach may lead to a less than firm attitude being adopted by the courts in cases where only one of the parties (not always the defendant) is anxious to avoid a case coming to trial. It is notorious that settlements in a great many cases can only be achieved once there is an imminent danger of the parties having actually to appear in court. The proposal that the courts should take over the act of monitoring of cases once they have been initiated is one which has merit. The knowledge that the courts were monitoring the progress or lack of progress of cases might, of itself, be sufficient to encourage parties, and their lawyers, to pursue proceedings more actively. The questioning of the existence

Practice Notes

181

In Brief

185

Some unusual periods of Limitation

186

Doing Business in Ireland 189

Temporary and part-time employees

191

Correspondence

199

Professional Information

201

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Executive Editor: Mary Buckley

Editorial Board: Charles R. M. Meredith, Chairman John F. Buckley Gary Byrne Daire Murphy Michael V. O'Mahony Maxwell Sweeney Advertising: Liam 0 hOisin. Telephone: 305236 307860 Printing: Turner's Printing Co. Ltd., Longford. The views expressed in this publication, save where otherwise indicated, are the views of the contributors and not necessarily the views of the Council of the Society. The appearance of an advertisement in this publication does not necessarily indicate approval by the Society for the product or service advertised. Published at Blackhall Place, Dublin 7. Tel.: 710711. Telex: 31219. Fax: 710704. *