Category: Open Justice

The Irish Supreme Court begins to enter the television age

Still from Supreme Court Broadcast
Still from this morning’s broadcast
When the UK Supreme Court was established in 2009, with the capacity to broadcast its proceedings, I wondered when the Irish Supreme Court would follow suit, and televise its proceedings too. Today, I have the beginnings of an answer. This morning, the Supreme Court televised its proceedings for the first time, when it broadcast the delivery of two judgments. That broadcast should be available, for the next few days at least, via the RTE Player.

Chief Justice Clarke said that the move was aimed at “demystifying” the courts process, and allowing people to “see how their highest court operates”. He also described the move as a “baby step” which could lead to wider filming of the courts in the future. I hope that it will not be long before the Supreme Court routinely broadcasts its proceedings as its UK counterpart does, and there is certainly potential for the broadcast of proceedings of other courts too. The Irish Times said:

The live broadcasting of court proceedings has been discussed for years but the impetus for it has been attributed to a meeting five years ago between Ms Denham and then RTÉ deputy director general Kevin Bakhurst. Since his appointment as Chief Justice last July, Mr Justice Clarke has been keen to advance the project, and his involvement and support was a crucial factor.

This is an excellent start, but a lot more needs to be done. As Article 34.1 of the Constitution tells us, justice is administered in public. In this day and age, the broadcast of the Supreme Court’s proceedings should be the norm, and the sooner that is so, the better.

Social media, open justice, and contempt of court

Social Media iconsI have a short op-ed in today’s Irish Independent, on the topic of contempt of court by social media, pointing out that there’s a fine line between commenting on and prejudicing a trial (registration required).

Here’s a rather longer version, with a few relevant links:

The law on contempt applies equally to all media, offline and online

Social media coverage of criminal trials raises profound constitutional issues, and may hasten legislation on contempt of court

Justice shall be administered in public, according to Article 34.1 of the Constitution. The full glare of a public hearing enables everyone to know that justice is being administered fairly, and impartially, and according to the evidence. It allows the press and the public to report on, to scrutinise, and to comment upon, the workings of the law.

Every person facing a criminal charge is entitled to a fair trial, according to Article 38 of the Constitution. So commentary that gives rise to a substantial risk either of serious prejudice to, or of prejudgment of, an active trial, can amount to contempt of court. This can be dealt with either by the judge during the trial itself (by charging the jury to ignore the comments, or penalising the commentator, or – in rare and extreme cases – stopping the trial, or some combination of these), or by a case taken by the Director of Public Prosecutions against the commentator after the trial.

There can be a fine line between reporting and commenting on an active trial, and prejudicing or prejudging it. (more…)

Court reports and defamation

Criminal Courts of Justice, DublinBefore Christmas, the Attorney-General called for a debate on the question of whether reports of court proceedings should be actionable in defamation only if there is proof of malice.

Putting her money where her mouth is, she has now referred the matter to the Law Reform Commission (Irish Legal News | Irish Times).

A spokesperson for the Law Reform Commission told Irish Legal News:

I can confirm that a referral by the Attorney General has recently been made to the Commission pursuant to section 4(2)(c) of the Law Reform Commission Act, 1975 [also here] to examine and research matters relating to defamation law and court reporting.

The Irish Times adds that Prof Donncha O’Connell, Head of the School of Law at NUI Galway and a Commissioner at the Law Reform Commission, will head up the examination.

It is a fairly narrow issue; and if, after consultations, the Commission concludes that there is indeed a case for reform of the law of defamation as it relates to court reporters, then it will require only a small number of amendments to the Defamation Act 2009 (also here) to achieve it.

Reform of defamation – 1 – court reports

Criminal Courts of Justice, DublinThe Attorney General, Máire Whelan, yesterday called for a debate on the question of whether reports of court proceedings should be actionable in defamation only if there is proof of malice (Irish Independent | Irish Times | RTE). She made her call as part of her comments marking the retirement of the outgoing President of the High Court, Mr Justice Nicholas Kearns. Rather predictably, an Irish Independent editorial praised her “timely and insightful address” and her “welcome and refreshing” observations, bemoaned “telephone number” legal fees and “massively punitive” damages awards, and argued that a “review of defamation laws is long overdue”.

A long-running review of defamation was concluded by the Defamation Act, 2009 (also here), which came into force on 1 January 2010. Section 5 (also here) of the Act provides

(1) The Minister shall, not later than 5 years after the passing of this Act, commence a review of its operation.

(2) A review under subsection (1) shall be completed not later than one year after its commencement.

According to the definitions in section 2 (also here), the Minister in question is the Minister for Justice and Equality. Although the deadline in section 5 has passed, a review does not yet seem to have been commenced. But section 5(1) is directive, and mandatory: the Minister “shall” do so. It will be interesting to see if the issue features in any of the parties’ manifestos for the forthcoming general election. Whether it does or not, the Minister for Justice in the next government will have to review the operation of the Act. And, as part of that process, the Attorney General’s comments yesterday will have to be taken into account.

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Access to justice when legal costs are high

Who's who in court.gifI have had occasion on this blog to repeat the old adage that justice is open to all – like the Ritz Hotel. I was reminded of it by two headlines I saw this morning.

The first is from today’s Irish Times:

Judge says courts ‘fearfully expensive’ and ‘accessible to few’

The court system is “fearfully expensive”, “alien” and “truly accessible to increasingly few”, a High Court Judge has said. The courts were a forum that should be engaged only as “a last resort”, Mr Justice Max Barrett added. … “Almost a hundred years after the opening salvos that led to the creation of our present Republic, we have now an expensive court system that remains alien to many and truly accessible to increasingly few.”

Update: Barrett J made these remarks in Traynor v Guinness UDV Ireland [2015] IEHC 732 (24 November 2015) [1], permitting the case to proceed, but recommending that the parties resolve the matter “collaboratively if possible, by mediation if not, by expert decision if necessary and, only as a very last resort, in this fearfully expensive forum” (id).

The second is from the Brief (a daily email newsletter from the Times, which will be made available later in the week here):

We can’t afford lawyers, says public

Lawyers and legal advice are well beyond the budgets of ordinary people, a survey published this week has found.

Some 70 per cent of respondents to research conducted by Citizens Advice said they would not be able to afford a lawyer to advise on a problem or dispute. Only about 10 per cent were confident they could stump up the cost of legal fees.

Other conclusions from the Report are that 1 in 7 don’t have confidence in the justice system, that low levels of support and advice are putting off some people from seeking to solve their problems, that more and more people are going to court without a lawyer, that negative experiences are leading to negative opinions of the justice system, that people’s bad experiences and perceptions of justice are putting them off using it, and that, overall, only 2 in 5 (39 per cent) people believe that the justice system works well for citizens. Also published today is a Report Card on Barriers to Affordable Legal Help in the US, which makes very similar points. The American Bar Association has established a Commission on the Future of Legal Services to “propose new approaches that are not constrained by traditional models for delivering legal services and are rooted in the essential values of protecting the public, enhancing diversity and inclusion, and pursuing justice for all”.

The recent Canadian Bar Association report on its Legal Futures Initiative – entitled Futures: Transforming the Delivery of Legal Services in Canada (pdf) – made a series of recommendations around flexibility in business structures, including the adoption of alternative business structures, and new models for legal education. In Australia, recent reforms in New South Wales and Victoria are intended to create a common legal services market, underpinned by a uniform regulatory system, to promote efficient and cost-effective administration of justice. Canada and Australia are on a journey down the same road travelled recently in the UK, where the destination was the Legal Services Regulation Board established by the Legal Services Act 2007.

Also on that road is the Legal Services Regulation Bill. If it improves the problems identified by Barrett J, by reducing legal costs, then its (long delayed, but now imminent) enactment cannot come soon enough. And it will be a necessary endeavour. Confidence in the administration of justice is at the heart of the rule of law. Access to justice is a constitutional fundamental (Greenclean Waste Management v Leahy (No 2) [2014] IEHC 314 (05 June 2014) [23] (Hogan J, upholding after the event legal costs insurance as serving important needs within the community by facilitating access to justice for persons and entities who might otherwise be denied it). Of course, the Bill (heavily amended, and now far more modest than the position recommended in Canada, or obtaining in the UK, New South Wales, and Victoria) on its own will be an insufficient remedy for these problems, but it is a start it might at least be a good start, and it may even be half the work. But that is all that it will be. Far more will need to be done. Much will depend on the Legal Services Regulatory Authority established under it. For that, we shall have wait and see. And, meantime, our expensive court system will remain alien to many and truly accessible to increasingly few.

McKillen’s claims against the Barclay Brothers near their end

The Connaught Hotel, London, via WikipediaThe long-running saga in McKillen v Misland (Cyprus) Investments Ltd seems to be nearing its end. I have already discussed the stage of the case which concerned open justice, and the first instance judgment of Richards J on the substantive issue (see [2012] EWHC 2343 (Ch)). The aim of this post is to note both the final outcome of the substantive action and the ultimate resolution of the dispute in London (though an Irish offshoot may still be ongoing).

The plaintiff, the formerly reclusive but now well known Irish property developer, Mr Paddy McKillen, owned 36.2% of the shares in Coroin, which owned and managed three leading hotels in London – Claridge’s, the Connaught (pictured) and the Berkeley. Derek Quinlan owned 35.4% of the shares. In January 2011, a company associated with Sir David and Sir Frederick Barclay bought Misland (Cyprus) Investments Limited, (Misland), which then owned 24.7% and ultimately owned 28.36% of the shares. During the remainder of 2011, the Barclays and associated companies sought to take control of Coroin. McKillen alleged that the steps they took amounted to a breach of pre-emption in provisions in a shareholders’ agreement which required shares to be offered to other shareholders before being sold elsewhere, and that the pre-emption provisions were also triggered by charges over Mr Quinlan’s shares to secure Mr Quinlan’s bank borrowings becoming enforceable. He also alleged that the steps taken by the Barclays in 2011 (including the purchase of Quinlan’s loans from Nama, giving them effective control over his shares) amounted to a conspiracy to cause loss by unlawful means and to breaches of contractual duties of good faith. He further alleged that three directors appointed by the Barclays were in breach of their duties to the company.

At first instance ([2012] EWHC 2343 (Ch) (10 August 2012)) Richards J dismissed McKillen’s claims. He held that no agreements were made with Mr Quinlan which triggered or breached the pre-emption provisions and that the security over Mr Quinlan’s shares had not become enforceable. He also held that there were no breaches of the duties of good faith in the shareholders’ agreement, and that the directors appointed by the Barclays did not breach their duties as directors of the Company, save in one respect which caused no loss to the company or prejudice to Mr McKillen as a shareholder.

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Open justice and access to court documents – a (lightly updated) footnote

Historical court documents via St. Louis Circuit Court Historical Records ProjectArticle 34.1 of the Constitution provides that “Justice … shall be administered in public“. By way of footnote to my earlier post on Open justice and access to court documents comes the decision of Hogan J in Allied Irish Bank plc v Tracey (No 2) [2013] IEHC 242 (21 March 2013). The applicant had been mentioned in affidavits filed by the defendant in the main action, and took this motion to have access to those affidavits. Hogan J held in his favour, and emphasised that he was entitled to the affidavits as of right and not necessarily on foot of an application to court:

[21] In any event, I do not consider that the Court’s permission was required for this purpose. These allegations were ventilated in civil proceedings in open court and, as I have already found, the affidavits were effectively openly read into the record of the court. Given that these proceedings were in open court pursuant to the requirements of Article 34.1 of the Constitution, it follows that any cloak of confidentiality or protection from non-disclosure vanished at point. …

[22] The open administration of justice is, of course, a vital safeguard in any free and democratic society. It ensures that the judicial branch is subjected to scrutiny and examination and helps to promote confidence in the fair and even handed administration of justice. Any system of secret court hearings could pave the way for judicial arrogance, overbearing judicial conduct and abuse.

[23] In these circumstances the public are entitled to have access to documents which were accordingly opened without restriction in open court. This is simply part and parcel of the open administration of justice which the Constitution (subject to exceptions) enjoins. …

This is an extraordinarily significant decision, placing on a constitutional footing what the Court of Appeal in R (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420 (03 April 2012) recognised as a fundamental principle of the Common law, and expanding what is at present available pursuant to Minister for Justice, Equality and Law Reform v Information Commissioner [2001] 3 IR 43, [2002] 2 ILRM 1, [2001] IEHC 35 (14 March 2001) interpreting section 46(1)(a)(I) of the Freedom of Information Act, 1997 (also here) (section 46 was amended by section 29 of the Freedom of Information (Amendment) Act, 2003 (also here), but not in any way that affected that decision). Moreover, Hogan J’s dismissal of “secret court hearings” calls our current system of closed refugee tribunals into question.

The public’s right of access to court documents is a very important aspect of the open administration of justice, but it has not heretofore been much exercised in Ireland. It is expected that the next draft of the Legal Services Regulation Bill 2011 will provide some practical guidance on how this very important right can be exercised. For example, it should clear up whether the public can exercise this right vis-à-vis the relevant court office (in principle, in my view, the answer to that question should be yes; though, at present, there would seem to be no such practice). Moreover, whilst the judgment itself only expressly covers documents fully opened in open court, the legislation could clarify the extent to which the public can have access to documents filed for the purposes of litigation but not opened in court.

Meantime, Allied Irish Bank plc v Tracey (No 2) has provided very generous parameters for such legislative procedures, and reinforced a constitutional right that is at the heart of the rule of law in our democratic polity.

Open justice and civil jurisdiction, in the Courts Bill 2013

Element of Photo of Four Courts By Night, by MassafelliPhotography.comThe Department of Justice yesterday published the Courts Bill, 2013, which has two main aims. The first is to increase the monetary limit of the jurisdiction of the District and Circuit Courts in civil matters. The second is to allow the press some limited access to family law proceedings.

At present, pursuant to the Courts Act, 1991 (also here), the limit for the District Court is €6,384 (formerly £5,000), and this Bill would raise it to €15,000; and the limit for the Circuit Court is €38,092 (formerly £30,000) and this Bill would raise it to €60,000 for personal injury actions and €75,000 for all other civil claims. This is long overdue, as it will mean that cases can now be heard in more appropriate courts; in particular, matters appropriate to the Circuit Court need no longer be commenced in the High Court. In such cases, there will be simplified procedures and reduced costs. I think this is an entirely sensible idea, but I have two comments. First, section 16 of the Courts Act, 1991 (also here) provides a power by which the government may by order vary these limits without recourse to primary legislation; and I hope that this power is used in future to ensure that the District and Circuit Court limits keep pace with inflation. Second, I am not convinced that bifurcating the Circuit Court jurisdiction is a good idea. Although the general jurisdiction is to be €75,000, in his statement on the Bill, the Minister justified the lower threshold for personal injuries cases as a measure “to deal with concerns relating to possible inflation of awards and a consequent effect on insurance costs”. I don’t think that it will have an effect on such awards, but I do think that it will mean that cases which should be dealt with in the Circuit Court will continue unnecessarily to be heard in the High Court.

The other main issue dealt with in this Bill relates to open justice and the in camera rule. As I have had occasion to point out in previous posts on this blog, Article 34.1 of the Constitution requires that, “save in such special and limited cases as may be prescribed by law”, justice shall be administered in public; and section 45 of the Courts (Supplemental Provisions) Act, 1961 (also here) permits justice to be administered otherwise than in public in family law matters (see especially s45(1)(b)-(c)), to protect the identity and privacy of parties and children in such proceedings where there is no good reason that such sensitive matters be published. However, to prevent the perception of undue secrecy in such cases, section 40 of the Civil Liability and Courts Act, 2004 (also here) and associated regulations (the Civil Liability and Courts Act 2004 (Section 40(3)) Regulations 2005 (SI No 337 of 2005)) allow certain people to attend family court sittings to draw up and publish reports, as as those produced by the pilot Family Law Reporting Service and the Child Care Law Reporting Project. The new Bill goes substantially further, in that it allows for “bona fide representatives of the Press” to attend such proceedings. This term is not defined in the Bill, so it will be a matter for a judge in any given case to determine whether a person is such a bona fide journalist. Of course, the Minister may make regulations similar to those under the 2004 Act to set out some criteria to aid in that determination, but he made no comment about this in his statement on the Bill.

However, this right of access is subject to a wide-ranging discretion on the part of the judge to make necessary orders to protect the identity of children or in the interests of the administration of justice. Such orders may include restricting the attendance of journalists during the hearing or particular parts of it, or restricting or prohibiting the publication or broadcasting of evidence given or referred to during the proceedings. Moreover, this overall relaxation of the in camera rule is balanced out by a specific offence of publication or broadcast of in camera matters (which, I take it, replaces the common law rules relating to contempt in such circumstances). This is all very welcome, but I am disappointed that the opportunity was not taken to go further and provide a power permitting the broadcast of (certain) proceedings, in due course.

Even if the Minister could have taken a few more steps, those that he is proposing to take are very welcome in helping to shine appropriate light in an area of the administration of justice which is not as open as it might be.