Que sera, sera

Irish lawyers, arguably, are in denial. They have done little or nothing in response to the introduction of the Civil Procedure Rules (“CPRâ€?) in the UK.

Perhaps we should continue as we are. If so, and if that has been decided, it was decided in some forum to which I, for example, have no access, even to observe. Perhaps the decision has not been made. What should we decide?

Well, it is an attractive proposal that the overriding objective of CPR is declared to be:

…a new procedural code with the overriding objective of enabling the court to deal with cases justly.â€?

It is hard to think we will meet dissent (open, at any rate) to that. But we will. One man’s “justiceâ€? is another man’s “injusticeâ€?.

In anticipation of argument on the point the framers of the CPR elaborated on the word “justlyâ€? as follows:

1 (1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.

(2) Dealing with a case justly includes, so far as is practicable –
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate –
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly; and
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.’

There are serious problems with this. It opens an ocean of opportunities for the application of individual, personal judgment. For many, that would imply not adherence to a Rule of Law but to the exercise of potential, if not actual, arbitrary power.

The issue is very important. According to John Rawls;

Justice is the first virtue of social institutions, as truth is of systems of thought.”

Even to debate these issues is dangerous. As a consequence of the current dominance of the Executive over the Legislature in Ireland, there is no assured safe forum to hold a debate. It would be very easy to hijack the debate and use it as a cover to introduce something similar to the deplorable idea that the Irish Commercial Court should have a jurisdiction over “Judicial Reviewâ€? issues.

That idea has become a reality and is embodied in Statutory Instrument No. 2 of 2004. (Consequently, “Judicial Reviewâ€? is within the jurisiction of the Commercial Court.) The London Commercial Court has no such jurisdiction.

There was no debate in any forum known to me prior to the introduction of this profound, far-reaching, idea.

It could be objected that the thesis is flawed; why should Ireland be concerned by or with the UK procedures?

The answer is found in the fact that we still look to the UK case law as a source of precedent. UK cases have no binding force in Ireland, but they do have strong persuasive power. If for nothing else this happens because a particular set of circumstances is more likely to occur first in a more populous place (the UK) than here. Therefore, the resolution of any problem may already have been formulated there when it needs to be applied here.

Consequently, it is a practical necessity (from the Irish point of view) that the basis for judicial decision in the two jurisdictions be similar.

Before CPR the UK rules were published in “The White Bookâ€?. This, a much larger volume than the Irish “Rules of the Superior Courtsâ€? was, conceptually like our RSC.

But that is no more.

What is to be done? That is the subject of the missing debate.

I would like to hear that debate and would be particularly attentive to proposals directed to;

ensuring that the parties are on an equal footing;”