Appeals Court

oscarBravo

This is the less sexy controversial referendum, but it deserves a discussion also.

From my reading, I can't see a good reason to vote against this proposal. Does anyone have any arguments against it?

carveone

oscarBravo wrote: »

This is the less sexy controversial referendum, but it deserves a discussion also.

From my reading, I can't see a good reason to vote against this proposal. Does anyone have any arguments against it?

I'd forgotten that this even existed until RTE brought it up in the 6pm news. Oh wait, they didn't even mention it, like it didn't exist. Good job RTE. That 160 quid working for me I see.

I can't see any reason to vote no to this. There seems to be a lot of High Court cases that try and appeal for the Supreme Court as a matter of course (of course, that could be media coverage of same - I've no idea what the actual percentage is). An Appeals Court in the middle of this would appear to be an absolute necessity - it seems to me that the Supreme Court is hearing issues unrelated to major constitutional issues, which I would have though was their actual function, being the court of final appeal and all. The current system takes far too long...

petronius

Any one cost how much the new appeals court would cost?
One of the selling points of the anti-seanad campaign is cost, yet no mention of it .

Why is there no debate on an issue such as this - rather than the sound bites of the seanad referendum

Wildlife Actor

It's a manpower thing.

It takes 4 years to get an appeal from the High Court heard by the Supreme Court because they're understaffed. The Irish Times series on the Supreme Court earlier in the summer said that they handle a lot more cases each year than the British Supreme Court and the American Supreme Court.

If they bring it in then the existing supreme court will only do the very important constitutional cases and they'll be theoretically the smartest cookies in the box.

Don't know how many judges but in the greater scheme of things it seems sensible.

Of course they could just appoint more supreme court judges and have them sit 2 (or 3) courts at a time.

And of course the system of judicial appointments is untouched, so merit-based appointments are accidental rather than the norm.

Robbo

oscarBravo wrote: »

This is the less sexy controversial referendum, but it deserves a discussion also.

From my reading, I can't see a good reason to vote against this proposal. Does anyone have any arguments against it?

A flyer which may be from Direct Democracy Ireland (aside: I wonder were their members consulted on this) seems to be advocating that the Court of Appeal speeding up things is a bad thing as the current long delays are keeping people in their homes as they battle the banks.

Of course they may just be doing this for the guaranteed airtime that the McKenna criteria afford them. That is provided Ben Gilroy is still available for interview during the campaign period.

pajor

My gut feeling is to vote yes.

I would hope it could make the justice system in the country far more efficient with trial turnaround times being reduced. No problem there.

On the other hand, as would only happen in this country (I have that frame of mind) it could just be another layer of bureaucracy, that duplicates something already there. An unlikely scenario I hope.

Javan

What I don't get about this referendum is why the problem cannot be solved with legislation and additional resources for the existing supreme court.

I understand that the major (stated) reason for this referendum is the silly backlog on cases to be heard by the supreme court. Clearly this must be fixed in the interest of justice. It is patently unjust to have this long delay for no reason other than a lack of available court time.

There is nothing in the constitution that limits the size of the supreme court. It could easily be expanded beyond the current seven members by legislation, and no matter how you solve the problem of the backlog you will need more judges and more space for them to operate.

... so if the problem can be solved by legislation, why are we having a referendum?

GCU Flexible Demeanour

Javan wrote: »

<...>

There is nothing in the constitution that limits the size of the supreme court. It could easily be expanded beyond the current seven members by legislation, and no matter how you solve the problem of the backlog you will need more judges and more space for them to operate.

... so if the problem can be solved by legislation, why are we having a referendum?

I have to admit, this is where I'm at with this issue too. If the issue is a resource issue, i.e. too few Supreme Court judges, I'd don't see why a whole new institution is needed.

If a new Court is needed, fine. I just don't see where the case has been made for one.

Cody Pomeray

GCU Flexible Demeanour wrote: »

I have to admit, this is where I'm at with this issue too. If the issue is a resource issue, i.e. too few Supreme Court judges, I'd don't see why a whole new institution is needed.

Because the Government recognize that while most cases coming before the supreme court are not justified as such, we do still need a constitutional court to make determinations in matters of major national importance, e.g. Article 26 references, or constitutional challenges emanating from members of the public.

Article 34 of the constitution creates the Supreme Court as a final court of appeal, therefore the government cannot legislate to stop all manner of appeals ending up there - appeals which are of interest to nobody except the parties themselves, teetotal law students, and cranks.

Therefore it makes sense to create a new court of appeal for both civil and criminal cases, and to retain a constitutional court for questions of constitutional or widespread social concern.

Almaviva

Javan wrote: »

What I don't get about this referendum is why the problem cannot be solved with legislation and additional resources for the existing supreme court.

Me neither. Or, just give the High court the power to make final decisions for cases that would be decided in the new court anyway.

Is it a job scheme for judges ?

Banjoxed

If it is the case that judges get a three month break, then I will vote No to this. Why should the people reward barristers and solicitors with more sinecures?

touts

Just listened to Morning Ireland and Alan Shatter was debating the issue with Paul Anthony McDermott.

Listening to Shatter talking down and condescending one of the most respected barristers in the country I've been reminded that I don't trust the little bollox one bit. And true to form it turns out he has tacked on other stuff (e.g. supreme court judges having to publish individual judgements rather than joint ones) to the referendum beyond the "court of appeal". It's a one Yes/No vote on all the ammendments he wants to make to the way the courts run. We cant trust him. I'm voting no.

oscarBravo

touts wrote: »

...supreme court judges having to publish individual judgements rather than joint ones...

Not my reading of it. As I understood it, it allows judges to write dissenting opinions, rather than requiring them to do so. I think this is a good thing; it can be interesting to see the different (often ideological) approaches that SCOTUS judges take to an issue.

GCU Flexible Demeanour

Cody Pomeray wrote: »

<...> - appeals which are of interest to nobody except the parties themselves, teetotal law students, and cranks. <...>

As some have said, if the appeals are truly that ephemeral, they hardly need to be entertained at all. Let alone set up a special institution to deal with them.

touts wrote: »

I'm voting no.

There will be at least two of us, so. I just don't see the compelling case for this particular proposal, and I don't understand why, of all the possible issues that we might have a referendum on, this one gets to the head of the queue.

Cody Pomeray

GCU Flexible Demeanour wrote: »

As some have said, if the appeals are truly that ephemeral, they hardly need to be entertained at all.

Ephemeral? I didn't say they're ephemeral.

I said they're cases of a very narrow interest, even where they raise novel issues of law and broach precedents. As such, they don't reach the bar required by cases that ought to be heard in Ireland's highest appellate court.

GCU Flexible Demeanour

Cody Pomeray wrote: »

<...>I said they're cases of a very narrow interest, even where they raise novel issues of law and broach precedents. As such, they don't reach the bar required by cases that ought to be heard in Ireland's highest appellate court.

I do understand that this is the contention that we are being invited to accept. But, I'm afraid, to me these points read like a collection of slogans.

Bear in mind what we're expected to accept. No-one seems to be saying these cases should not be heard in the High Court, despite their "narrow interest". So the argument is simply that, when appealed, these cases (despite the appeal seeking to reverse a High Court decision) should not be heard by the Supreme Court. They should be heard in a Court that's just above the High Court in status, and just below the Supreme Court - not, dare I say, a blindingly obvious difference. It's just adding an extra layer to the system.

We're also told that, in some instances, cases will be appealed from this new appeal court to the Supreme Court. So the total number of "appeals" in the system will increase, simply because this Amendment will introduce a new institution.

So, I'm afraid, I don't see the cast iron case for this thing. In fact, I don't really see any case for it.

Cody Pomeray

GCU Flexible Demeanour wrote: »

Bear in mind what we're expected to accept. No-one seems to be saying these cases should not be heard in the High Court, despite their "narrow interest".

That's because nobody denies that cases of very narrow interest to outsiders can belong in the High Court, so long as those cases lie beneath the High Court's jurisdiction otherwise.

The point about cases of serious national or constitutional importance is self explanatory; if they're of genuine constitutional or public importance they should be heard promptly. If they are not, then let them go onto the Court of Appeal's lists which, indeed, may be a more protracted process.

So the argument is simply that, when appealed, these cases (despite the appeal seeking to reverse a High Court decision) should not be heard by the Supreme Court. They should be heard in a Court that's just above the High Court in status, and just below the Supreme Court - not, dare I say, a blindingly obvious difference. It's just adding an extra layer to the system.

You're looking at it the wrong way around. The first point is to hurry up cases that raise serious questions of constitutional law, or questions of serious public importance.

That Court of Appeal lists will remain long is inevitable, although it may be mitigated by the appointment of more judges to the Court of Appeal, and judges being sent downstairs from the Supreme Court when the Supreme Court is not sitting.

We're also told that, in some instances, cases will be appealed from this new appeal court to the Supreme Court. So the total number of "appeals" in the system will increase, simply because this Amendment will introduce a new institution.

Only where they raise serious constitutional issues at appeal to the Court of Appeal, which again, will be only a fraction of the cases.

GCU Flexible Demeanour

Cody Pomeray wrote: »

That's because nobody denies that cases of very narrow interest to outsiders can belong in the High Court, so long as those cases lie beneath the High Court's jurisdiction otherwise.

Grand, but we could build a slogan out of that, that runs "no-one can deny that only the Supreme Court should be able to overturn a matter decided by the High Court". And we could then react with a great show of incredulity when anyone questioned that slogan. That, I'm afraid, is what the "No vote" equivalent of what the "Yes" case reads like.

Cody Pomeray wrote: »

The point about cases of serious national or constitutional importance is self explanatory; if they're of genuine constitutional or public importance they should be heard promptly. If they are not, then let them go onto the Court of Appeal's lists which, indeed, may be a more protracted process.

But, sure, this is just a scheduling matter. There's no particular reason why the Supreme Court has to hear every case in some strict chronological order. Are you saying that urgent cases have never been pushed up the list?

Cody Pomeray

GCU Flexible Demeanour wrote: »

Grand, but we could build a slogan out of that, that runs "no-one can deny that only the Supreme Court should be able to overturn a matter decided by the High Court".

No, because that wouldn't be sensible.

It wouldn't be sensible because it is a matter of almost universal agreement that there are some cases, like Art. 26 references to the Supreme Court, or Sinnott v. The minister for Education, or Crotty, which affect the Irish population at large and raise serious constitutional questions that we don't want languishing behind (or speeded up because of) a rake of house repossessions cloggin up the SC list.

Are you saying that urgent cases have never been pushed up the list?

Cases do get pushed up. The problem is, the list is so clogged that there is now even a clog of priority cases. It's a clog on top of a clog.

Some of these priority cases are serious matters, but some of them are only serious and impending because of those they directly effect; the latter should be prioritised on the Court of Appeal's lists, and the non-priority SC list often shouldn't be allowed next nor near the Supreme Court.

GCU Flexible Demeanour

Cody Pomeray wrote: »

<...>It wouldn't be sensible because it is a matter of almost universal agreement that there are some cases, like Art. 26 references to the Supreme Court, or Sinnott v. The minister for Education, or Crotty, which affect the Irish population at large and raise serious constitutional questions that we don't want languishing behind (or speeded up because of) a rake of house repossessions cloggin up the SC list.

But this isn't a valid argument, as we've established that there's no need for cases to be dealt with in some strict chronological sequence. It's actually a completely false argument; if the issue is too little capacity for the number of appeals, then its simply a resourcing matter.

Additionally, if we expect that a huge amount of repossessions will take place in the coming years, we should be aiming to handle them in a way that doesn't require appeals beyond the High Court.

Cody Pomeray wrote: »

Cases do get pushed up. The problem is, the list is so clogged that there is now even a clog of priority cases. It's a clog on top of a clog.

Again, you've simply described a resource issue. You haven't actually provided any argument that suggests why, up as far as the High Court, my "narrow" problem wouldn't be regarded as wasting Court time; but the minute I appeal from the High Court I have to be pushed into the appeal court with the rest of the hoi polloi.

Maybe we need a Slightly Higher Court to hear these cases of general interest initially; at least then I wouldn't be under the impression that the Courts are meant to be accessible to individual citizens.

To be honest, the more I think of it, this notion that your case needs to be of general interest before you can get to the Supreme Court surely undermines the freedom that the Courts are meant to be safeguarding.

stereomatic

Could somebody add poll options for what way people might vote with the following options available;

Abstain

No

Spoil

Yes

Don't know

stereomatic

I see there is a warning of duplicate posting the reason for the duplicate posting is because I was asking for poll options on both threads relating to the october 4th referenda as there are 2 things we've being asked to decide upon and there is no intention of spamming and I will not duplicate this posting and hopefully no other posting in the future

Apologies for the duplication

Banjoxed

GCU Flexible Demeanour wrote: »

But this isn't a valid argument, as we've established that there's no need for cases to be dealt with in some strict chronological sequence. It's actually a completely false argument; if the issue is too little capacity for the number of appeals, then its simply a resourcing matter.

Additionally, if we expect that a huge amount of repossessions will take place in the coming years, we should be aiming to handle them in a way that doesn't require appeals beyond the High Court.Again, you've simply described a resource issue. You haven't actually provided any argument that suggests why, up as far as the High Court, my "narrow" problem wouldn't be regarded as wasting Court time; but the minute I appeal from the High Court I have to be pushed into the appeal court with the rest of the hoi polloi.

Maybe we need a Slightly Higher Court to hear these cases of general interest initially; at least then I wouldn't be under the impression that the Courts are meant to be accessible to individual citizens.

To be honest, the more I think of it, this notion that your case needs to be of general interest before you can get to the Supreme Court surely undermines the freedom that the Courts are meant to be safeguarding.

Three months holiday and they want more judges appointed? They have the resources themselves without getting the citizens of this state to give them more gravy to solve their perceived problem.

BinaryFinary

Robbo wrote: »

A flyer which may be from Direct Democracy Ireland (aside: I wonder were their members consulted on this) seems to be advocating that the Court of Appeal speeding up things is a bad thing as the current long delays are keeping people in their homes as they battle the banks.

I think it is a good idea but I question the timing. At the moment there are over 100,000 distressed mortgages in Ireland and a yes vote will allow the banks to apply more pressure on these distressed borrowers. It seems to me that Europe want Ireland to clear the distressed loans from it banks quickly. It looks to me that the government are following this line in order to accelerate the recovery. The cost will be borne by the Irish citizens who are in mortgage distress. The government seems quite happy to have collateral damage to appease Europe quickly.

The banks seem to have been lobbing government on this last year and earlier this year they allowed the central bank to put plans in place on the mortgage issue.

Quote Mortgageholders.ie “The latest plan lacks any prescriptive solutions and allows banks to determine the nature, the extent and the application of all solutions while setting the terms and conditions without any supervision. The plan delivers no improvement in transparency of solutions to be offered to borrowers by the lenders and provides no protection for borrowers against potential abuses by the lenders of their powers. “

https://www.mortgageholders.ie/blog/posts/government-and-central-bank-mortgage-plan-throws-borrowers-to-the-wolves

As I said above I question the timing on this issue. It feels a bit cynical. Now this mortgage issue does not affect me personally but I know as i’m sure you all do, know someone that it affects.

I haven’t delved into any other aspects of the Appeals court but on this issue i’m in the “No” camp for now until the mortgage problem is resolved. I think we need to force the government to stand up for its citizens even if they have no intention of doing so as a result of European pressure.

What do you folks think?

GCU Flexible Demeanour

BinaryFinary wrote: »

<...>
I haven’t delved into any other aspects of the Appeals court but on this issue i’m in the “No” camp for now until the mortgage problem is resolved. I think we need to force the government to stand up for its citizens even if they have no intention of doing so as a result of European pressure.

What do you folks think?

If I thought that a "Yes" vote would accelerate action with respect to mortgage arrears, including repossessions, I would vote "Yes".

Can I also make explicit that I see no connection between a "No" vote and the contention that borrowers should not be held responsible for their own debts. When you say It seems to me that Europe want Ireland to clear the distressed loans from it banks quickly. It looks to me that the government are following this line in order to accelerate the recovery. The cost will be borne by the Irish citizens who are in mortgage distress. , I actually find it hard to figure out who, apart from mortgage holders, should bear the costs relating to mortgage arrears.

I mean, it's inevitable that the taxpayer (ultimately) will face some costs with respect to irrecoverable losses. But it seems perfectly right to me that folk who can't afford to repay their mortgages get their houses repossessed, in exactly the same way as folk who can't pay their rent get evicted.

So, for me, this is a red herring.

AndonHandon

What improvements will be made to the Supreme Court appeals process? What is the cause of the backlog? If there are no changes to the current appeal process being implemented then I would see this as throwing money at a problem to make it go away. The number of appeals is going to increase dramatically as a result of a perception that it is a more efficient process.

BinaryFinary

GCU Flexible Demeanour wrote: »

If I thought that a "Yes" vote would accelerate action with respect to mortgage arrears, including repossessions, I would vote "Yes".

Can I also make explicit that I see no connection between a "No" vote and the contention that borrowers should not be held responsible for their own debts. When you say It seems to me that Europe want Ireland to clear the distressed loans from it banks quickly. It looks to me that the government are following this line in order to accelerate the recovery. The cost will be borne by the Irish citizens who are in mortgage distress. , I actually find it hard to figure out who, apart from mortgage holders, should bear the costs relating to mortgage arrears.

I mean, it's inevitable that the taxpayer (ultimately) will face some costs with respect to irrecoverable losses. But it seems perfectly right to me that folk who can't afford to repay their mortgages get their houses repossessed, in exactly the same way as folk who can't pay their rent get evicted.

So, for me, this is a red herring.

I do see what you are saying regarding some folks who can't pay but are you saying that the banks should not take any responsibility here considering that they broke every rule and handed out to much money to folks.

JD Dublin

petronius wrote: »

Any one cost how much the new appeals court would cost?
One of the selling points of the anti-seanad campaign is cost, yet no mention of it .

Why is there no debate on an issue such as this - rather than the sound bites of the seanad referendum

Cost for the new court should be €3 million a year according to info I read, a small fraction of what our learned friends will earn from it no doubt.

Law Society and Bar Council recommend a ''Yes'' vote thereby confirming my opinion that this is a ''Pigs vote for new trough'' situation.

JD Dublin

Cody Pomeray wrote: »

Because the Government recognize that while most cases coming before the supreme court are not justified as such, we do still need a constitutional court to make determinations in matters of major national importance, e.g. Article 26 references, or constitutional challenges emanating from members of the public.

Article 34 of the constitution creates the Supreme Court as a final court of appeal, therefore the government cannot legislate to stop all manner of appeals ending up there - appeals which are of interest to nobody except the parties themselves, teetotal law students, and cranks.

Therefore it makes sense to create a new court of appeal for both civil and criminal cases, and to retain a constitutional court for questions of constitutional or widespread social concern.

The point of Edmund Holohan is that the current system should be worked better to be more effecient not setting up a new secretariat, pensions for the new judges, etc etc etc.

JD Dublin

Love nor Money wrote: »

It's a manpower thing.

Frankly thats not true from what I saw - the appeal I watched was in to the Supreme Court within about 3 months because the people pressing the buttons were (a) wealthy and could get good lawyers and (b) were owed a lot of money and had all the motivation in the world to get things done.

It takes 4 years to get an appeal from the High Court heard by the Supreme Court because they're understaffed.

I humbly submit that most of the appeals are bun-fights that are transferred to the Supreme Court as a delaying tactic. Just as for the Senate issue, we don't need more infastructure to deal with an organisational problem

The Irish Times series on the Supreme Court earlier in the summer said that they handle a lot more cases each year than the British Supreme Court and the American Supreme Court.

This is a case of comparing apples with oranges - the appeals handled by the courts in the UK and USA are actually points of law, in Ireland the Supreme court comes in at the end of bunfights where one party or another is unhappy with the result in a lower court. Another alternative to an appeals court is to raise the value of cases that can be dealt with in the Circuit and District Courts, thereby pushing cases down th efood chain and further from the Supreme Court in the first place.

If they bring it in then the existing supreme court will only do the very important constitutional cases and they'll be theoretically the smartest cookies in the box.

Don't know how many judges but in the greater scheme of things it seems sensible.

Of course they could just appoint more supreme court judges and have them sit 2 (or 3) courts at a time.

And of course the system of judicial appointments is untouched, so merit-based appointments are accidental rather than the norm.

Lets not even go there.....

Cody Pomeray

JD Dublin wrote: »

The point of Edmund Holohan is that the current system should be worked better to be more effecient not setting up a new secretariat, pensions for the new judges, etc etc etc.

You don't necessarily need to appoint any new judges. Judges of the supreme court and high court can be appointed as additional judges of the court of appeal.

Even in the current high court, you can have a supreme court judge presiding, and vice versa for the supreme court.

In any case, we need more judges. As far as I know, we have the lowest number of judges per head of population in Europe.

I'd predict a few extra judges, and the remainder of the Court of Appeal being served by Supreme Court judges when they are not required upstairs.

JD Dublin

Cody Pomeray wrote: »

You don't necessarily need to appoint any new judges. Judges of the supreme court and high court can be appointed as additional judges of the court of appeal.

Even in the current high court, you can have a supreme court judge presiding, and vice versa for the supreme court.

In any case, we need more judges. As far as I know, we have the lowest number of judges per head of population in Europe.

I'd predict a few extra judges, and the remainder of the Court of Appeal being served by Supreme Court judges when they are not required upstairs.

Can you not accept we are the world leader in cheapest-legal-system-per-head-of-population rather than looking to spend more money? Have we the most effecient legal system in the world? Why not? I can tell you we one the highest number of policemen per head of population in Europe, because I had to do a project on it in school.

Why not cut through the codology - there is no need for a new court - we should work the system that we have right now.

Just like other small democracies, we cannot afford the frills of a second house of parliment. The USA and the UK have Courts of Appeal - but their systems are way bigger than the Irish system.

234

On the UK comparison: our current courts structure derives from pre-independence times where we had a High Court and a Court of Appeal and then there was an appeal to the Privy Council/House of Lords in London. Post-1922 the Irish Court of appeal simple became the Supreme Court so we effectively lost a layer.

On the management of lists issue: at the moment a huge number of cases need to be initiated in the High Court. For ECHR reasons it is very important that there is an appeal mechanism in place for decisions of the High Court. Many of these appeals are pressing and need to be heard by an appellate court. They can involve pressing, time-sensitive issues that are of the utmost importance to the parties. However, they may not be of general public importance.

At the moment the SC hears these appeals, which, are perfectly valid appeals and not an abuse of the appeals process, are not really the kind of work that the highest court in the land should be engaging in.

If you free up the SC for cases of public importance then they can actually adopt a more aggressive case management system. Since cases would already have had their appeal, no new factual issues would have to be aired in court. The SC would consider pure points of law and court set limits on speaking time, etc. This is currently not possibly because litigants have a right to appeal and you can't just cut whole swathes of material such as factual disputes out of these appeals.

Clearly this is not going to be panacea for all problems in the courts system. Changing the monetary jurisdiction of the courts is an important first step. More use of IT is long overdue: e-filling in a must.

To those who say that Europe is forcing us to do this you should read the Dehman Report, which was prepared by the current Chief Justice, between 2006-2009 (i.e. "the good times"). As other posters have already mentioned we have one of the cheapest courts systems in Europe and one the lowest number of judges per capita. In the Report you can see that in 2009 Norway, a similarly sized country, had twice the number of judges that we do.

JD Dublin

To those who say that Europe is forcing us to do this you should read the Dehman Report, which was prepared by the current Chief Justice, between 2006-2009 (i.e. "the good times"). As other posters have already mentioned we have one of the cheapest courts systems in Europe and one the lowest number of judges per capita. In the Report you can see that in 2009 Norway, a similarly sized country, had twice the number of judges that we do.[/QUOTE]
What is the hang-up with the number of judges per head of population? This is coming up again and again.

Why should we bring up the number of judges per head of population? The system that is there works, and like democracy, it is messy and chunters along at it's own pace.

We are not the USA with a population of 313 million - we don't need a second house of parliament, we don't need a court of appeal. Neither are we the UK - population 63 million, same points apply.

Cody Pomeray

JD Dublin wrote: »

Can you not accept we are the world leader in cheapest-legal-system-per-head-of-population rather than looking to spend more money? Have we the most effecient legal system in the world? Why not? I can tell you we one the highest number of policemen per head of population in Europe, because I had to do a project on it in school.

Because I actually have evidence for what I am saying.

http://ec.europa.eu/justice/effective-justice/files/cepej_study_justice_scoreboard_en.pdf

As regards human resources, Ireland has 3.2 full-time professional judges per 100,000 inhabitants, compared to an EU27 average of 18.9 and an EU27 median of 17.9.

Our courts are also way under-staffed compared with European norms

http://ec.europa.eu/justice/effective-justice/files/cepej_study_justice_scoreboard_en.pdf

Overall, there are 25.6 persons (judges and non-judge staff) working in the court system per 100,000 inhabitants, compared to an EU27 average of 103.7 and an EU27 median of 92.3

The USA and the UK have Courts of Appeal - but their systems are way bigger than the Irish system.

Having a court of appeal has nothing to do with the size of the country. Even small countries cannot have a situation where a handful of judges are to be the final appellate court for all cases. We won't need a big supreme court in future, because the judges can be consumed by the court of appeal (although extra judges, on lower pay, are clearly merited).

I am fully in favour of cutting costs of legal services. They are already incredibly low for ordinary barristers, for example. It's senior barristers who have ordained themselves with a higher rank and made legal representation un-competitive. The new Court of Appeal is only one needed reform in a long list of reforms of the Irish legal landscape.

JD Dublin

Cody Pomeray wrote: »

yeah but I actually have evidence for what I am saying.

http://ec.europa.eu/justice/effective-justice/files/cepej_study_justice_scoreboard_en.pdf




Our courts are also way under-staffed compared with European norms

http://ec.europa.eu/justice/effective-justice/files/cepej_study_justice_scoreboard_en.pdf


Having a court of appeal has nothing to do with the size of the court. We won't need a big supreme court in future, because the judges can be consumed by the court of appeal (although extra judges, on lower pay, are clearly merited).

I am fully in favour of cutting costs of legal services. They are already incredibly low for ordinary barristers, for example. It's senior barristers who have ordained themselves with a higher rank and made legal representation un-competitive. The new Court of Appeal is only one needed reform in a long list of reforms of the Irish legal landscape.

I have no evidence for what I say because it is self-evident - why bring us up to a level of possible over-staffing that exists in other legal systems??

Cutting legal costs - agreed.

How will you pay for the CCA? By cutting staff numbers / pay of the Supreme Court staff / judges?

johnnyskeleton

Javan wrote: »

What I don't get about this referendum is why the problem cannot be solved with legislation and additional resources for the existing supreme court.

I understand that the major (stated) reason for this referendum is the silly backlog on cases to be heard by the supreme court. Clearly this must be fixed in the interest of justice. It is patently unjust to have this long delay for no reason other than a lack of available court time.

There is nothing in the constitution that limits the size of the supreme court. It could easily be expanded beyond the current seven members by legislation, and no matter how you solve the problem of the backlog you will need more judges and more space for them to operate.

... so if the problem can be solved by legislation, why are we having a referendum?

I think it could be introduced by legislation only in the same way as the CCA is or the way some appeals to the SC need a certificate. However, it would be better if the CCA and the new court be statutorily appointed. It would also be better if they were fixed judges and not HC/SC judges sitting in a different venue for one day a term.

As for not just expanding the current SC, there is a risk that two different panels could contradict each other (there have been a few instances in recent years where one high court judges decision has been different to another's, and it creates a very awkward position. Such a division would be untenable in the court of final appeal. So a smaller Supreme Court of 7 judges who always sit in 5 or 7 would be ideal.

Maybe an alternative would be having a criminal/admin law branch of the Supreme Court, a constitutional and human rights division and a general civil division and thus the risk of disagreements would not arise.

GCU Flexible Demeanour

BinaryFinary wrote: »

I do see what you are saying regarding some folks who can't pay but are you saying that the banks should not take any responsibility here considering that they broke every rule and handed out to much money to folks.

Its clear that the banks made very poor commercial decisions, but I'm not clear on what rules were broken. That said, I'm mindful of the need to avoid dragging this thread off-topic. There isn't that much discussion of this proposal; my main point is simply that I don't see the issue of mortgage-related appeals as pivotal. Appeals are either vexatious, in which case the change made should be aimed at reducing those appeals, or they are not vexatious, in which case the solution isn't to set up a new institution that will clog up the system with even more appeals.

johnnyskeleton

Cody Pomeray wrote: »

Article 34 of the constitution creates the Supreme Court as a final court of appeal, therefore the government cannot legislate to stop all manner of appeals ending up there - appeals which are of interest to nobody except the parties themselves, teetotal law students, and cranks.

Actually they can and have done in cases such as immigration, crime and extradition to name but three. This legislation was upheld in re: illegal immigrants bill 2000. There is also no constitutional infirmity with appeals from the district to the circuit and circuit to the high being final and unappealable.

In reality the only things that they can't curtail are constitutional challenges, article 40 inquiries and any other proceeding that is expressly provided for in the constitution. Maybe a blasphemy prosecution.

johnnyskeleton

oscarBravo wrote: »

Not my reading of it. As I understood it, it allows judges to write dissenting opinions, rather than requiring them to do so. I think this is a good thing; it can be interesting to see the different (often ideological) approaches that SCOTUS judges take to an issue.

Agreed. Dissenting opinions allow them to revisit decisions made earlier which they don't agree with. I doubt any Supreme Court judge would uphold the interpretation of marriage and the de facto family decisions of the 1960s and 70s if they weren't bound by them.

johnnyskeleton

AndonHandon wrote: »

What improvements will be made to the Supreme Court appeals process?

More courts sitting, more judgments, more appeals processed. I suppose it is hoped that a three judge court of appeal can hear and determine more cases than a 5 court Supreme Court, whose decision is final and unappealable forevermore.

What is the cause of the backlog?

Too many cases for one single court to hear.

If there are no changes to the current appeal process being implemented then I would see this as throwing money at a problem to make it go away.

The cost of the court itself is notional, but yes ultimately we need more judges sitting more often to get through the cases. This applies at all levels of the courts.

The number of appeals is going to increase dramatically as a result of a perception that it is a more efficient process.

Perhaps, but it's not exactly fair or just if a 4 year delay is preventing someone from appealing what they believe is a wrong decision.

Equally, it could reduce the number of appeals that are only intended to delay matters.

johnnyskeleton

JD Dublin wrote: »

Cost for the new court should be €3 million a year according to info I read, a small fraction of what our learned friends will earn from it no doubt.

Law Society and Bar Council recommend a ''Yes'' vote thereby confirming my opinion that this is a ''Pigs vote for new trough'' situation.

I bet if they advocated a no vote you would vote yes, telling everybody that it is Alan Shatter sticking it to the greedy pigs. You just can't win with some people.

JD Dublin

johnnyskeleton wrote: »

I bet if they advocated a no vote you would vote yes, telling everybody that it is Alan Shatter sticking it to the greedy pigs. You just can't win with some people.

I bet if they advocated a no vote you would vote yes, telling everybody that it is Alan Shatter sticking it to the greedy pigs[/QUOTE]. - no not really, what irritates me is that this innocous referendum looks like it will get passed ''on the nod'' when there are many other things that need fixing, when most people agree that the senate should be abolished on the basis of cost cutting and yet we are establishing a new court with all the attendant costs ( €3 million per annum )

You just can't win with some people [/QUOTE] true in general but not with me...think about it.

I have a few questions regarding the appeals court referendum. I'd appreciate if anyone could answer them with certainty rather than general conjecture, as I'm still undecided on how to vote, and am concerned about unneccesary constitutional change and dissolution of democracy.

My key question is as follows: Given the direct and secondary costs and complexity involved in setting up a new appeals court system, how does it make sense to do so to solve what seems primarily like a resource issue? Is there a concrete benefit, and if so what is it??

I understand that there is an issue with backlog of nationally "unimportant" or "less important" non-priority appeals cases in the supreme court, but apart from these long delays, (which are clearly unacceptable and impeding access to justice for a great many people) what is the problem with the supreme court process in how it deals with these cases? Aside from the delays, are the cases being handled fairly, prudently, efficiently? Would it not make more sense to properly resource the high court, hire more judges, clerks, administrators etc, and reduce the backlog from years to months while retaining the current structure? Why is it necessary to spend money creating a new court in order for a backlog to simply be moved directly in to there?

Is it a matter of five judges needing to sit on what amounts to an interpersonal appeal hearing on a civil matter, rather than one judge presiding in a court of appeal?

Where is the clear benefit in setting up a court of appeal which can't be achieved by means of properly resourcing the court system we have at present, and why are we going to all the trouble if there isn't one?

I'm concerned that voting yes here may implement, via the back door, other "tacked on" measures such as the ending of the "one judgement" rule which (along with the increased power given to the Dáil over sitting judges should the seanad be abolished) may not be in the best interests of democracy.

Is this more than simply a question of resources, and can someone please explain how? Why, with all the constitutional change we need at present, are we holding a seemingly innocuous referendum to do something that on the face of it doesn't seem completely necessary?

234

Ultimately it is a question of resources.

There are currently 38 High Court judges and 8 Supreme Court judges. Nearly every High Court decision can be appealed to the SC. In many cases the High Court is the first time that the case has been heard so there has to be a right of appeal.

So this is how the bottleneck is created. One way or the other there need to be more resources at appellate level to deal with all the cases being dealt with by the HC.

So this has to take the form of either a vastly expanded SC or a new Court of Appeal. Neither of these is the entire solution and would need to be coupled with more aggressive case management to weed out nuisance appeals at an early stage.

I am in favour of the new CA. I don't believe that we should have an SC of ~12 judges sitting in three or four panels at a time. I think that this would create two problems. First, there would the risk of divergence between difference decisions of the SC as the court would be increasingly fractured. Secondly, I don't think that a lot of the appeals that the SC currently deals with are really the kind of work that the SC should be engaging in. I agree that they should only consider new points of law, matters of general public importance, constitutional matters, etc. As it currently stands the SC deals with a variety of appeals. Even if you root out the unmeritorious ones there are still a lot of valid appeals, but on pretty mundane matters that should really be dealt with by a CA. This would free up the SC to give more consideration to the important stuff.

Granted, all of this needs to be coupled with more reform of the courts system. Reducing the vacations, e-filling, better case management, etc can all improve things. However, they cannot solve the fundamental problem of the bottleneck adverted to above. Litigants have a right of appeal and you can't simply eliminate that for costs reasons.

This is the Report of the Working Group on the Court of Appeal 2009. It was chaired by the then Ms Justice Denham (now Chief Justice). It comes down in favour of a new CA and I believe that the treatment and consideration of the issue in the report is convincing.

The Court of Appeals issue is really separate from the one-judgment rule. It was a bad idea to include them int he same proposal and I will leave somebody else to deal with that.

234

234 wrote: »

Ultimately it is a question of resources...

Thank you very much indeed for your post. It was concise, very straightforward and has answered many of my outstanding questions. I'll bear it all in mind in deciding how to cast my vote.

With regard to the one judgement rule, and in particular any issues which might come up as a result of new powers over appointing of judges going to the Dail( should the Seanad be abolished) why is it being proposed? Why is "one judgement" a bad thing? Surely a panel decision is a panel decision for good reason?

Individualising judges decisions can only serve to colour powerful politician's opinions on any particular judge's political leanings, whether he/she should/should not be appointed based on their political goals. Correct?

Is that really information that should be in the public domain?

234

I'm not as fluent in this area but the basic pros and cons of the one judgment rule are:

Pro- the SC speaks with one voice on matters involving the constitutionality of a statute passed by the Dail. This ensures that no linger doubt is left once the decision has been made. People can be assured that the law in constitutional without somebody saying "But in his dissent Mr Justice So-and-so said...". When it comes to matters of the constitutionality of a law which we all need to plan our daily lives around we need to be sure what the situation is.

Con- the law is always changing. The SC can revisit its decisions. Circumstances change and the law can be seen in a new light. Constitutional rights develop and mean different things as time goes on. We shouldn't stifle a dissenting voice when it could potentially provide an easier avenue for changing the law/revisiting a decision in the future. Often notable dissents in important cases are the basis for future judicial mind-changing. We are depriving ourselves of the value of what might be a well-considered and reasoned judgment that would be interest to constitutional scholars, the public, politicians and could help provoke debate on whether the Dail should change a law/the constitution once after the SC has arrived at a decision.

On the issue of impeachment: as much as I despise so many politicians as intellectual bankrupts I don't think that this is a big issue. Attempts to impeach are incredibly rare and, even though it pains me to say it, I don't believe that the government would really try to remove a judge from office because it didn't like his/her decision.

234

234 wrote: »

...On the issue of impeachment: as much as I despise so many politicians as intellectual bankrupts I don't think that this is a big issue. Attempts to impeach are incredibly rare and, even though it pains me to say it, I don't believe that the government would really try to remove a judge from office because it didn't like his/her decision.

many thanks for your post, again.

Having looked into the issue of impeachment, it does seem a rather drastic course of action to have to take to remove a judge, president, etc. I doubt it could stand up to scrutiny were it to be used maliciously, and a two-thirds dail majority (in lieu of 2 simple majorities, one in each house) would necessitate a broad, cross party agreement on reasons to impeach.

I think that's my mind mostly put to rest on that issue. Although i still have misgivings about the openness of the position of individual judges going on the record (given that the government of the day nominates them at it's whim) i think on the whole, a judge recording a dissent in a landmark SC case might act as a cautionary note, and serve the interests of justice more than it harms democracy.

From the referendum commission's website:

refcom.ie wrote:

Removal of Judges from office

Judges of the Supreme Court and the High Court may be removed from office for stated misbehaviour or incapacity only if a simple majority of the members present and voting in each of the Dáil and Seanad pass resolutions to that effect.
If this referendum is passed:
• Judges could be removed from office for stated misbehaviour or incapacity if at least two-thirds of the total membership of the Dáil so decide.

It seems that the reasons to vote against are looking fairly scarce, for me. I'll need to verify and think on it a bit, but given that a broad range of people are getting behind it i can't see how it won't pass..

Alan_P

Deleted User wrote: »

many thanks for your post, again.

Having looked into the issue of impeachment, it does seem a rather drastic course of action to have to take to remove a judge, president, etc. I doubt it could stand up to scrutiny were it to be used maliciously, and a two-thirds dail majority (in lieu of 2 simple majorities, one in each house) would necessitate a broad, cross party agreement on reasons to impeach.

I think that's my mind mostly put to rest on that issue. Although i still have misgivings about the openness of the position of individual judges going on the record (given that the government of the day nominates them at it's whim) i think on the whole, a judge recording a dissent in a landmark SC case might act as a cautionary note, and serve the interests of justice more than it harms democracy.

From the referendum commission's website:



It seems that the reasons to vote against are looking fairly scarce, for me. I'll need to verify and think on it a bit, but given that a broad range of people are getting behind it i can't see how it won't pass..

To be clear,the increased majority to remove a judge comes into effect if the amendment to abolish the Seanad is passed. It's nothing to do with the amendment on the new appeal court.

oscarBravo

Deleted User wrote: »

Individualising judges decisions can only serve to colour powerful politician's opinions on any particular judge's political leanings, whether he/she should/should not be appointed based on their political goals.

We're talking about the Supreme Court, though - a judge that authors a minority opinion has already been appointed, and has nothing to fear from the government (other than the unlikely prospect of a rogue impeachment).

Alan_P

Alan_P wrote: »

To be clear,the increased majority to remove a judge comes into effect if the amendment to abolish the Seanad is passed. It's nothing to do with the amendment on the new appeal court.

Yes i know that. I'm looking at the two in tandem. If anything i would expect it would be harder to impeach should the seanad be abolished, as a two thirds majority in the dail would likely be harder to get than a simple majority in both houses which are essentially controlled by the government of the day.

Thank you for the clarification though.

oscarBravo wrote: »

We're talking about the Supreme Court, though - a judge that authors a minority opinion has already been appointed, and has nothing to fear from the government (other than the unlikely prospect of a rogue impeachment).

After clarifying the stance on impeachment (with regard to the seanad referendum) I'm now more concerned about that same judge never becoming an appointee to the bench at the behest of the NEXT government...

Presumably over time, dissentions, and stances against the state in major cases could build up to give a picture of a SC Judge's "form". As the government nominates judges for the president to appoint at it's sole discretion, usually upon it's election, i was concerned about the government picking and choosing judges who might give verdicts that are likely to suit it based on past form.

Couldn't dissensions too be given on a panel basis? Why do they have to be attributed to any particular judge?

It's only a small concern, and is probably outweighed by the good which will be done should the Appeals Court proposal pass, but i would see it as the same kind of small chip away at the separation of powers we had when the people voted to allow the government themselves the power to cut/amend judges pay in the thick of a storm of recession scaremongering, instead of creating an ombudsman or arbiter do it independently on behalf of the people as is done in many other countries.

Yet another minor Fine Gael power grab which went largely unnoticed, but i digress...