The Gazette 1987

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GAZETTE JULY/AUGUST 1987
In
this
Issue
Viewpoint
Practice Notes
In Brief
177
181
185
Investor Protection
Doing Business in Ireland 189
Professional Information 201
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GAZETTViewpoint
Civil L i t i ga t i on —
a Case f or Change?
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
INCORPORATE D
LAWSOCIETY
OF IRELAND
Vol.81 No. 6 July/Aug . 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