The Gazette 1996

GAZETTE

JULY 1996

The National Archives

by Kieran Conway*

With the Government appointing an

additional 17 judges without a murmur

of dissent from the opposition or

elsewhere, the argument that the system

needs more, rather than harder-working,

judges seems Anally to have prevailed.

There has been no reference this time

around to the long-standing proposal,

repeated as recently as 1990 in the Fair

Trade Commission report on the legal

profession, that the Courts instead sit for

longer hours and have more sitting days.

It wasn't always so apparently easy to

secure an extra judgeship, as papers in

the National Archives show.

In 1953, quite a debate took place -

won, in that case, by the judiciary which

got its increase. But its champion, the

then Minister for Justice,

Gerald

Boland,

had tofight for it, in the teeth of

fierce resistance from the Minister for

Finance,

Sean McEntee.

On 7 May 1953, the then President of

the High Court,

Cahir Davitt,

wrote to

the Minister for Justice. He said he was

"gravely concerned about the

congestion" in the Courts and that the

i "delays involved have been the subject

of much complaint", from, amongst

others, the legal profession who had, he

notes, made their own representations to

! the Minister.

He went on to "assume therefore that

you are fully informed as to the facts,

and that there is no need for me to refer

to anyfigures or to describe the situation

in any greater detail than I have done . . .

the volume of legal business . . . has now

become more than the Judges can deal

with . . . and that the only effective

remedy... is an increase in the number

of judges of the High Court."

In an extraordinaryfinal paragraph

Justice Davitt concluded: "I do not want

to trouble you with anything in the

nature of an argument in favour of the

Kieran Conway

proposed increase in the number of

judges. It would involve a considerable

amount of my time and for all I know

may be quite unnecessary. If, however,

there is any matter on which you would

care to have my assistance or on which

; you would like to have my views I shall,

of course, be very glad to meet your

wishes."

The matter came before the Cabinet

shortly afterwards together with a

lengthy memorandum from the Minister

for Justice and a shorter one from

Finance.

After parading the congestion figures,

both past and projected, Boland came

right to the heart of the issue: "This

prognosis (which could hardly be more

j unfavourable) is based on the

assumption that there is not going to be

any revolutionary change in the

immediate future in the practice and

procedure of the High Court and on the

belief that any other assumption would

be quite unrealistic."

I For, there could be no change "against

I the wishes of the judges and the legal

| profession", except "on the

; recommendation of some competent

authority which could show that it had

gone into every aspect of the question

and had taken evidence as only required

to be published to command general

assent."

Boland was playing for time - while

displaying his openmindedness. He had

no difficulty with the establishment of,

for instance, a committee of inquiry but

in the meantime there was business to be

done. There was "the immediate

problem" and, to this, there was no

solution other than the appointment of an

additional judge. Lesser measures were

mere "palliatives", for the "root of the

trouble is an insufficiency of judges."

As for quibbling over the additional

cost, as he knew McEntee was about to

do: "The notion that the Government

OUGHT tofind some £120,000,000 for

all sorts of miscellaneous purposes,

many of which would, by common

consent, be accorded a lower priority

than the administration of justice, but

that it OUGHT NOT tofind an extra

£4,000 or so a year to cover the salary

and expenses of an extra judge and his

crier so that litigants in one of the two

highest courts in the land may be spared

the hardship of waiting interminably to

have their cases heard is surely too

shocking to be allowed to prevail."

But it is Boland's robust defence of the

working hours and long vacation that is

extraordinary, particularly, as we shall

Í see, given his view of just a couple of

! weeks earlier.

"Incidentally", the defence began, "the

existing arrangements of the law with

respect to practice and procedure are the

subject of a lot of ignorant criticism of

I which the judges are too often the

I victims. The common belief (amounting

in some quarters to an article of faith)

! that a judge of the High Court has an

easy day and short hours is quite

erroneous. It is true that the normal

sittings are from 11 a.m. to 4 p.m . . .

But a judge's work does not end when

he leaves the Bench."

Boland then spent some paragraphs

outlining the out-of-court workload of

the judges before moving on to defend

the long vacation in similar tone.

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