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GAZETTE
SEPTEMBER 1980
Is Your Barrister Really Necessary?
G.J.A. Sheean, A.C.I.I.
(Text of a paper read to the Law Society Annual
Conference, 1-4 May, 1980)
"Is Your Barrister Really Necessary"
Ere I go into Court I will read my brief through
(Said I to myself — said I)
And I'll never take work I'm unable to do
(Said I to myself — said I)
My learned profession I'll never disgrace
By taking a fee with a grin on my face
When I haven't been there to attend to the case
(Said I to myself — said I)
(Iolanthe — Gilbert & Sullivan)
These admirable sentiments were expressed in song by the
Lord Chancellor in Gilbert & Sullivan's opera Iolanthe.
Although written long before the turn of the century,
much of W.S. Gilbert's satire still seems apt when
translated into present day terms.
Before examining the function of Counsel however, it is
necessary to look a little closer at the operation of our
Courts and here we find that the list of Jury Actions has
reached massive proportions. The present delay in Dublin
is approx. 20 months from the setting down of the Action
to the date of the Trial, and in Cork the period is not
much different. Later I will suggest that Solicitors
contribute to a significant degree to this backlog but first,
I would like to examine other causes.
The Postal Strike in 1979 did nothing to alleviate the
situation but undoubtedly a major factor was, and still is,
the failure of the Department of Justice to implement
legislation to increase the level of jurisdiction of the
Circuit Court. This has remained at £2,000 since 1971. It
s h o u ld
be
r ememb e r ed
h owe v e r,
t h at
the
recommendations which gave rise to the setting of the
limit at that time, were those contained in the 5th
Interim Report of the Committee on Court Practice and
Procedure. That Report was published on the 20th April
1966. There are some indications that the limit of
jurisdiction of the Circuit Court will shortly be increased
to £15 , 000 and that of the District Court to £2,500.
Whilst this figure of £ 1 5 , 0 00 in the Circuit Court is
somewhat more than was recommended in the 20th
Intermim Report of the Committee, this Report was in fact
submitted on the 1st August 1978. If these new limits are
implemented, they will only be effective in the short term
unless there is a regular updating to keep pace with
inflation.
To cope with the backlog which I have described,
presiding Judges have adopted the expedient of listing
substantial numbers of cases for Hearing each day. In
Cork last January, as many as 20 Jury Actions were
listed for Hearing before two Judges each day. This often
resulted in a state of near chaos. This procedure entirely
ignores the convenience of litigants, witnesses, Jurors and
Solicitors but needless to say, it operates entirely to the
financial benefit of Counsel. It is sad to note that Solicitors
appear to have no voice in the Courts by way of protest
and appear to be unable to make representations to the
Judge in regard to such listings.
The following extract from a letter which I received
recently serves to highlight the problems facing litigants.
"This case was first listed for the previous Thursday
and not reached. It was about to start on Friday but
Judge X would not take it because it was an "All
issues" case and could not be guaranteed to finish
by 2.30 p.m. when he wished to depart for Dublin.
When we got down to Hearing on Monday I
discovered it was placed not first but fourth in the
list and what was worse, the case behind it was
taken first because there were witnesses from
England. That case ran in one Court and A v. B in
the other and we would have been back a fourth day
had it not settled. Accordingly, the Plaintiff
accepted the sum of £ 5 , 0 00 because the Costs were
getting out of all recognition to the size of the
claim".
The pressure to settle in circumstances such as I have
detailed, is severe and one must question if justice can be
done between the two parties, under such conditions. The
position of the Solicitors is an extremely difficult one as he
is faced with having to placate not only an angry Client
but also restive witnesses. Whilst delays can occur in the
best regulated Courts, massive listings such as I have
described cannot really be acceptable to responsible
practitioners.
One cannot examine the operations of the Courts
without questioning the function of Juries in Civil
Actions. Whatever view one has as to the merits of the
Jury System their involvement is accepted as adding
substantially to the length of Trial. Apart altogether from
this I am firmly of the opinion that Juries have outlived
their usefulness, if indeed they ever served a useful
purpose, in Civil Actions. The original concept of a Trial
by the Peers of litigants, i.e. people who knew intimately
each party, has changed beyond recognition.
The Jury System is largely of Anglo-Saxon origin and
having adopted it we seem very slow to follow the British
in abandoning it as being unsuitable in Negligence
Actions.
I have already made mention of the Committee on
Court Practice and Procedure and this Body was set up in
1962. One of its Terms of reference was " To consider
whether and if so to what extent the existing right to Jury
Trial in Civil Actions should be abolished or modified".
Much has been said on the subject in the meantime but no
concrete proposals have emerged although there appears
to be some support at Government level for their
abolition. In my view, Juries introduce into cases, an
uncertainty which is wholly unproductive although it
must be admitted that the system at times appears to
appeal to the gambling instinct of the litigants.
One of the most humorous histories of the Jury System
appeared in the book "Windward of the Law" by Rex
Mackey S.C. I will content myself by closing this subject
by a quotation from that book "When it is considered
that the average Jury consists of 12 diverse individuals
fortuitously drawn together in an artificial association to
decide between conflicting stories upon which different
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